Ist Das Nicht Ein Schindler Banc? Nein, Das Ist Ein Schiavo Banc!

Just finished reading the concurring and dissenting opinions in the 11th Circuit's decision in the Schiavo matter to deny the Schindlers a rehearing en banc. Perhaps it's because I'm an English major, but I can't help reading into the exchanges between Judges Carnes and Hull, concurring, and Judges Tjoflat and Wilson, dissenting, a little subtext.

I get the funny feeling that the dissenters bent over backwards to make sense of the Schindlers' eighth claim, based on substantive due process--while admitting, frankly, that the Schindlers had a heavy burden of proof. Judges Carnes and Hull, on the other hand, seemed to deprecate this judicial attempt (if it was an attempt) to make the Schindlers' case for them.

Doubtless, Judges Tjoflat and Wilson pointed out the only ray of hope for the Schindlers: the possibility of re-opening and re-trying the central issue of fact in the case; namely, what did Terri Schiavo really want? To this extent, the dissenting opinion makes a useful historical record: yes, indeed, the judges were listening. As Judges Carnes and Hull responded, though, this hope was a forlorn one. The Florida courts, they pointed out, had examined a large body of evidence with great care and applied the correct standard to it. There was no chance that the federal courts were going to second-guess them.

(Oddly enough, in all the reporting on the Schiavo case, I've yet to come across any reference to the Schindlers' rebuttal of Michael Schiavo's "clear and convincing" evidence of Terri's wishes, except an argument that runs something like this: (a) Terri was a "devout" Catholic; (b) devout Catholics don't refuse medical treatment, as long as there's still hope for recovery; therefore, (c) Terri would have wanted to continue treatment. If that was all they had to go on, Michael all but won by default.)

It was amusing to see the take of Judges Tjoflat and Wilson on Pub. L. 109-3, too; so different from that of Judge Birch. Neither opinion points up the Alice in Wonderland-like (sentence first; verdict second!) aspects of Section 3 of the Act, which provided:

After a determination of the merits of a suit brought under this Act, the District Court shall [No matter what the outcome, shall!] issue such declaratory and injunctive relief as may be necessary to protect the rights of Theresa Maria Schiavo under the Constitution and laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.

So Judges Tjoflat and Wilson are being a wee bit disingenuous, when, in response to Judge Birch, they point out that Congress frequently (say) sets the standard of review in its statutes; if ever a statute required a court to reach one and only one result, this is it.

"If It Does Not Stir, You Must Inter"

The New York Times reports that Johnnie Cochran is preparing for his last trial. I haven't trotted out my take on his most notorious case, the O.J. Simpson murder trial, for nigh onto ten years, so here it is:

The People of the State of California, in the person of D.A. Gil Garcetti, sank their case on the day they announced the decision not to seek the death penalty. That decision was susceptible of any one of three adverse interpretations: (1) the People were unsure that O.J. did it, and didn't want to do anything irreversible, like fry the guy; or (2) the People cynically sought conviction at any price, and believed they'd never get it, if death were at stake; or (3) the People didn't believe in enforcing the laws of California, which prescribed the death penalty for cases of this sort. Whichever was the truth, the illogic of the People's position was obvious.

Drawing a ringmaster like Hon. Lance Ito to preside over a circus, failing to object to venue in a hostile community, and all the other errors committed along the way may have been nails in the coffin, but that primary strategic decision is what put the corpse in the coffin in the first place.

And now, an oldie but goodie, to the tune of Mister Sandman:

Mister Simpson!
Give it a rest;
We wouldn't buy it,
Unless you confessed.
That explanation
For blood in the Bronco—
You couldn't sell it if you worked for Ronco!
Mister Simpson!
Give us a break;
How much baloney
D'you think we can take?
So please turn off your flack machine—
Mister Simpson, why not come clean?

Mister Simpson!
Give it a rest;
You've told your story,
But we're unimpressed.
That talk of chip shots
Was simply malarkey;
By rights, you should have had to date Old Sparky!
Mister Simpson!
Cut out the jive;
If you'd been elsewhere,
They'd still be alive.
So please turn off that damned machine—
Mister Simpson, don't be obscene!

Mister Simpson!
Bully for you!
You fooled a jury
With rannygazoo.
You put those gloves on
And brought home the bacon;
The Fifth Amendment—and the Truth—got taken!
Mister Simpson!
Here is a flash:
The civil action
Will settle your hash.
So find yourself a cash machine—
Mister Simpson, cough up the green!

