Tribal Passions
We live in a world of immense specialization, which leaves us mostly reliant on others to navigate any area other than our own. A major aspect of our current political situation—maybe the major aspect—is that a lot of people are easily led astray. This is very easy to see on the right, but it is visible everywhere.
The most obvious way to avoid being misled, the one that we all wish were more widely practiced, is to rely on experts who are, well, reliable. No institution is perfect, but the mainstream news organizations are very good, and they are particularly good when it comes to basic facts (they are less reliable when it comes to sweeping concepts like the consequences of running a budget deficit or the merits of fighting a war).
So... what about Laurence Tribe?
Sigh. This came to my attention because Ken White responded:
Here's that link in case you can't click through from White's tweet. It is a decision written by Kavanaugh when he sat on the Circuit Court of Appeals for the District of Columbia. At issue is, to simplify somewhat, whether a state (or, in this case, the District of Columbia) can, without violating the Constitution, enact and enforce a law under which medical decisions can be made for mentally incompetent people without taking their wishes into account. Kavanaugh wrote that such a law passes constitutional muster.
Tribe's tweet is wrong in almost every respect. I don't want to get too bogged down in the merits of the opinion, but I'll note a few salient points. Most importantly, before any medical decision can be made by the District of Columbia, it must be determined by two physicians that the patient "lacks sufficient mental capacity to appreciate the nature and implications of a health-care decision, make a choice regarding the alternatives presented or communicate that choice in an unambiguous manner." The mere fact that someone has been determined to be intellectually disabled is not enough. Also, the state never has decision-making power where the patient has a relative or guardian to make the decision. (The exception is where the state has appointed a guardian for the patient, in which case that guardian can override the family's wishes. This happens sometimes when parents deny their children necessary medical procedures, for instance because of religious objections. That situation is not at issue in the legal case Kavanaugh considered, but I'll say that I think it is a good thing that the state can do this. Oh, another exception is that someone who was previously competent, but who has become incompetent, is entitled to have his/her wishes carried out even over the family's objections. That's not really the state making a medical decision, though, it's the state honoring a medical decision made by the patient at a previous time.)
The key point here is that the law only applies to the people described above—people who lack the capacity to make medical decisions for themselves or to communicate those decisions. By assumption, then, deferring to these people's wishes could be catastrophic. You can easily imagine a mentally incompetent person who is scared of needles and who therefore expresses a desire not to undergo a life-saving surgery. If a patient expresses a desire for a course of treatment, and gives good reasons for preferring that course of treatment, then by definition that patient is not in the category of people who are subject to the medical decisions of the state. (Of course people may be mistakenly put into that category, but again that was not at issue in the case before Kavanaugh.)
Moreover, DC regulations require that the patient be given an explanation of the contemplated medical procedure "at the level of [patient] comprehension." Although the law doesn't require the decision-maker to take the patient's expressed wishes into account, obviously the decision-maker is permitted to do so.
Of course Tribe added a little cherry on top, the specter of forced abortion. He could scarcely have picked a worse example—DC law forbids any involuntary abortion absent a court order.
This doesn't mean Kavanaugh's decision was necessarily correct. Maybe DC and the 50 states have all gone down a bad path by not letting people incapable of making medical decisions for themselves make medical decisions for themselves. Or to be less sarcastic, there genuinely may be some issue of jurisprudence here that Kavanaugh didn't sufficiently address. Although I find the decision compelling, you don't have to.
But Tribe's characterization of the decision is simply bonkers. And I kind of don't know what to say. I guess part of my point is that it's truly difficult to figure out who can be trusted in terms of understanding complicated issues. If you're just a random liberal on Twitter, do you believe the prominent Harvard law professor or the popular Los Angeles defense attorney? You can read the decision for yourself, of course, but that is time-consuming and difficult, particularly if you lack the context (or the confidence) to form your own opinion about a legal decision. (I guess, humorously enough, I'm suggesting that people who are incapable of understanding legal issues for themselves should not have legal determinations made for them by experts.)
Anyway it's depressing and terrible, all the more so because I don't think Kavanaugh should be approved and I think there are vastly more meritorious lines of attack. I guess I'll just conclude, fuck Tribe, thank God for Ken White, you should be skeptical, but not so skeptical that you don't trust the mainstream media, but skeptical enough that you don't trust legal experts from Harvard Law School. Sigh.
The most obvious way to avoid being misled, the one that we all wish were more widely practiced, is to rely on experts who are, well, reliable. No institution is perfect, but the mainstream news organizations are very good, and they are particularly good when it comes to basic facts (they are less reliable when it comes to sweeping concepts like the consequences of running a budget deficit or the merits of fighting a war).
