My letter to Senate Republicans

The citizens who visit, contribute to, and discuss the American Judiciary at CourtZero.org have asked me to send you the following message on their behalf. Thanks to the internet, people – regular folks without law degrees – are able to scrutinize, digest, and discuss the actions of the Judicial Branch of our government in a way that was not really possible only a few years ago. The people are concerned.

Many of your constituents are concerned that the courts have become an oligarchic de facto one-branch government with the final word over all issues. It is our experience that people who vote and support the Republican Party care deeply about the power that judges wield, once those people are given the opportunity to read the Constitution for themselves and to compare it to actual court opinions. With all respect, we suggest to you, our Senators, that the United States Senate today lags behind its constituents in the understanding that checks and balances on the Judiciary are purely theoretical, without practical effect, and not in any meaningful way exercised by our elected representatives. People are becoming aware that the power of their votes is no power at all as long as judges always get the final say in every conceivable aspect of any legislation passed by our representatives.

Many have marveled at how even the Senate of the United States of America seems content to function essentially as a large body of staff attorneys for the Supreme Court, not actually making laws, but merely suggesting laws with the hope that the suggestions might find approval from the Justices. More people than you perhaps realize understand that it is even worse than that, as our Senate is now only one of several sources of “suggestions” for what law the courts shall hand down, along with others for whom Americans cannot vote, such as foreign judges cited as authority for recent Supreme Court decisions.

We lend you our courage and support to restore to us a functioning and balanced three-branch system of representative government. Please, end the filibuster and give us judges who respect our Constitution. You are not alone as you take that step; we are behind you.

Translation for those born in the last ten years

I can appreciate your confusion. Newspeak, being another language, can be difficult to grasp if English was your first language and you understood it.

The word "migrant" now officially means "illegal alien". That means, of course, that there is actually no Newspeak term for legal immigrant anymore.

And the Band Played on

CourtZero message board member Heather brings this to our attention:

As of the close of this edition, Clara Martinez, 39 years old and mother of two children aged five and seven years – had been almost 30 days without food and was still alive, taking only water.

...her husband Salvador Martinez, 35 years old and also Mexican, resolved that his wife should not live artificially. He signed a “Do Not Resuscitate” order to keep her from being revived artificially and disconnected the feeding machine. [her biological family disagrees]

In the interview [her pastor] said that when he was with the wife, “she moved, opened her eyes, and when we prayed and sang together by her bedside, she blinked as though she was listening.” He said it was also significant that, in spite of her condition, the woman was still “able to take water.”

Score another one for the Global Death Cult.

Pirate Radio!

Here is the audio of my interview with Free Market News about living wills.

Probate Judge Recuses Himself

In the Mae Magourik case, spoken of a couple posts down, it is now reported that the probate court judge (the one who gave emergency guardianship power to the granddaughter who wanted to cease allowing Mae food and hydration), has recused himself from the case.

I believe that to be a wise move. Exercising judicial power appears most legitimate when judges do not seem to be defiant or protecting their turf. The folks over at blogs for terri, after some interviews, say that the judge is an honest man.

I do not know if he is or he is not, but will in the absence of other information assume that he is a decent jurist and a good man. That in itself illustrates something important, given the almost disasterous outcome of Mae's case: we need not demonize judges and describe them as possessing evil personalities in order for the judiciary to be dangerous. Sometimes they simply make mistakes. Sometimes, as in this case, they are empowered to make life and death decisions (or to hand the power over life and death to a third party) entirely too quickly -- on an "emergency" basis -- and with hardly enough information and evidence before the court.

In that respect wide-ranging guardianship reform is needed in a general sense. I've read reports that the attorney for Mae's nephew -- who wanted Mae's living will to be followed and for her to be treated -- was not permitted to cross-examine the doctor testifying essentially for the guardian's position. If this is true, it mirrors precisely what happened in the hearing concerning Sun Hudson in Texas. The evidentiary standard in these cases is entirely too low, and in my opinion, substantive due process for the patient is often illusory.

There are few things more annoying...

...than a woman telling me how to relate to other men...or to describe such things as a "man date".

It's not that I don't expect anything less from the New York Times than to report with the apparent intent to screw up any good thing that exists on the planet; in that sense the article is not a suprise.

Simply defined a man date is two heterosexual men socializing without the crutch of business or sports. It is two guys meeting for the kind of outing a straight man might reasonably arrange with a woman. Dining together across a table without the aid of a television is a man date; eating at a bar is not. Taking a walk in the park together is a man date; going for a jog is not. Attending the movie "Friday Night Lights" is a man date, but going to see the Jets play is definitely not.

WTF? I know how to hang with guys. I really do. I really, really, do. I know how to drink myself silly with a long-lost Army buddy. I know how to chuckle with proper self-efacement with guys I played football with once long ago. I know how to see a concert, attend an art exhibition, or whatever the hell with a fellow male who happens to be a buddy without seeing larger feminizing implications because we happen to be friends.

We're men. We're not women. Therefore when we hang out as men, it's because that has some value not superior to, but different from, hanging out with women. We don't have to fish or watch sports to do it, but those things are good pursuits with other guys.

