I had promised myself that I wouldn't comment on the lurid circus that has occupied the first slot in the news of whatever medium for the past week, although it does illustrate some points a propos of the general theme toward which my infrequent posts have tended. But then Voracious Reader joined the clamour and, as it were, invited my response. In failing to check myself, I admit I fall prey to that base, nearly universal impulse to prove one of my father's favorite maxims, namely, that opinions are like a---holes: everybody's got one.

As a preliminary matter, I should like the score to reflect another victory for my notion that the judiciary remains a largely non-political organ against the efforts of laymen and news media to reduce it to a product of judges' personal whims and politics. If you'll recall, as soon as the Congress passed the act giving jurisdiction to the Western District of Florida, the networks and papers al began to speculate intensely about how "conservative" or "liberal" judges on that district were, as though that issue would somehow be determinative of whether the parents would get their TRO. As it happened, the media's speculation seemed to be borne out in the district court, since the case was assigned to a Clinton appointee who denied the petitions. Encouraged by this succes, Fox News, if memory serves, began to speculate about the ideological composition of the 11th Circuit, noting that they were largely Republican appointees, and quoting some professor from Western South Central Florida Snobby-Eater College of Law and Brake Tuning, or some such, who driveled "if you get two Republicans on the panel, this gets overturned in a heartbeat." As it tuned out, the literal truth of his statement was never put to the test, since the panel comprised two Democrats and a Republican; but the Republican joined the majority that upheld the denial, and it was a Democrat who dissented. Moreover, on the motion for rehearing en banc, only two of the dozen judges voted to grant, meaning that at most one Republican on the entire court disagreed particularly strongly with the district court's ruling.

To top it all off, not one of the justices on the Supreme Court even wrote to disagree with the refusal to award emergency relief--not even Justice Scalia, whom the ignorant commonly regard as a tool of Papists and religious conservatives. Indeed, I think Scalia would be the first to recognize what everyone with a decent grasp of federal jurisprudence, regardless of their stake in the result, realized the minute they read the Congress's emergency legislation: there isn't even the shadow of a substantive claim under federal law. Nor, in any circumstance other than this one, would any sensible conservative want there to be. For example, Andrew McCarthy groans on about how the Constitution requires proof beyond a reasonable doubt in "death cases." I expect he would, however, be on of the first to come forward in defense of the ability (established in Kansas v. Hendricks) of authorities to prove by clear and convincing evidence the psychological propensity of someone to commit sex crimes and lock him up indefinitely under a civil commitment statute, though the right to liberty is protected by the Constitution in the same breath with the right to life. "How," you say, "can one compare the rights of a sex offender with those of an innocent?" But the law is blind to such distinctions, as it should be. The only recourse would be to alter the standard of proof somewhere in substantive law (although I've never heard of ratcheting it up in a civil case to proof beyond a reasonable doubt). And such an alteration would probably not even be supported by the people, since I doubt many people relish ex ante the thought of being preserved in a ghoulish state of half-death.

I'm not quite sure why it is that I seem to agree with nearly everything William F. Buckley says--even when I would expect him to disagree with me. In particular, I agree with his point that it is analytically unsound to equate affirmative refusal to preserve life with killing. Such a notion, with its sweeping implications for the moral necessity of a welfare state, is more commonly held by the most pinko socialist than the libertarian or institutional conservative. And yet it is precisely what all the rhetoric from the "right to life" culture postulates. This controversy has illustrated a point that went unnoticed in the past several years of Republican ascendancy, namely, that there is little or no inherent ideological union between limited-government conservatism and Christian social conservatism--it is largely a marriage of convenience. The most irksome thing to me about his whole affair is the toll that it may take on the integrity of Republican politics as the party struggles to keep fundamentalists in the fold. Whether we like it or not, Bill Rhenquist is going to be retiring this year, and it's going to be a long row to hoe getting someone to replace him to the right of David Souter unless Democratic obstructionism is overcome. This debacle could provide the perfect sort of ammunition for Democrats to lob, saying that all the Republicans' talk of "judicial activism" is merely a euphemism for judges who come to substantive conclusions that the religious right doesn't like. I also shudder to think that their loss in this case will ignite religious conservatives to try harder to appoint people for their moral rather than legal views; my blood curdles at the thought of a judge who would have granted a stay in this case because he thought it is what Jesus would have done. On the other hand, for the moment, I cannot fault, for example, W's willingness to sign the bill and utter a few platitudes. As a reassurance that our president is in his heart of hearts a true conservative, I was actually pleased to hear that Bush had been sensible enough to sign that law in Texas. It's dreadful to think of people being vegetables on the public nickel. But though I, as an irreligious structural conservative, might prefer if the Republican party were in a position to discard the useful idiots of the religious right like yesterday's linen, we cannot afford the luxury right now, with socialism attracting hordes of its own fanatics. Nevertheless we must remember that, when push comes to shove, there is nothing special impelling religious fundamentalists to prefer the rule of law and limited government if it conflicts with their religious notions.

So, then, in conclusion I would cordially disagree with Voracious Reader when she says that concerns of federalism should be subordinated to those of "life and death." Our system of government has been a bulwark to liberty against political storms and the tyrrany of men for hundreds of years; millions of people far better than the thing that lies expiring in a hospice in Pinellas County have died to build and preserve it. The rule of law is not better than the rule of man because it always produces results that we like: it is better because it is the law, impartial and unyielding. I, for one, will raise a glass when the political fuss dies down, and what was once Theresa Marie Schindler Schiavo is finally allowed to finish the death it began fifteen years ago.