Has the Schiavo case Become a Political Football?

WASHINGTON -- Florida Republican Sen. Mel Martinez says an infamous unsigned memo passed around on Capitol Hill emphasizing the politics of the Terri Schiavo case originated in his office without his knowledge.

The memo -- first reported by ABC News on March 18 and by The Washington Post and The Associated Press two days later -- said the fight over removing Schiavo's feeding tube "is a great political issue ... and a tough issue for Democrats."

"This is an important moral issue and the pro-life base will be excited that the Senate is debating this important issue," said the memo, which was described at the time as being circulated among Senate Republicans while legislation was being considered to place Schiavo under the jurisdiction of federal courts.

Martinez said in a written statement that he discovered Wednesday that the memo had been written by an aide in his office.

"It is with profound disappointment and regret that I learned today that a senior member of my staff was unilaterally responsible for this document," Martinez said. "This type of behavior and sentiment will not be tolerated in my office."

He said he accepted the resignation of the staffer who drafted and circulated the memo. Martinez did not identify the aide, but The Washington Post said he was the senator's legal counsel, Brian Darling.

"Until this afternoon, I had never seen it and had no idea a copy of it had ever been in my possession," Martinez said of the document. He had previously denied knowing anything about the memo and condemned its sentiments.

The memo had been disavowed by Senate Majority Leader Bill Frist, R-Tenn., and House Majority Leader Tom DeLay, R-Texas, both primary forces behind Congress passing the bill and sending it to President Bush on March 21.

Democrats had pounced on the document as evidence that Republicans were seeking a political advantage in the fight between Schiavo's husband and her parents over removing her feeding tube 15 years after she suffered severe brain damage that left her incapacitated.

Schiavo, 41, died last Thursday in a Pinellas Park, Fla., hospice 13 days after her feeding tube was removed. During the interim, federal courts repeatedly rejected what Republicans said was the intent of the bill: to have the tube reinserted and prolong Schiavo's life.

Martinez, in his statement, said Sen. Tom Harkin, D-Iowa, had asked for background information on the bill ordering a federal court to review the Schiavo case.

He said he pulled a one-page document from his coat pocket and handed it to Harkin. "Unbeknownst to me ... I had given him a copy of the now infamous memo," the statement said.

Martinez said Harkin called him earlier Wednesday to say he believed he got the memo from Martinez. The Florida senator, in office for only three months, said he then ordered an internal investigation in his office.

Allison Dobson, a spokeswoman for Harkin, said the Iowa Democrat had received the memo from Martinez in the days leading up to passage of the bill.

Martinez said he has apologized to Florida's senior senator, Democrat Bill Nelson, who is up for re-election in 2006 and was cited in the memo because he had declined to become a sponsor of the bill.

Thomas wrote:

How so? Please show me how it doesn't violate the 14th amendment to create a situation where one set of laws applies to Terri Schiavo, and a different set of laws applies to everybody else in her situation.

mysteryman wrote:

I suggest you actually READ the constitution. Article 3 Section 2 is quite clear.

I don't see how Article 3, Section 2 is relevant to the explanation I requested. I never claimed that this article is the reason I think it's unconstitutional. I was explicitly referring to the 14th Amendment, and I think it is clear from my post that I had its equal protection clause in mind. (Perhaps you should read people's posts before telling them to read the constitution.) Another reason I think Congress acted unconstitutionally, one I didn't mention, is Section 9, Clause 3: "No Bill of Attainder or ex post facto Law shall be passed." In passing its lex Terri Schiavo Congress changed the rules of civil procedure for a case that was already being tried. I'm not claiming any legal expertise, but this strikes my as ex post facto law -- law that is made after the fact. And it changed those rules for one family, but not for any other family. This strikes me as unequal protection of the law. Do I think Lex Terri messes with federalism? Yes I do. But I object to that because I think it's a very bad idea, not because I could find a constitutional provision that protected the relevant state right. I may have missed some provision, and I don't know the relevant case law here, but for the purposes of this thread I'm not claiming a violation of constitutional states rights.

Now, mysteryman, can you please explain to me how you reconcile Lex Terri with the Fourteenth Amendment and with Section 9, Clause 3?

Section 1: . . . No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. . . .

Section 5: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Neither Terri nor her parents were singled out for punishment -- the Congressional enactment did not single out anyone for punishment -- thus the constitutional prohibition does not apply.

Likewise, ex post facto laws apply only to criminal statutes.

Ex post facto
1: done, made, or formulated after the fact: "retroactive"

2: of or relating to an ex post facto law
Example: the chief concerns of the ex post facto ban -- L. H. Tribe

Ex post facto law
a civil or criminal law with retroactive effect.

The equal protection clause of the Fourteenth Amendment would not prohibit Congress from passing a "private bill" with respect to Terri because the Fourteenth Amendment applies ONLY to STATES -- not the Federal Congress. RE: No STATE shall . . . deny to any person within its jurisdiction the equal protection of the laws.