If you've clicked on the NYTimes link (home of Dexter Filkin), can you figure out what the point is? I think soon I'll post an article so that women will get over their wrong-minded mindsets and finally be able to visit a bathroom together without the help of a NYTimes article, written by a man, that tells them it's o.k. to hang out with other women......just so long as it doesn't involve anything very...womanly...

Last thought: In case the New York Times and its female writers haven't realized it, and clearly they have not, men know how to spend time together. Aren't there REAL problems to write about, like increasing breast cancer research funding?

Sun Hudson, Terri Schiavo, Mae Magourik

Living will be damned, if Dr. Stout tells Judge Donald Boyd that he knows all about your living will, and that it says to keep feeding and treating you, but the doc doesn't feel like your life is worth bothering to feed you or allow eye drops for your drying glaucoma inflicted eys, then so be it.

Your life isn't yours. It belongs to whatever doctors and judges happen to cross your path. And your living will does not protect you. In fact, they don't even bother READING them, since they always, always, presume that you should die if it is in question.

The gavel falls, the judge rules.

We kill another woman by starvation and dehydration.

Read the linked article. The Global Death Cult marches on, and from where I sit, you don't care.

Go to CourtZero.org and join the fight, now. The life of someone you love will depend on it some day.

The Brave Government Coalition 2006 is launched

The Brave Government Coalition 2006 is a grassroots effort to band together citizens to run for political office on a platform of taking the culture back from judges. It has promise, if it can get some attention.

DO NOT get a living will

You heard me correctly. Do not get a living will. This is a difficult thing to propose. In the aftermath of the Terri Schindler-Schiavo case it seems practically mandatory that each and every one of us go and get one. The accepted wisdom is that having a living will would prevent a situation like Terri's from happening to us. To many people that means that they don't want crazy fundamentalists and elected officials messing around with their wishes. That's fair enough. But many others want to ensure that they will be treated and allowed to live under the best care available should they become disabled, even if an interested party thinks that they should go ahead and die. It's to the latter class of people that this warning is directed.

I am an attorney, and don't expect to see this article greeted warmly. Indeed, will be a turncoat because even if an attorney charges only 50 or 100 dollars to prepare a living will, if everybody has to do it now, that is a pretty good stream of income. I expect, rather, to be vilified as a cretin, a rube, a legal heretic, and other derogatory nouns as well. I feel a little like the character in the 1973 movie who first declares, "Soylent green is people". The piece you are reading is not likely to be popular in the current climate.

Here is why I believe it to be a bad idea to get a living will right now. Let's start from the default setting; that is, if you become disabled and can no longer express your wishes, and do not have a living will, the common law, decency, tradition, and the ethics of the medical profession will err on the side of trying to heal you and of preserving life. That's not a bad default setting, if you indeed value your own life.

Before I explain what the now en vogue and practically mandatory living wills actually say and do, I'd like to provide some context for my conclusion. It is axiomatic that lawyers and judges can take practically any words with otherwise simple meanings and turn them into other meanings and previously uncontemplated conclusions, and they do so at will. If you get words like, for instance, "The Congress shall make no law restricting free speech" before a judge, it is quite likely to come out meaning "you may not run political ads against an incumbent in the last 60 days of a campaign."

That's how it is when people attempt to reduce human desires and behavior, and yes, moral judgments, to a piece of paper. For example, I have long thought that the various codes of ethics regulating the behavior of attorneys do not, in fact, cause bad lawyers to behave better, or cause good lawyers to be the best they can be. Instead, it gives lawyers a road map for precisely what they must do and say to get away with bad behavior. They don't require that attorneys do the right thing, instead they inform them that "if you don't do this, or this, in precisely this way, you will not get in any trouble." And so it seems to be with evolving field of living wills and the medical profession. They do not in any way require that your wishes actually be fulfilled, but instead provide the mechanism to get around what may be your wishes.

Today I read the Bar-sanctioned model living wills available on the websites of the Florida, New York, and California bar associations. These three big states are bellwether states and a good indication of where all of us are heading.

As ground zero for the Schiavo effect; and since all three state's living wills are quite similar in practice, I will review Florida's suggested living will. I invite you to look it and the other up for yourself. Florida's is one page long, and requires one to place check marks in up to four places. Your first choice is to pick one or all of the following: "if I have a terminal condition, if I have and end stage condition, and if I am in a persistent vegetative state."

What "terminal condition" means is not defined. Presumably it would apply if you have inoperable cancer, or any number of conditions that are always terminal (like being born), no matter what the prognosis is as to how long you might yet live. These options also do not make any mention of whether medical care might prolong your life, regardless of prognosis.

Once you've chosen from among one or all of those conditions, not defined, you then check a box indicating that you would either desire or not desire to have food and water withheld from you. There are no other options on the Florida Bar's favored form for a living will. There is no distinction between mechanical life support, such as a ventilator, and food and water. If you indicate that you do desire food and water withheld, then the doctors can do pretty much whatever they want to do with you. If you indicate that you do not want food and water withheld, that still leaves wide open the question of whether or not they have any duty to provide any other treatment at all. Words like "heroic measures" do not appear on this form; your choices are, dehydrate and starve me to death, or not. There is no in-between.