New Patron Saint for Lawyers?

Forget St. Thomas More and St. Ivo of Kermartin; the Church ought to canonize Martin of Karlovy Vary (in the Czech Republic) as the new patron saint of lawyers.

Now, I grant you, St. Ivo's aliases (he also goes by Erwan and Ives and Yves) are certainly an apt metaphor for the shiftiness of the Bar, and Tom More's stubborn refusal to see reason an apt one for its litigiousness. But Martin? According to MSNBC, Martin has 'em both beat: he perished when he was accidentally buried by an enormous pile of manure.

I rest my case.

Easy Cases

I've just finished reading Judge Whittemore's and the 11th Circuit's second opinions in the Terri Schiavo case. Some random thoughts:

The Schindlers, inspired, perhaps, by Andrew C. McCarthy, tried to turn the Supreme Court's holding in Cruzan v. Missouri on its head, but to no avail. The 11th Circuit saw through it, as any first-year law student would have done. I'm surprised, though, at Mr. McCarthy's misconstruction of Cruzan: his analysis of the case is that of a fool, or a knave, or a person so emotionally caught up in the Schiavo affair, that his judgment has been impaired.

Cruzan is not the only thing that has been turned on its head in this matter, though: so have the words liberal and conservative. When I was boy, a conservative was (so went the party line chez nous) one who believed that the Constitution meant what it said; believed in individual liberty and responsibility; and disapproved of governmental intrusion, particularly federal intrusion, into matters that were not its concern. A conservative believed that things were fine and needed no fixing, or that the fix was worse than the problem. A liberal was one who believed the opposite. In the last week, the so-called conservatives in Congress and the White House have chucked the Constitution, dashed the rights of the individual, intruded like gangbusters, and turned a private tragedy into a great big mess. In acting, they betrayed a complete ignorance of how the judicial system works, although many of them, I understand, practice law on the side.

What's worse, these conservatives don't seem to know the first rule of nature: everything dies. Our ability to sustain life, of a sort, for long periods in spite of the first rule of nature is a new--liberal, if you will--development that is contrary to what our ancestors would have called "the natural order of things." A person's wish to forego such treatment stems from what, at bottom, is a conservative impulse to die as men have always died. Anyone calling himself a conservative should consider such an impulse to be "natural," and should therefore believe a priori in the probability that Mrs. Schiavo indeed wished to forego treatment.

So the Schindlers' tenth claim--that Terri Schiavo was being deprived of "life"--is as liberal as it is absurd. As if the Constitution guarantees us all "life"! (I had thought that only Jesus Christ guaranteed it.) Well, if this is what the Constitution now says, then somebody had better bring a claim to resurrect the Founding Fathers, for their constitutional right not to die has been most shockingly abridged.

Where the Schindlers' strategy errs most grievously is in not seeking to vacate the finding of fact that Terri Schiavo wishes to forego treatment. As long as this fact is the fact of the case--and only God knows whether it is the truth in His eyes; but for purposes of this litigation, it is the only fact that matters--all their legal arguments are idle. Perhaps, once in the distant past, they pursued the better strategy and were stymied. If so, their case was at that moment lost for good, and all their subsequent efforts have been in vain.

The Schindlers, truly pitiable in their refusal to accept what cannot be helped, grasp at straws when they argue that the Eighth Amendment applies to their daughter's case. But they have succeeded in one respect: by focusing so much attention on this case, they have cowed the courts into silence on the subject of monetary sanctions for frivolous conduct. Any other private party who had asserted such positions would have been mulcted good and plenty by now.

Hard Cases

As the Terri Schiavo case reaches its climax, there arrives on my doorstep the latest issue of Smithsonian, containing an article about the enduring controversy over the Scopes trial. And it occurred to me that history is a bit like plate tectonics: when a principle and a fact rub against each other until the pressure becomes unbearable, all hell breaks loose.

There's no doubt that Mr. Scopes was a criminal. There's just as little doubt that evolution is a stone-cold fact. Yet today, no one remembers the former; we only remember the latter.

The States that would become the Confederacy stood for a noble cause: states' rights. But the cause was asserted in defense of an institution so distasteful, that no one remembers the cause anymore; we remember only the slavery.

