The Big Picture and the Closeup

There is a time for everything under heaven, and that includes a time to die. And sometimes those closest to the situation, the dying and their families, will not acknowledge it. It is perfectly appropriate to give the rest of us a say: those who will have to bear part of the cost through increased insurance premiums, through higher prices for medical services, through heightened scarcity of those services. And if Terri’s wishes, as found by the courts, were not to be the lodestar, then not only her family but the rest of us as well should have had a say in whether Terri’s body should continue to graze on the limited commons of available medical intervention.

Stockdale should know about holding the bag: the next year he would be shot down and spend seven and a half years as a North Vietnamese prisoner of war subject to routine torture. He would be kept in solitary confinement for four years. He would be held in leg irons for two years. He had to go through that and more because in the end McNamara’s men did not really care whether there had been any boats or not, and McNamara’s boss LBJ did not care about telling Congress what he was asking for.

In short, the power to give or withhold a declaration of war was generally viewed by the Founders as tantamount to the power to decide whether hostilities would take place, with the well-recognized exception of defense against direct attack. This placed the real war-making power in the hands of the Congress, not the President.

Standing by itself, the growing unavailability of summary judgment might tend to increase, not decrease, the number of trials, but it is coupled with another development that leads the other way, what I call “mediation hell.”

Peccant judges have that effect on us; unless we demand inhuman judicial perfection on the one hand or endorse total judicial anarchy on the other, they force us to think in uncomfortable shades of gray. They pose big headachey problems. Which I guess is why in general we want our judges to be squeaky clean. Not because this is an assurance of great judging, but because peccant judges raise such unsettling issues, and we have enough on our plate.

We who stand between the bar and the bench all know who they are: the abusive ones, the indecisive ones, the ones who come to the bench without having read the briefs, the ones who cut the day’s work short in honor of the cocktail hour or tee time, the ones who are so eager to be liked they waste everyone’s time with war stories in chambers, the ones who grow frightened or indignant when properly asked to make new law, the sexist dinosaurs, the inconsistent and mercurial ones, the moody ones, the ones who long ago gave up caring about justice and only take pride now in clearing their dockets, the ones who endlessly delay writing important opinions, the ones who hand so much of their jobs to their clerks there seems to be nothing left over

With good leadership, with Eisenhowers and Roosevelts, young men and women will predictably enlist in acceptable numbers. With bad leadership, the discipline of the enlistment market will act as a check. It would be both foolhardy and morally wrong to remove that check.

The Pope should not have allowed the Inquisition to silence Galileo in order to prevent the raising of questions about Ptolemaic cosmology, and scientists should not follow that regrettable papal example in order to silence those who claim there is evidence of a guiding force in the Universe.

The ongoing struggle — eternally imperfect and unfinished people contending with eternally imperfect and unfinished laws — isn’t pretty, orderly, predictable, or in keeping with any idealized civics-class visions. But it is the hand we’ve been dealt. We must make the most of it.

Laws lots of people support and lots of people disagree with. How you do or do not comply helps determine how legitimate these laws are.