July 2005

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Fenced Out of the Fourth of July

Filed under: Imported

By ELAINE CASSEL

On July 4, 2003, I took my customary bike trip into DC from my home in Virginia. Along the Potomac River, across the bridge, onto the "National Mall," as it is called. The strip of land that runs from the Lincoln Memorial to the Washington Monument. South of the mall is a beautiful area known as The Tidal Basin, a lake of water surrounded by walkways and cherry trees given to the American people by the Japanese government. Oh, and at one end of the Tidal Basin, the Jefferson Memorial and the smaller memorial to George Mason, father of the Bill of Rights.

July 4, 2002, the first since 9/11, the nation was on "orange alert." I knew security would be "tight," because the news was full of it. But I did not realize what that meant until I arrived at the mall only to be turned away. The mall was "closed" for a bomb search. Now, I don't know how they were searching for bombs or what kind of bombs, but I guess the cops were in the trees and in the tunnels. Who knows? I hear it opened hours later.

There was nothing for me to do then but reverse directions, come back over the 14th Street Bridge, and return to the relative calm of Alexandria, Virginia (that was before "terrorist" trials took over the town, and barricades erected here to keep God only who or what knows out). Before I crossed the bridge, I called my daughter. Her childhood was filled with July 4's on the mall-from the time she was a infant, up to the prior year when we all (grandkids, husband, friends) watched the fireworks from the federal courthouse where she was working at the time. Little did I know that that may be the last fireworks any of us saw on the mall.

I called her and told her how a chill had come over me. Helicopters and fighter jets were omnipresent. What a different 4th. So upset was I, that I paid no attention to what I was doing and ended up sprawled across the 14th St. Bridge with a broken arm. So much for July 4, 2002.

So, at 8 am on July 4, 2003, the nation no longer on "orange alert" and George Bush spending the day in Ohio raising money, I set out to see what was happening in DC.

Beginning at National Airport all the way to the bridges, double wooden fence had been erected between the George Washington Memorial Parkway and the river. People would have to enter through "checkpoints."

There were cops at the marina, cops at the airport. On the bike path itself, which runs between the Potomac River and the Parkway, there were cops on foot ("passing on the left," I yelled, for which I got a threatening look), cops on bikes. To my left, on the grass, cops on horses. To my right, in the river, cops in boats. On the riverbank, cops in tents, cops in trucks. Overhead, cops in helicopters.

To my surprise, Memorial Bridge, which lies at the foot of the Lincoln Memorial, was closed to cars. Bikes could get in. But not before passing through "security." As I stood deciding what to do, cops approached me. Step forward, ma'm, he said. I looked at him. Did you hear me? I heard you, I said. What's this all about? I don't answer questions, I just do my job. Step forward. By then, several cops, menacing looking, too, surrounded me. Not your typical nice park police. Get off the bike, one said, and I did. He unzipped the carrier, took out the wallet and cell phone, and told me to step aside and come through the metal detector. Then I got the "wand treatment." You can leave now.

I circled the entire mall and saw more cops than people. While there were no passenger cars, there were plenty of police cars and trucks. Truck with satellite dishes. Trucks with more fencing to fence out the people.

I made my way along the Tidal Basin to the Jefferson Memorial. Cars were trying to park and were being turned away, but not before they were searched. They would have to drive to other side of the US Capitol, or along Maine Avenue, park, and walk the dozens of blocks back to the Memorial if they wanted to visit it.

Oh, yes, you could visit the Memorial. A large tent staffed with dozens of cops, a walkway with a metal detector, a place to have your backpack searched-that's all that stood in your way. A large sign said, "Memorial open. Pass through security." I don't believe in an afterlife, but if there is one, I hope Jefferson is watching and shedding a tear.

I passed on the opportunity to commune with him. Not before thinking how life had changed forever in the nation's capital. Not because of 9/11, not because of Osama bin Laden, not because of Saddam Hussein. But because George Bush, the bully, the tyrant, the cowboy who highjacked the election, George Bush had hijacked the 4th of July.

Now, two years later, I still haven't been back to the Mall--not for the 4th, not for any reason. And I am not going today. The fences were in place more than a month ago, lining the George Washington Memorial Parkway. Security cameras are mounted on trees, stoplights, and rooftops. There weill be hundreds and hundreds of cops lining the streets, infiltrating the crowd. They will be looking for "terroroists," and they know one when they see one. So they tell us.

Tonight, after fireworks, people leaving the mall in their cars will be directed along "evacuation" routes--to test the city's emergency evacuation plan (I wonder where they are going to have the people run to? The suburbs? That will save them from a terrorist attack?).

Brave souls trying to get on the mall will pass through numerous security "checkpoints," with all bags and backpacks thoroughly searched. I don't know what it takes to get singled out for special "security measures," but I am betting it could be certain types of food or, heaven forbid, reading material to while away the waiting for the fireworks.