So it is with Terri Schiavo: it has been proved in a court of law, with due process and by clear and convincing evidence, that Mrs. Schiavo's wish is to forego medical treatment. But the Congress, the President and the Schindler family and their supporters ignore this fact--for a legal fact it is; res judicata, and collateral estoppel, and the law of the case and the rest of those ancient and honorable rules designed to protect us all--and think only of the visceral issue of life and death.

I don't know what to make of all this. But I'll bet you any amount of money that, in days to come, the Terri Schiavo case will be remembered for one thing, but not for the other. And whatever it's remembered for, people like me will be as annoyed as hell that everyone's forgotten the other.

Now, I must go explain to my daughter why the Alien and Sedition Acts are not as bad as they're painted.

Sub-Par Parody

Well, I'm not sure it was worth the wait. Here's a Bobby Short panegyric set to the tune of Davis and Akst's Baby Face, but I confess that I didn't give my whole mind to it:

Bobby Short
Is more congenial than Voldemort
And more amusing than a day in court
Talking tort;

His one
Live
Piano's
More fun
Than five
Sopranos.

Where's the sport
Who could be qualified to hold the Carlyle fort,
Till we ascend the stars
To hit the Bar of Bars
And once again hear Bobby Short?

Lyric © 2005 Nathaniel DesH. Petrikov

Short Shrift

The Carlyle's own Bobby Short has reached his final cadence. I see no point in putting in a link here; it must be all over the Web by now, and anyone who can't find a site reporting on it either has no idea how to google or just doesn't give a damn.

And anyone who doesn't give a damn has no business reading this blog, for Mr. Short was crucial in the development of my musical taste. He didn't form it--that was done long before I'd ever heard of the guy--but his albums of Cole Porter and Noel Coward songs, like that crucial last stage in a Saturn rocket, sent me into that Popular Standard orbit whence there is no re-entry, but to the grave. I found the albums just as I was first being introduced to the sheet music, and the combination of the two was explosive.

In the little world in which I grew up, comic songs were a barren archipelago in an ocean of self-conscious, earnest, pretentious, subintellectual rock-and/or-roll. There were Tom Lehrer, Allan Sherman, and Stan Freberg, of course; but the idea that any humorist since W.S. Gilbert had ever broken into mainstream popular song never occurred to me. So Porter and Coward impressed me as profoundly as the Americas must have done the sailors of the Age of Exploration.

I saw from the first that Mr. Short understood the wit in every word they wrote. It was at about this time that the perfectly dreadful At Long Last Love, starring Cybill Shepherd, Burt Reynolds and others was making a splash on the screen, and the contrast between Mr. Short's understanding of Porter's stuff and the movie's cretinous cluelessness was one of my early lessons in artistic discrimination.

I feel a parody in honor of the man coming on. Stay tuned.

Political and Culinary Faux Pas

I was returning from the City this evening, when I spied a woman on the train wearing a button with the strange device, "Out Troops Now!" I puzzled over this for some time. Was homosexuality in the armed forces still such a burning issue among the numerous folk who go about wearing buttons on their lapels and bumper stickers on their bums? And then I realized that the designer of the button had been rather lax in his design, and that the thought he'd meant to convey was, "Troops Out Now!" As in Iraq. "Oh," I told my immortal soul.

My commute today was productive, for it brought closure to a parody that had been nagging me for days. It all started with the London Times crossword puzzle a few days ago; one clue read:

Healthy congratulations (4, 3, 3)

The answer (not to keep you in suspense) was good for you. I'd never noticed that the phrase was ambiguous. A little more thought, and I saw that it was almost tri-guous, as in "If you know what's good for you." So I turned to a song that has always annoyed the living daylights out of me, Fred Ahlert's and Roy Turk's Mean to Me (of which there's a somewhat countrified midi here; it only fools around with the official melody a wee bit), since Mean to Me hinges on the two meanings of that phrase. The release, though, was giving me fits until this afternoon, when the ol' mass transit train worked its customary magic:

Well, good for you!
You're eating what's good for you;
Glue, sawdust and wood for you--
Commonly known as "muesli."
Eat it all up!

Shredded steel
Might offer more mouth-appeal;
Gosh, what a dis-gusting meal
(Using the "M" word loosely).

When Nature calls us
To swallow this Dreck,
Then peristalsis
Becomes a big pain in the neck.
Heck!

How can you
Sit calmly and eat that goo?
You wouldn't, if you but knew
What was good for you.

Lyric © 2005 Nathaniel DesH. Petrikov

As for the doubtful rhymes, muesli/loosely and calls us/peristalsis, they're no worse than Turk's mean to me/seems to me, home/phone-alone and coldly/scold me. So sue me.