What's more, and this is where it gets interesting, the trigger for your "wishes" to be carried out is when your "physician and another consulting physician have determined that there is no reasonable medical probability of my recovery from such condition". Who your physician is is likely to be accidental. He or she will be whomever a hospital happens to assign to your care, most likely, and the consulting physician will most likely be a friend and colleague of the first physician, and will probably work in the same hospital. The form does not require any review of their opinion nor does it state any particular standard of proof. It could simply be on the basis of whim, or even malice, so long as they have "determined" their opinions.

And how shall they determine whether or not you are hopeless and thus should die? The standard on the living will form is "reasonable medical probability." That seems reasonable, but in practice, it means only one thing: your wishes are not the driving force in your care under a living will, rather, your signature on your living will gives the doctors the ability to stop treating you and watch you die, period. If the doctors go to court and tell the judge that there is a "reasonable medical probability" that you will not recover from your condition, it is very, very unlikely that a judge will be in a position to disagree with their testimony and rule that they are incorrect.

Thus, in the case of the living will forms of the three states that I have reviewed tonight, your signature places your fate in the hands of doctors. Your personal desires actually have no meaning at all, even though it seems so on the surface. Instead, signing a living will seems to be nothing more nor less than signing your life over to others so that they may not be held liable for what they do (or do not do) to you.

There is something disconcerting about the loud and unanimous call from nearly all pundits and news outlets that each and every one of us must go out right now and sign one of these. The effect will be to bring the Dutch Groningen Protocols to America, one patient at a time.

As for me, and for the time being, I would prefer to have no living will at all and make the doctors try to justify their unwillingness to continue treating me, instead of giving them a piece of paper that allows them to stop treatment whenever they want to do so. If it's about choice, these living wills are not the way to get there. I'm still a lawyer though, and I still have to make a living, so if you want one, I will draft yours for only $75. All I have to do is visit your state bar's website, print it out, and provide two witnesses. Easy money.

A Florida lawyer responds to the Bar president

Poking around the Florida Bar website, the operation of which I help to pay for with my mandatory annual dues, I noted that the Bar President, Kelly Overstreet Johnson, had issued a press release titled Bar President Denounces Attacks on Judiciary. Uh-oh. That makes me feel as if I'm about to be called to the principal's office.

The press release gets right to the point, starting with "The tragic and high visibility case of Terri Schiavo has resulted in an unprecedented and unjustified attack upon our judiciary." That line worries me. It implies that any Florida attorney who "attacks" the judiciary is prejudged by the President of the mandatory Bar Association to be unjustified in doing so. That line worries me enough to read further to find out what my Bar president believes constitutes an unprecedented and unjustified attack.

And we find out. In her words, "it is entirely unacceptable and unfair for our judges to be criticized and even vilified when no judicial basis for such criticism exists." Ms. Overstreet-Johnson, I can't for the life of me figure out what you might consider a "non-judicial basis for criticism." If the average Joe, not possessing a law degree, can't identify a "judicial basis" to criticize judges -- who are public, government officials, often elected -- then the masses are simply not permitted, in your world, to question those with the power to remove one's life from him or her. In that one sentence, you establish yourself a true elitist, apparently oblivious to the true fear of judges that Americans are uneasily beginning to discern. Beside that, it is a ridiculous notion. You seem to suggest that as long as a judge is above criticism "judicially", he cannot be criticized at all, for anything. If you mean what I say, then I suggest that you lobby to get Judge Apte and Judge Henson back on the bench immediately, and do it with a press release just like this one (these are two Florida judges who recently had troubles completely unrelated to their actions and rulings on the bench). Oh, but that's different, isn't it? It's one thing for the Judicial Qualifications Commission to criticize, and even punish, judges on something other than a "judicial basis", but for actual people to do it? No, that is not to be permitted.

Then my Bar president tries to bring me into this: "Judges are limited by duty to responding to such unfair criticism. But Florida’s editorial boards, community leaders and the 75,000-member Florida Bar are not." To that I can only reply, "Not in my name, Madam President."

Here's my favorite part of the press release (you really should hit the link above and read the whole thing): Judge Greer is an ideal representative of the type of judge citizens want to hear their case. His rulings are based on laws, not emotions and not politics. I guess the Schindlers are not "citizens" in the eyes of the president of the Florida Bar. Really, those two sentences are just laughable. We lawyers know judges better than that, don't we?

The sum total of this press release is the same thing echoed by all of the oligarchy-now crowd. You do not express the slightest compassion or understanding of the fears of disability advocacy groups, for instance. You do not recognize that non-lawyers have any informed basis to ever criticize a judge, and you just come out and say so. You presume to cite all 75,000 members of the Bar to be behind you. Kindly revise that to 74,999. You are not only defending Judge Greer, you are essentially declaring him to be perfect, an ideal.

This is over the top, Ma'am. You and I understand the Rule of Law very differently.