This July 4th I am biking, but not to the mall. I will bike to George Washington's home a few miles from mine, Mount Vernon. I will stand at the gates and wonder what George would make of the tyranny that another George has created not just in Washington, DC, but around the world.

July 4th now for me is a day of mourning, not celebration.

Posted by Elaine Cassel at July 4, 2005 5:54 AM

 

Jeb Bush, Still Playing Politics Over the Dead Body of Terri Schiavo

Filed under: Imported

On March 31, Teresa "Terri" Schiavo died. But the controversy over her case, it turns out, may live on - not only in the media, but perhaps in court, as well.

On June 15, Pinellas County Medical Examiner Jon Thogmartin released his long-awaited, thirty-nine-page autopsy report on Terri - a report that included extensive evidence from neuropathologists who had examined her brain and spinal cord.

The report's findings, in general, supported the position of Terri's husband, Michael - as opposed to that of her parents, who had suggested she had shown signs indicating significant brain activity in her last days. It is unsurprising, then, that within hours of the report's release, Terri's parents denounced it as inaccurate. (Florida Governor Jeb Bush, however, has not yet challenged the report, and may never do so.)

In particular, the report showed that, as over a decade of court wrangling had already proved, Terri had been in a persistent vegetative state (PVS). Indeed, the report also found that her brain had atrophied to half normal size, and that she was blind, the visual areas of her brain having been destroyed.

Nevertheless, the autopsy left an opening for politics to once again insert itself into the case - prompting Gov. Bush to instruct the state's Attorney General to investigate Michael Schiavo.

As I will explain, there is no good reason to investigate. Rather, this investigation is simply a continuation of the politics that have always surrounded the Schiavo case, as I argued in an earlier column for this site.

Nationwide, as much as 70 percent of the American people believe that Congress had no business stepping in the Schiavo case in the first place. And now, Americans' message is clear: Let's close the book on this tragic situation, and go on to address all the other pressing issues we must confront. But, apparently blinded by ambition, Gov. Bush is not listening.

A New Mystery: The Cause of Terri's 1990 Collapse

Although it resolved the debate on Terri's condition, the autopsy report, unintentionally perhaps, reopened the debate on the reasons for Terri's collapse on February 25, 1990. That incident stopped her heart and deprived her brain of oxygen for a period of time sufficient to leave her in a vegetative state.

It had been thought by many that Terri had had an eating disorder, bulimia, that had dangerously lowered her potassium levels. But Thogmartin found no evidence of bulimia - a disorder that can, for instance, leave traces on the esophagus. Moreover, like many investigators before him, Thogmartin did not find any evidence of any kind of trauma that could have caused Terri's collapse.

So why did Terri collapse - if not as a result of bulimia or trauma? It's not clear.

And, more to the point, why did her collapse transform her into a PVS patient? Possibly, that result may have been due to the treatment she received, or failed to receive, after her collapse.

It was on this theory that Gov. Bush called on Florida's attorney general to investigate Michael Schiavo, on the speculation that he might have delayed in calling for emergency assistance the day of her collapse.

It's true that Michael gave conflicting times, as much as 30 minutes apart, when asked when he called 911. But as he testified in prior court hearings, that's because he had to estimate. Understandably, he was not looking at his watch when his wife collapsed and he, presumably, frantically tried to get help for her.

Recall the last emergency situation you were in - can you remember exactly when it began, when it ended, or how long it lasted? Doubtless, you remember the sequence of events, but could you reconstruct a timeline? Time can seem to distort in an emergency - with events happening much more slowly than they actually occurred. A quick car accident can seem to take forever, for instance; time can seem to virtually stop.

The New Investigation of Michael Schiavo: An Abuse of Executive Power

Michael Schiavo not only has provided a credible explanation for the different times he gave for his 911 call; he has also been found, repeatedly, by judges, to be telling the truth about issues surrounding Terri's death.

Terri's parents had long accused Michael of causing Terri's initial collapse. Then, after the collapse, they have accused him of abusing and neglecting her in the years between her hospitalization and her death. These cruel charges are rebutted by the fact that Michael tried all kinds of therapy for Terri in the early years after her collapse, none of which helped her.

Florida authorities under the control of, and presumably sympathetic to, Gov. Bush, repeatedly investigated Michael, and found no evidence to support any allegations against him. Governor Bush must be well-acquainted with these prior investigations and their results, as he repeatedly called for them and repeatedly cited them as proof of his concern for Terri. Why, he even called for one more investigation in the last days of Terri's life!

Further, the reports and transcripts absolving Michael of any wrongdoing are repeatedly cited in the very autopsy report that the Governor says prompted him to call for yet another investigation.

