Tuesday, March 29, 2005


There is no surer sign of intellectual bankruptcy (or senility) than the habit of comparing political opponents to Hitler. This type of metaphorical excess is par for the course on Air America and at MoveOn.Org. It is unusual for a Congressman.

Yet recently the very senior senator from West Virginia, Robert Byrd, compared a possible change in Senate filibuster rules for judicial appointees to the Enabling Act of 1933--the German law that concentrated absolute power in the hands of Adolf Hitler. Hitler, Byrd solemnly observed, always proceeded under "the cloak of legality." In this way the fiddling geriatric linked President Bush with the mustached Fuhrer and implied that any change in Senate rules (which Byrd himself modified as majority leader) would be tantamount to the suspension of representative government.

On the one hand we have complete concentration of authority in the hands of a dictator whose maniacal vision eventually led to a World War, at least forty million dead, and the near extermination of European Jewry. On the other we have a proposed revision of senatorial protocol. Hello, Bob! Is anyone home up there?

Let us be clear on the real issue that Byrd is addressing. Republican leaders, frustrated by unprecedented Democrat efforts to block votes on judicial nominees, now desire to revise the Senate’s rules in order to prevent filibusters on these appointees. We are not talking about changing the Constitution. We are not talking about subverting the right of Massachusetts residents to practice their unique brand of political masochism. We are talking about the "Rules of the Senate"-- which topic is covered by all of nine words in Article I, Section 5, of the Constitution: "Each house may determine the rules of its proceedings..." Had the Founding Fathers believed that democracy itself rested on this procedural point, they might have devoted at least a complete sentence to it.

What is a darn sight clearer than the superannuated senator’s hyperbolic historical analogy, is that the Founders of our country would be horrified by the way judges, in recent decades, have exchanged their limited interpretive function for the gratifying role of Philosopher-King. Thomas Jefferson in particular would be leading a new revolution to place the weight of self-government back in the hands of that branch closest to the people--the legislature.

With a finely modulated style that further miniaturizes the rantings of Senator Byrd, our third President observed: "The germ of dissolution of our federal government is in the constitution of the federal Judiciary...working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped."

Can anyone honestly doubt that Jefferson would conclude, in light of recent rulings on marriage, the pledge of allegiance, and capital punishment, that the judicial usurpation against which he warned is virtually complete? Would not Jefferson urge his countrymen to rise up and to reclaim sovereignty from these rapacious robed eminences? Would he not denounce these despots who delegate to the people the task of arranging deck-chairs on the ship of state while they sabotage the hull of self-government with that infinitely flexible and destructive tool: a "living Constitution"?

Were Byrd as insightful as he is loquacious and annoying, he would see that the true danger to republican government lies not in a revision of Senate cloture rules but in the continuing concentration of power in the hands of judicial elites. Indeed, the proposed change in Senate rules that Byrd portrays as Hitlerian is only a first, tentative step toward reigning in the power now capriciously wielded by Women and Men in Black. It is a step that Jefferson, if not Hitler, would heartily endorse.

Thursday, March 03, 2005


Imagine a boxing movie whose plot belatedly shows the need for animal experiments because its badly injured protagonist is denied a crucial drug derived only from this banned practice. Can you imagine flick gurus like Roger Ebert failing to mention the film’s political agenda? More to the point, would you assume that the sacred duty not to reveal climactic plot twists would prevent the sedentary Chicagoan from blasting the production for totally misrepresenting the facts? I doubt it.

Yet such is the case with Clint Eastwood’s poignant “Million Dollar Baby.” The professional obligation not to spoil the public’s viewing experience apparently trumps everything else, even blatant falsification, when it comes to discussing a typically Hollywood take on assisted suicide.

I say “typically Hollywood” because caricatures replace complex portraits whenever the switch is needed to promote a help-me-pull-the-plug political agenda. Thus, realistic relatives of the fallen fighter are scratched for a gaggle of trailer park hicks who’d tempt even healthy folks to pull the trigger--one direction or the other. Similarly, incompetent care, unlikely medical scenarios, and even an unsympathetic priest are trotted out to make clear to aficionados of “Cider House Rules” that a single grim option is available to Maggie's (Hilary Swank) doting manager.

The film’s most egregious manipulation puts Eastwood in the same class as that past master of mendacity, Oliver Stone. “Million Dollar Baby” would have us believe that a lucid quadriplegic totally dependent on a respirator cannot legally refuse medical treatment. This state of affairs is as palpably false as my fantasy that animal experimentation has been banned.
Diane Coleman, President of Not Dead Yet, should be aware of the law in such cases. After all, she suffers from a debilitating spinal disease and has been confined to a wheelchair since the age of eleven. At night she even uses a respirator. Coleman noted that, contrary to script, Swank’s character could have refused treatment at any time. After all, she was conscious, verbal, and clearly competent.

For those unwilling to believe the word of an advocate--or loath to think that a filmmaker would grossly mislead his audience--a glance at California law might help. Specifically, I direct skeptics to a 2001 ruling by the state Supreme Court (Conservatorship of Wendland) that reiterated (rather than established) the right of lucid patients to refuse heroic medical treatment.

Hard cases, it is said, make bad law. The reason for this adage is that laws are necessarily general--made to cover a variety of circumstances, not tailored to fit worst-case scenarios. The same could be said of “easy” cases--those in which factors that usually complicate things all point in the same direction. “Million Dollar Baby” not only goes out of its way to make things as easy as possible, it lies to do so.

It’s a shame that critics, reflecting the lawless ethos of the industry they cover, don’t see that telling the truth about matters of life and death is vastly more important than knee-jerk loyalty to a fraternal code of silence. I strongly suspect that these same critics would be eager to proclaim the truth--any time, any place--if the themes being misrepresented were ones to which they gave an enthusiastic thumbs up, politically.