Yonatan Zunger’s Blog

In the Padilla case, Judge J. Michael Luttig of the 4th circuit court of appeals blasted the administration’s handling of the case and rejected their move to do a jurisdictional shuffle to keep this case from ever reaching the Supreme Court.

For those of you who haven’t been following: Padilla was arrested on a charge of a “dirty bomb” plot about 3.5 years ago and was held incommunicado in a military prison until heavy outside pressure forced them to allow him counsel (about a year and a half later). The case now pending before the court is whether the administration has the right to hold a US citizen as an enemy combatant outside of the legal system. The case is approaching the Supreme Court, so a few weeks ago the government tried a jurisdiction move: they formally charged Padilla with some unrelated matters and ordered him moved to a civilian prison, in an attempt to moot the issue, and asked the court of appeals to withdraw an earlier decision it made in their favor so that the Supreme Court wouldn’t have a chance to review it. Luttig is a very prominent (and very conservative) jurist, so the forcefulness of his statement today is a big deal.

President Bush has nominated White House Counsel Harriet Miers to succeed Sandra Day O’Connor on the Supreme Court. She has no prior judicial experience; her background is as an attorney, including as the President’s personal attorney, chairwoman of the Texas Lottery Commission, staff secretary to the President, and deputy chief of staff.

Unlike the nomination of John Roberts, this one smells extremely bad to me. I’d be willing to lay at least 2:1 odds that she has a strong ideological bent, simply based on her background; but more to the point, is it really proper to be making an obvious patronage appointment to the Supreme Court, especially after the rollicking success of his last famous one?

In an op-ed piece in the New York Times, Kathleen Sullivan suggests some questions to ask Judge Roberts at his confirmation hearing. These seem like very good questions; I would be especially interested to hear his answers to the third. (Four other people also contributed questions, but those seem substantially less relevant to me)

One question about which I would love to see Judge Roberts’ reasoning would be, To what extent do individuals have the right to make their own medical decisions, and why? Unfortunately this would be an inappropriate confirmation question; any of the germane subquestions would be far too likely to have direct bearing on cases that could come before the court in the future. But his thinking on this matter would be (IMHO) very illuminating: this is closely associated with the question of the rights of individuals when they do not have any obvious conflict with the rights of other individuals or the duties of the state, and therefore of his broader approach to questions such as privacy. Sullivan’s third question broaches this indirectly, though, so it may answer the matter well enough.

A lot of people have been avoiding discussing the Schiavo case for various reasons, but I think there’s something important enough here that it’s worth putting on the table. Today we’ve seen what one faction of the Republican party wants our country to be like, and there’s something in it that doesn’t sit right with me.

I’m certain that most of the people reading this have at least some conflicting emotions about this case. Chances are, either you, or a family member, or someone you know has had to make an important medical decision for someone. And especially when these decisions amount to life or death, they are agonizing.

President Bush said that when in doubt, we should err on the side of life. I disagree. I think that when in doubt, we should err on the side of personal responsibility. The government has many roles in health care, and sitting over the bedside making the decisions isn’t one of them. These decisions are, have been, and should be, the province of the people affected, of their families, and their physicians.

“But wait,” you may say, “it’s well and good to let things be a matter of personal responsibility when it comes to bank accounts. But here a life is at stake.”

…And this is the moment that personal responsibility counts for more, not less. We sometimes forget how often we entrust people with an enormous responsibility; consider who we let drive a car. (And remember that a car is three quarters of a ton of steel and fiberglass, moving at sixty miles an hour within a few feet of unprotected people. No factory would ever allow something like that.) We can’t just say that because it’s inside a doctor’s office, people are any less responsible for each others’ lives, especially for their loved ones.

The implication in the Legislature’s intervention in this case is that the government has the right, whenever it feels that you aren’t making the decision it wants you to make, to step in and make intimate decisions for you and your family. When the Liberals were talking about the risks of government policy on abortion or gay marriage, this was the real issue on the table; same when the Conservatives were talking about the risks of central government health care. It’s the risk that, once the government decides it has the right to intervene in your most intimate decisions, you’re going to end up with Congress voting on what sort of treatment you should have when you’re in the hospital.