Governor Bush Should Confine His Campaigning to the Editorial Pages

This call for a new investigation has nothing to do with the autopsy report. The real motive is ambition - Jeb Bush's political ambition.

But that is no reason to continue to ruin the life of a private citizen whom no court has ever found to have done anything wrong - and who has said, all along, that he only fought to honor his wife's wishes.

Ambition, though, is powerful - and Jeb Bush may aspire to the Presidency. Indeed, according to E. J. Dionne of the Washington Post, a source floated to Dionne the suggestion that Republicans are considering a John McCain-Jeb Bush ticket for the 2008 Presidential race. If so, that would set up a possible Jeb Bush run for the presidency - even one as early as 2012, if McCain, who'd then be in his mid-seventies, declined to run again.

Ambitious as he is, Gov. Bush ought to keep his campaigning based on the exploitation of the Schiavo tragedy out of the courts. He is free to use the media to continue to cater to his political base, as he has already done. For instance, last week when the New York Times ran an editorial commenting on the autopsy report and the politics that embroiled both Bush brothers in a family matter, Gov. Bush responded with a fiery letter in his own defense, in which he promised to continue to defend the "rights" of every "vulnerable" citizen.

Gov. Bush should rethink his call for yet one more investigation into Michael Schiavo. After over a decade of litigation, and both state and federal intervention, his efforts to make Terri's husband into a villain--and himself into a hero--have failed.

His outright stubbornness on this issue demonstrates his continuous catering to the extreme elements in the Republican Party. To win higher office - even to gain a spot on that hypothetical McCain ticket - he will have to please moderates as well, and do so by taking on issues that are appropriate for politicians to tackle.

End-of-life family issues are not among them. 

Posted by Elaine Cassel at July 3, 2005 10:55 PM

 

Why This Liberal Will Miss Justice Sandra Day O'Connor

Filed under: Imported

On Friday, July 1, I was preparing to debate issues related to Bush's judicial nominees with an employee of a well-known conservative "think tank."  The audience was a group of 400 high school students in Washington, DC for a week.

My opponent's think tank connection had a scoop—at 9 am his "office" had learned that Justice Sandra Day O'Connor would be submitting her resignation to the White House an hour later. I knew what my opening statement was going to be about. We each had an opening 4 minutes to talk about anything we wanted to. I told my opponent—let's call him Mr. Republican—that he could go first.

After announcing the O'Connor resignation, he waved the Constitution (note to Mr. Republican: You are no Harry Byrd!). and said how happy "we" were that O'Connor was leaving—by "we" it was unclear if he meant his think tank or all Bush supporters. He said it was time to put an end to the runaway judges who were acting contrary to the Constitution. O'Connor was the worst kind of activist, he said.

I was a little shocked that he attacked her so. So I jumped in and said why I, who disagreed often with O'Connor's decision, felt that the Court—and Americans—had lost an honorable public servant and a critical member of the Supreme Court.

O'Connor, I said, always considered how her decision would affect the people whose case was before her to be judged. That is why her opinions often appear straining at gnats to achieve some logic. Sometime, the logic was missing. But a sense of injustice and a desire to do justice generally shown through. In an abortion case dealing with parental notification, for instance, she worried about a girl having to approach an abusive father who might be even more abusing when he finds out his teenager daughter is pregnant. As for a young mother was arrested (yes, arrested, and taken into custody) for violating a seat belt law in  Texas, she expressed outrage. They arrested a mother, who had a car full of kids, and who was pregnant, and took her to jail, in the pouring rain? That can't be right, she argued. And her outrage carried the day. There are many such cases. Of course, there are many cases where she turned a blind eye to justice for the people, and ruled for big business. But no one showed quite the care she did when she did.

What I said to the young people on Friday was, maybe because of her temperament, her age, her upbringing, or her experiences—or all of the above—she never seemed to lose touch with everyday life. She worried about how her decisions would play out in the lives of people.

"That's just the problem," Mr. Republican Party-Line blurted out. Judges aren't supposed to care about people. They are only supposed to care about the law. That is why "we" are so glad that "she" is gone. Waving the Constitution again, he warned, that the Constitution required that O'Connor, and her fellow jurists, decide the law "as the framers meant it at the time" (ah, an Originalist, in the fold of Scalia, I thought), not what a judge thinks it ought to mean today. He went on to whine about how his public high school had students "bussed" in to create "diversity," and how he could not pray in school. And how he was going back to his home state and running for office, to make his country the way he—and Bush—want it to be.

I had little time to rebut this one, but I got in how the law was a social institution, created by people. How the Declaration of Independence, which we celebrate today, speaks of a government being of the people, by the people, and for the people. What is the law if not a tool of the people? A servant of the people? What kind of judge does not care for people?  There is an answer to that rhetorical question. Most of George Bush's judges don't get a damn about people. Except, perhaps rich people.