So... what about Laurence Tribe?
In Doe Tarlow v. DC (6/12/07), Judge Kavanaugh wrote an opinion mocking claims by intellectually disabled women to at least be CONSULTED before being subjected to INVOLUNTARY SURGERY, including forced abortion. The Senate needs to press the nominee hard on that grotesque ruling.— Laurence Tribe (@tribelaw) September 12, 2018
Sigh. This came to my attention because Ken White responded:
And here’s the actual decision, which citizens are capable of reading to determine if these characterizations are fair or reasonable. https://t.co/tmF6w5UVSd— SupersedingHat (@Popehat) September 13, 2018
Here's that link in case you can't click through from White's tweet. It is a decision written by Kavanaugh when he sat on the Circuit Court of Appeals for the District of Columbia. At issue is, to simplify somewhat, whether a state (or, in this case, the District of Columbia) can, without violating the Constitution, enact and enforce a law under which medical decisions can be made for mentally incompetent people without taking their wishes into account. Kavanaugh wrote that such a law passes constitutional muster.
Tribe's tweet is wrong in almost every respect. I don't want to get too bogged down in the merits of the opinion, but I'll note a few salient points. Most importantly, before any medical decision can be made by the District of Columbia, it must be determined by two physicians that the patient "lacks sufficient mental capacity to appreciate the nature and implications of a health-care decision, make a choice regarding the alternatives presented or communicate that choice in an unambiguous manner." The mere fact that someone has been determined to be intellectually disabled is not enough. Also, the state never has decision-making power where the patient has a relative or guardian to make the decision. (The exception is where the state has appointed a guardian for the patient, in which case that guardian can override the family's wishes. This happens sometimes when parents deny their children necessary medical procedures, for instance because of religious objections. That situation is not at issue in the legal case Kavanaugh considered, but I'll say that I think it is a good thing that the state can do this. Oh, another exception is that someone who was previously competent, but who has become incompetent, is entitled to have his/her wishes carried out even over the family's objections. That's not really the state making a medical decision, though, it's the state honoring a medical decision made by the patient at a previous time.)
The key point here is that the law only applies to the people described above—people who lack the capacity to make medical decisions for themselves or to communicate those decisions. By assumption, then, deferring to these people's wishes could be catastrophic. You can easily imagine a mentally incompetent person who is scared of needles and who therefore expresses a desire not to undergo a life-saving surgery. If a patient expresses a desire for a course of treatment, and gives good reasons for preferring that course of treatment, then by definition that patient is not in the category of people who are subject to the medical decisions of the state. (Of course people may be mistakenly put into that category, but again that was not at issue in the case before Kavanaugh.)
Moreover, DC regulations require that the patient be given an explanation of the contemplated medical procedure "at the level of [patient] comprehension." Although the law doesn't require the decision-maker to take the patient's expressed wishes into account, obviously the decision-maker is permitted to do so.
Of course Tribe added a little cherry on top, the specter of forced abortion. He could scarcely have picked a worse example—DC law forbids any involuntary abortion absent a court order.
This doesn't mean Kavanaugh's decision was necessarily correct. Maybe DC and the 50 states have all gone down a bad path by not letting people incapable of making medical decisions for themselves make medical decisions for themselves. Or to be less sarcastic, there genuinely may be some issue of jurisprudence here that Kavanaugh didn't sufficiently address. Although I find the decision compelling, you don't have to.
But Tribe's characterization of the decision is simply bonkers. And I kind of don't know what to say. I guess part of my point is that it's truly difficult to figure out who can be trusted in terms of understanding complicated issues. If you're just a random liberal on Twitter, do you believe the prominent Harvard law professor or the popular Los Angeles defense attorney? You can read the decision for yourself, of course, but that is time-consuming and difficult, particularly if you lack the context (or the confidence) to form your own opinion about a legal decision. (I guess, humorously enough, I'm suggesting that people who are incapable of understanding legal issues for themselves should not have legal determinations made for them by experts.)
Anyway it's depressing and terrible, all the more so because I don't think Kavanaugh should be approved and I think there are vastly more meritorious lines of attack. I guess I'll just conclude, fuck Tribe, thank God for Ken White, you should be skeptical, but not so skeptical that you don't trust the mainstream media, but skeptical enough that you don't trust legal experts from Harvard Law School. Sigh.
posted by James | 12:33 PM
1 Comments:
Laurence Tribe jumped the shark years ago. More like Laurence Tripe!
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