(That last sentence would sound like a ridiculous exaggeration if it hadn’t happened just a few days ago)

Now, most of you probably have a gut feeling, one way or the other, about what should be done in the Schiavo case. But – unless you’re part of her immediate family, or you’re her attending physician and are working in consultation with them – it’s not your decision to make, any more than it would be their decision if you were the one in the bed.

It may be hard to put a life-or-death decision in the hands of someone else, especially when you strongly disagree with what they’re doing, but it’s sometimes necessary. The world can’t be run by an army of nannies, all looking over our shoulders; at some point, we have to trust that the people around us are responsible, have thought the moral issues through, and know the details of their own situation and can make their decision better than anyone else.

This is what I see as the heart of the Progressive philosophy – personal responsibility for yourself and your community. Society, family, and experience raised us to become people who can make these difficult decisions, because if we don’t make these decisions, there’s no-one else who can make them for us. Government is neither your mommy nor your daddy; it’s just us, and an agreement we made to work together on some issues. It can’t be an oracle of perfect justice, and it shouldn’t be an excuse for politicians to walk into the operating room.

It’s funny to see the Republican leadership, and a bunch of Democrats desperate to prove their right-wing credentials, stepping out to advocate the most extensive version of the Nanny State I’ve ever heard mentioned. I won’t go into Tom DeLay’s description of this as a political “windfall;” I think his ethics investigations speak clearly enough about the content of his character. But honest Conservatives who should know better are standing out there with him, getting ready to meddle in the lives of an innocent family because they’re hoping for some political benefit. Forgetting their core principles is not a way to get it – any more than it is for the Democrats who are out there with them. This matter is not the Federal government’s business, and we shouldn’t set a precedent any other way.

The House dropped provisions from the Intelligence bill restricting torture at the urging of the White House. These provisions had passed the Senate on a 96-2 vote, but apparently Condi Rice (who represented the White House in this matter) opposed it on the grounds that it “provides legal protections to foreign prisoners to which they are not now entitled under applicable law and policy.”

A new Dept of Justice memo is backing off authorization for torture.

Well, that’s nice.

A mixed bag of information about some provisions of the new intelligence bill. On the good side, it requires the TSA to establish a process for getting people off the no-fly lists, and directs them to start installing various devices like explosive residue detectors and evaluate blast-resistant cargo containers. Still no requirement on depressurizing suitcases before loading, which is a pity. On the not so good side, it has the TSA keeping logs of everyone who flies anywhere. (Good data mining, but I repeat a previous estimate: We will need internal passports to travel within four years if this goes on) On the somewhat incomprehensible side, the bill bans butane lighters in carry-on luggage.

(Yes, you could make those explode, I suppose. It would take a good deal of work, and it would be hard to rupture a hull that way. Would they also like to ban pens? I’m pretty sure I could kill someone with mine – it’s sturdy enough to penetrate to various vitals. Maybe we should only be allowed crayons.)

Our beloved Attorney General, may his name and memory be forgotten, just resigned; he won’t serve a second term. No word yet on his future plans or his successor (a matter which concerns me deeply – Gonzalez, the current White House counsel and architect of various plans to thwart the Constitution, has been described as a likely candidate, and the others likely to be even worse) but I certainly won’t be sad to see him vanish.

Alas, a bit longer until he formally leaves office, so I can’t legally state what I think of him quite yet. But I’m thinking it.

An interesting news story some of you may have seen: The DHS is enforcing trademarks, on the theory that part of their job is “protecting the integrity of the economy and our nation’s financial systems.”

Has anyone noticed that this “department” has taken on itself the authority to enforce more or less anything they want to, and subject to only nebulous and unspecified restriction?

MSNBC is reporting that Tom Ridge wants to suspend the election in November if a terror attack occurs near that time.
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