I think I won that round and 400 impressionable minds came away with a more honest view of O'Connor than they would have gotten if Mr. Bush mouthpiece had been left to his own devices.

What I did not have time to talk about was another reason why Justice O'Connor will be missed: She was a lady, in a time when there are few ladies in this world. She had a sense of decorum about the law, the Court, and her place in it. Unlike some of her colleagues on the bench, who have raised ad hominem attacks to an art form, she never denigrated fellow justices.

She was proud of her ability to listen to all sides of an argument before deciding --a novel  concept for a judge, and one not on Bush's list of qualifications. Indeed, listening to all sides is likely a disqualifier for a Bush nominee. She said she was always read to be "persuaded."  She did not call her fellow brethren/sister names if they did not agree with her.

She was a model of judicial temperament—firm, stern, but affording litigants a fair hearing and, according to accounts of her law clerk, fair and full deliberations.  She worked hard, long hours. She worked through breast cancer. She donned a wig and came to work, never missing a day of oral arguments, never missing out on an opinion. Like Chief Justice Rehnquist, she put those of us to whine about a cold to shame.

If you read the opinions of most of the judges on Bush's short list, you will find, I bet, lots of meanness, pettiness, doctrinaire ideologues, and lack of compassion. You will find plenty like Clarence Thomas who, in a case a few years back, said, in dissent, that a state prisoner could tie up a prisoner to a hitching post in the boiling hot sun and deny him water or shade. Yea, that kind of justice is what the Republicans want. They would have one of these in Janice Rogers Brown or Michael Luttig. Luttig is famous for saying that there are absolutely no limits on presidential power in the" war on terror." Janice Rogers Brown is so out there, so mean-spirited, that she could be the female Scalia. Sharp, stinging opinions often insult her opponents.

Maybe a Democrat justice would be the same today. Maybe the age of civility of temperament, and compassion for one's sister and brother is an old-fashioned virtue that can't be found in the 50psomethings Bush wants on the bench. Black, white, Hispanic, male, female—I bet there is not one on the list that gives a whit for people, or believes that justice should be tempered with mercy--and common sense.

Hardliners all, Bush's judicial nominees, many of whom are already on the appellate bench, will soon, through their opinions, usher in an age of conservative, hard-line judicial activism that will take away established rights, subordinate the interests of people to that of the government and business, and leave us longing for the Rehnquist court. (Not that the people haven't lost a lot of rounds in the past 25 years, but those losses will pale in comparison to what we can expect when Bush puts two, maybe three, hard right ideologues on the bench. How about instead of one Thomas and one Scalia, we get two of each?)


And longing, notably, for Sandra Day O'Connor. A plain-spoken woman who understood that her rulings affected real people with real problems. And that those people were who she was there to serve.She served us well—Republicans and Democrats, conservative and liberals. On one of the Sunday talk shows yesterday, some Republican assailed her for  trying to decide a case so as to insure social stability within the confines of stare decisis. We don't need to overturn, Roe v. Wade, she argued. We have been down that road before. It is the law of the land. What's wrong with that, asked the host? What's wrong with it, said the Republican, is that is not her job. Her job is to decide the constitutional issues in the wary the framers meant it, there is not right to privacy in the Constitution, blah blah blah, and Roe v. Wade must be overturned in order to bring the law back in line with the Constitution.

But the Republicans have disowned her, or at least distanced themselves from her, so wise Democrats are doing the right thing to urge that Bush nominate someone like Sandra Day O'Connor.  And when they say "like," they mean a pragmatic consensus-builder who was concerned about how her decisions would affect litigants and society.

Republicans, rest easy. Bush is not interested in putting someone on the bench who shares O'Connor's personal and judicial temperament. This is the age of the "nuclear" option, of "shock and awe," of "slash and burn."  The Bush administration believes it is its divine right to remove all sense of humanity from the courts of this land. Administration spokespersons say Bush owes it to his constituents to put the kind of person on the  high court he said he would—someone like Thomas and Scalia.

That's the last thing we need. But that is what we will get. And if Rehnquist resigns or dies in office. We will get another justice devoted to the Bush world view.  Anyone except a rich white man better start turning back the clocks now. Because you are going to have to turn them way back, and forget the past 50 years of Supreme Court decisions. Bit by bit, the rights and freedoms we hold dear will be chipped away by a gang of 9 that will be increasingly turning deaf ear to all but what Republicans hold dear—money and power. Power and money.

So, Hail to the Chief. And goodbye, Justice O'Connor. You were, as you hope to be remembered, a great role model for women (and men), mothers (and grandmothers), and all citizens. Your devotion to your work, your work ethic, your temperament is a relic of a better time. Most of all you were, as you said you want to be remembered, a good judge.

Posted by Elaine Cassel at July 3, 2005 10:46 PM

 

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