May 05, 2005

Judicial Activism and the Right

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So what's the definition of judicial activism? When a judge defies the law in favor of his or her personal political agenda. That's something most people can agree upon. But the question is, are the charges of judicial activism being blasted out shotgun-style by conservatives justified? Well, let's take a look. Here's a rant by a right-wing writer in the National Ledger on the subject:

Circuit Court Judge George Greer of Florida is an activist judge. In the days leading up to the removal of Terri’s feeding tube, Judge Greer made four lawless findings.
What were the findings she found to contradict the law?
1. [H]e denied a request by the Schindler family for relief based on an earlier mistake he made. At an earlier hearing, Judge Greer allowed the self-serving hearsay statement of Terri’s “husband” Michael to qualify as evidence that Terri did not want to live in a persistent vegetative state. Hearsay is a legal term for a statement that is told through another individual. Because of the inherent untrustworthiness of such statements, Florida law forbids the admission of hearsay statements as proof in situations like Terri’s. Judge Greer ignored that law.
This is the most oft-quoted attack on Greer as an "activist" judge: the "hearsay" argument. It's clearly gotten through the fundamentalist grapevine because anti-Greer posters always use this point. And, of course, it's dead wrong.

The fact is, Florida law allows hearsay to be admitted in court under some 30 or so special circumstances, but this 1990 High Court ruling is what says it most clearly:

The [court acting as] surrogate must be satisfied that the patient executed any document knowingly, willingly, and without undue influence, and that the evidence of the patient's oral declarations is reliable;
The statute clearly allows for "oral declarations" to be acceptable as evidence. That's the key point, but the whole legal argument is here; read it all for clarity. In short, Greer was acting within the law when, as surrogate guardian of Terri, he judged as to her wishes in the case as best he could with what evidence was available. And as that decision was legal (as was upheld in higher courts, right up to the U.S. Supreme Court, and by a large number of conservative judges), Greer's denial of relief against that decision was valid, as was also backed up by higher courts. It was also backed up by a physician reporting directly to Governor Jeb Bush:
The court then served as proxy decision maker, essentially assuming the role of legal guardian. The privacy interests of the person, as established in the Florida Constitution, and as articulated with specificity in Browning (In re Guardianship of Browning, 568 So. 2d 4 (Fla. 1990) ) served as the legitimate legal bases for the court’s conclusions to withdraw life support consistent with Florida Statute, 765.
2. Judge Greer denied the Schindler family’s request for more medical tests. Because the removal of Terri’s feeding tube was based upon a finding that she was in a persistent vegetative state (“PVS”), that diagnosis had to be accurate. The Schindler family contested the PVS diagnosis. Florida law requires medical tests demonstrating that the PVS finding be “determined and diagnosed as permanent prior to the withdrawal of life-prolonging means.” The permanence of Terri’s PVS state was called into question, but Judge Greer ignored the common sense questions and the law.
Terri was examined by many physicians who testified in court:
Through the assistance of Mrs. Schiavo's treating physician, Dr. Victor Gambone, the physicians obtained current medical information about Theresa Schiavo including high-quality brain scans. Each physician reviewed her medical records and personally conducted a neurological examination of Mrs. Schiavo. Lengthy videotapes of some of the medical examinations were created and introduced into evidence. Thus, the quality of the evidence presented to the guardianship court was very high, and each side had ample opportunity to present detailed medical evidence, all of which was subjected to thorough cross-examination. It is likely that no guardianship court has ever received as much high-quality medical evidence in such a proceeding. [bold emphasis mine]
Of course the physicians disagreed, due to their respective biases (though the court's own physician declared that Terri was in a PVS), so the judge had to listen to the arguments and decide; that he decided for the determination of PVS is not unlawful, it is simply not what the right-wingers wanted.

And as for the allegation that Terri's medical state was "called into question," of course it was called into question by the Schindler's lawyers; that does not mean that adequate evidence was not presented. If all an attorney had to do was question the evidence, the judge would never be able to come to a conclusion. There was more than sufficient examination and presentation of evidence; the right-wingers simply don't like what the judge decided was more convincing. But the judge was fully lawful in that decision.


3. in an astounding decision, Judge Greer denied the Schindler family’s request of oral reintroduction of food and water after the removal of the feeding tube.
This is sheer idiocy. Of course he denied it, because the medical evidence told him that Terri could not swallow. Were someone to try to feed her orally, that could have killed her right then and there. According to the report made to Governor Bush:
Evidence regarding the persistent vegetative state consisted of highly credible medical testimony and documentation reflecting both early and recently performed neurological examinations and a case history that included early swallowing studies conducted multiple times nearly ten years ago. ... independent sets of swallowing tests were performed early in Theresa’s medical treatment: 1991, 1992 and 1993. Each of these determined that Theresa was not able to swallow without risk of aspiration (and consequent infection).
And finally?
4. Judge Greer denied the Florida Department of Children and Families [“DCF”] request to intervene as guardian on behalf of Terri. DCF submitted several claims of abuse by Michael to Judge Greer. DCF argued that because Michael was the sole suspect of Terri’s abuse, he could no longer act as her legal guardian.
None of the accusations of abuse were ever proven or shown to be legitimate. All evidence pointed to was consistent with her bulimia and medical treatment subsequent to her collapse, and no one at the time made any claims of abuse; those claims came later, after the right-to-lifers entered the picture and started viciously attacking Michael Schiavo.

In short, the claim that Greer is an activist judge is based upon 1. his decision that Terri had orally declared that she would not want to be kept alive, which was within Florida law; 2. his decision to deny further medical tests, which was justified in that extensive tests had already been performed and a judgment on her condition was well-established; 3. his decision to not allow food and water introduced orally, because the evidence showed that this was impossible and in addition to failing, might actively cause immediate death or deterioration; and 4. that he did not allow a politically biased organization to take over as guardian, on the grounds that accusations of abuse by Terri's husband were completely unfounded.

Greer in fact followed the law to the best of his ability, and so, by definition, is not an activist judge. But don't tell that to a right-winger nowadays.

An interesting side note: the same right-wingers are livid that Democrats only approved 95% of the judges Bush put forth, and that they did not admit Texas judge Priscilla Owen, who is--you got it--an activist judge. But who called her an activist judge--probably some pansy liberal, right? Nope. Alberto Gonzales, Bush's own top stooge and now Attorney General, did so himself back in Texas a while back, saying she was guilty of "an unconscionable act of judicial activism" when she tried to impose burdens on minors for obtaining an abortion which were far in excess of what the law mandated.

So the wingnuts want to lynch a Florida judge who followed the letter of the law, and are pissed at Democrats for blocking the confirmation of a judge who is a proven activist. But then, I never claimed that the wingnuts weren't rabid hypocrites.

Posted by Luis at May 5, 2005 11:33 PM

The only problem with this (excellent) kind of analysis is that people don't give a damn. They want the quick-hit, punchy, looks-good-on-TV sound bite.

"These activist judges are destroying America!" is an excellent example of this.

What's remarkable to me is how otherwise-seemingly intelligent people can convince themselves of the correctness of the right-wing cause.

Never mind that the judiciary is packed with Republican appointees. Never mind that as a matter of law, the "pro-life" side was completely off-base and wrong. Never mind that the same people are normally blathering on and on about the importance of marriage and the husband-wife relationship being the heart of American society.

They just want to stick their heads in the sand and make-believe that something unfortunate, like Terri's death, is the fault of those damn liberals.


Seattle, WA

Posted by: Enumclaw at May 6, 2005 06:52 AM