My lyrics are often criticized for being too high-falutin'. A just criticism from wise men of vast experience in show biz. But to dumb down my vocabulary would violate my Art. There's a deep and intractable anger in my soul that ours is a world in which there is peristalsis, and there is popular song, but there is no popular song about peristalsis. I hear you say, "But you can't put the word 'peristalsis' in a pop song lyric!"

The hell I can't!!

On the Juiciness of Roasting Chickens

Frank Rich draws attention to an act of moral courage in the wake of September 11 that's new to me. At a Friars' Roast of Hugh Hefner on September 29, 2001, Gilbert Gottfried had the grit to crack wise about the World Trade Center disaster.

My estimation of Mr. Gottfried as a humorist has risen by several notches. The joke he made--a funny one, to me--doesn't exactly place him in a league with "Martyrs of Humor," like Arthur Sullivan (who managed to be funny despite misfortunes like kidney disease and financial ruin), Charles Lamb and Gracie Fields, but it's admirable nonetheless. As Stan Freberg once said, "Extremism in the pursuit of comedy is no vice."

On a not entirely unrelated subject, much hysteria has been generated over Ward Churchill's On the Justice of Roosting Chickens. It might be amusing to learn how many contributors to the hysteria have actually read what Mr. Churchill wrote. The widely disseminated claim that he referred to the victims of the World Trade Center as "Nazis" suggests that very, very few of them have done so.

Something Entirely New: Meta-Parody!

Yesterevening, my daughter and I journeyed to Boonton, New Jersey, to see a production of The Music Man directed and choreographed by a friend. A good time was had by both, and on the way home, the following lyric occurred to me, but I could think of nothing to do with it:

Seventy-Six Trombones needs a parody.
I haven't a goddam clue what to write.

That's it. There ain't no more.

My daughter and I decided that no American town name is more annoying to pronounce than "Boonton." The City Fathers really ought to do something about changing it.

Old Jokes Are Best

That's an article of faith with me. So, it seems, is "Write what you don't know."

It's no secret among my nearest and dearest that I'm allergic to cable television. Never subscribed to it, and probably never will. The notion of paying good money to watch cheesy commercials every ten minutes rubs me the wrong way, and, besides, I have a dim memory of a promise made to the general public some thirty years ago that television one paid for would be commercial-free. I'm therefore just about as au courant when it comes to the medium as I am in matters of sports and rock-and/or-roll.

So it should come as no surprise that, when a parody of Lewis F. Muir's "Waiting for The Robert E. Lee" (of which there's a lovely midi here) popped into the noggin yesterday, it was based a joke that was old and tired when Jim Carrey made The Cable Guy ten years ago:

It seemed like a pity
To dip in the kitty,
But Sex and the City
Was raunchy and witty;
So I broke down,
Rang up my cable guy--
Made a decision
To pay for my television:

"When can you get here
To hook up my set here?
I'm starting to fret here--
Break into a sweat here,
'Cause I can't stand
Waiting around to see
The glories of cable TV."

That was April the 1st--
Tuesday, April the 1st.
Then came the 3rd,
4th,
5th,
6th.
He promised the 7th,
And then the 11th.

It's the 24th of July--
Still no sign of the guy.
How I berate
Fate,
Waitin' like a moron,
Waitin' for my cable TV.

Lyric © 2005 Nathaniel DesH. Petrikov

Martha's Out

The Nyok Times reports that Martha Stewart ceased to be a Mountain Mama as of 12:30 ack emma and winged it back to Westchester:

http://www.nytimes.com/2005/03/03/business/media/04cnd-martha.html?hp

She said that, while in stir, she met some "extraordinary people." As one might say, on meeting a frightful bounder, "What an extraordinary person!"

I can't make up my mind about her crime, if crime it was. There doesn't seem to be any doubt that she lied about her sale of ImClone; the thing was obvious--particularly the erasure in the broker's notes, which was, let's face it, as transparent as Brooklyn cronyism. But the activity she lied about--insider-training--is hardly a moral crime, and therefore is at most malum prohibitum. Forbidding people who know things from acting on their knowledge is like outlawing any other perfectly human activity, and just about as effective.

A six-month stretch is certainly a novel way of quadrupling one's portfolio, though.

Regarding the Picture Below . . .

Below (I hope) is a pic of young Gideon Crawle atop Mt. Lafayette in New Hampshire, America. Apart from having frozen eyebrows, he seems to be in fine fettle and--judging from his eyebones--he even seems to be smiling. I've always been a bit envious of Gideon, but I wouldn't have been in his shoes on February 13 for all the tea in China.

Gideon Crawle on Mt Lafayette, 13 February, 2005

Over the Hill

A friend of mine, who's in his fiftieth year, spent February 13 of this year climbing Mount Lafayette in New Hampshire, and sent me a jpeg to prove it:

. . . Well, that didn't work very well. The "upload image" button is wanky, and I haven't time to peruse "help" at this point in the day's proceedings. We'll have to come back to this.

Tehran by Christmas!

On the way home last night, there came to my fevered brain an idea for a parody of van Heusen's "Personality," from "Road to Utopia" (there's a perfectly foul midi file, with verse, here). This morning's commute produced the following:

Before the Shah crapped out,
When he had all his clout,
He sat and sneered at the folks in D.C.,
Supported by his awesome
Persianality.

And when Khomeini scored
With the Islamic Horde,
How did he greet the Great Satan's decree?
He turned around and showed his
Persianality.

Now, what does everyone
Give to Uncle Sam,
When anyone
Is in a jam,
And we begin with J'accuse!?
You know.

So let's concoct a plan
To overrun Iran
And hold elections that truly are free—
They'll tell us we can kiss their
Persianality.

Lyric © 2005 Nathaniel DesH. Petrikov

Everybody Talks About the Weather

The People have come in a body to me, asking, anent the news reports of last night's snowstorm, "O! sage Nathaniel! how ever do reporters in the field manage to find so many denizens willing to bellyache to the cameras about the snow?" My considered reply: "Elefino. Maybe they've been bribed."

I refuse to apologize for my cynicism. Presidential visits, Olympics and whacking great saffron curtains in Central Park may disrupt this City, but no snowstorm within living memory ever has. And no one save Captain Queeg has ever complained about one in my presence.

The folks who grumble to the cameras don't come out at any other time, so I strongly suspect that snow-knocking is a form of seasonal employment, like Santa-Clausing. Whenever the flakes begin to fall, a squadron of specialists emerges from around and about the City, ready, for a modest emolument, to give reporters the feeds they need to season the broadcasts.

To me, a weatherman is like a drummer in a jazz band. His contribution is essential, but boring. Nevertheless, it's necessary to allow him an eight-bar solo from time to time, just to keep him happy. Snowstorms are the eight-bar drum solos of the nightly news.

Someone recently complained of too much politics in the news reports. Well, I would add weather to that complaint.

Mrs. Parker and the Cost of Living

Miss Sallie Parker points out that a blog already exists called "Death and Taxes," operated by one Leigh, who drives a 1991 Sentra. (Beyond that, I know little about him, not having the time to sift years of blogging to figure out whether he's a student, a credit card cop, or what; and whether he lives in the Pacific Northwest or otherwhere. But that 1991 Sentra speaks volumes. With my 1993 Protégé, the two of us could assemble an encyclopedia on the subject of broken suitcases.)

Well, Sallie, your great aunt Dorothy got the drop on both of us, with a slim volume of verse by the same title. So memorable was that volume, that the phrase has been used goods ever since. So it might be as well if I changed the name of my blog to something original. Say, "Enough Rope." Has a nice ring to it, if you'll excuse the pun.

This morning, I was in the greasy spoon near my office and noticed for the umpteenth time that taped near the cash register was a note headed "they raise the prices," followed by a rough-and-ready tariff of new rates. The sign's use of "they" seemed sinister at first, and the use of present instead of present perfect tense had a feeling of the universal about it, as in "When it rains, it pours." But I've decided that the sign simply signifies worker alienation. The owners are absentees; I haven't seen a single authority figure behind the counter in years. There isn't even a supervisor, that I can see. Older workers pathetically advise and direct newer ones, as older children of alcoholics guide their siblings in the way of the world, but nobody's actually in charge.

I imagine the owners in some remote aerie, issuing orders by telephone—not chatty calls, like those of John Forsythe in "Charlie's Angels," but terse commands, followed by a dial tone. The workers never see or take part in the legislative process, nor can they appeal from it; in short, they're no better than customers. The effect of this method of business operation is to create a bond between staff and clientele; a feeling of "we're all in this together" and "whatcha gonna do?" Which is why I never tip 'em; I wouldn't want to insult a comrade with a bourgeois gratuity.