Let me jump on this opportunity to agree for once with MM. Mel showed some class and will reap rewards for his candor.

I see a man admitting a mistake,or a lapse in good judgement,and accepting responsibility for his actions.
I see a man admitting he was wrong,instead of passing the buck or blaming anyone else.
I see a man willing to admit his mistake,instead of blaming society,or his parents,or his upbringing,or anything else.

WASHINGTON - The legal counsel to Sen. Mel Martinez, R-Fla., admitted Wednesday that he was the author of a memo citing the political advantage to Republicans of intervening in the case of Terri Schiavo, the senator said in an interview Wednesday night.

Brian Darling, a former lobbyist for the Alexander Strategy Group on gun rights and other issues, offered his resignation and it was immediately accepted, Martinez said.

Martinez said he earlier had been assured by aides that his office had nothing to do with producing the memo. "I never did an investigation, as such," he said. "I just took it for granted that we wouldn't be that stupid. It was never my intention to in any way politicize this issue."

Phoenix,
I admit that the memo was a stupid idea that should never have been written,but you look at things differently then I do.

I see a man admitting a mistake,or a lapse in good judgement,and accepting responsibility for his actions.
I see a man admitting he was wrong,instead of passing the buck or blaming anyone else.
I see a man willing to admit his mistake,instead of blaming society,or his parents,or his upbringing,or anything else.

I realize that in todays society,such a thing is rare and frowned upon,but I see a man that admitted he f#$%ed up and willing to pay the price for his error.

He IS a freshman. But handing out documents without looking at them?

Phoenix,
I admit that the memo was a stupid idea that should never have been written,but you look at things differently then I do.

I see a man admitting a mistake,or a lapse in good judgement,and accepting responsibility for his actions.
I see a man admitting he was wrong,instead of passing the buck or blaming anyone else.
I see a man willing to admit his mistake,instead of blaming society,or his parents,or his upbringing,or anything else.

I realize that in todays society,such a thing is rare and frowned upon,but I see a man that admitted he f#$%ed up and willing to pay the price for his error.

Neither Terri nor her parents were singled out for punishment -- the Congressional enactment did not single out anyone for punishment -- thus the constitutional prohibition does not apply.

Fair enough. I didn't rely on the "bill of attainder" part of the clause for my argument, and quoted it only for the sake of quoting a complete sentence.

Likewise, ex post facto laws apply only to criminal statutes.

Not according to Webster's legal dictionary, as served by FindLaw's website.

Webster's legal dictionary wrote:

Ex post facto
1: done, made, or formulated after the fact: "retroactive"

2: of or relating to an ex post facto law
Example: the chief concerns of the ex post facto ban -- L. H. Tribe

Ex post facto law
a civil or criminal law with retroactive effect.

The entry on ex post facto law goes on to mention criminal law as a special case, but the definition of the term is not limited to criminal cases, and the constitution itself does not distinguish between civil and criminal ex post facto law.

Ex Post Facto Laws

Definition .--At the time the Constitution was adopted, many persons understood the term ex post facto laws to ''embrace all retrospective laws, or laws governing or controlling past transactions, whether . . . of a civil or a criminal nature.'' But in the early case of Calder v. Bull, the Supreme Court decided that the phrase, as used in the Constitution, applied only to penal and criminal statutes. But although it is inapplicable to retroactive legislation of any other kind, the constitutional prohibition may not be evaded by giving a civil form to a measure that is essentially criminal. Every law, which makes criminal an act that was innocent when done, or which inflicts a greater punishment than the law annexed to the crime when committed, is an ex post facto law within the prohibition of the Constitution. 1726

The equal protection clause of the Fourteenth Amendment would not prohibit Congress from passing a "private bill" with respect to Terri because the Fourteenth Amendment applies ONLY to STATES -- not the Federal Congress. RE: No STATE shall . . . deny to any person within its jurisdiction the equal protection of the laws.

Let me run with your interpretation and see where it leads. If it is true that only the states are obliged to provide equal protection of the law, then Alabama law cannot constitutionally tell blacks to sit in the back of the bus, but the federal government can. In fact, the federal government can constitutionally segregate everything it wants, and discriminate against minorities in any way that suits its fancy. I admit that this is consistent with a very narrow and literal reading of the constitution, but find it very unplausible as a legal doctrine. Is it really your position?

Adarand's claim arises under the Fifth Amendment to the Constitution, which provides that "No person shall . . . be deprived of life, liberty, or property, without due process of law." Although this Court has always understood that Clause to provide some measure of protection against arbitrary treatment by the Federal Government, it is not as explicit a guarantee of equal treatment as the Fourteenth Amendment, which provides that "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws" (emphasis added). Our cases have accorded varying degrees of significance to the difference in the language of those two Clauses. We think it necessary to revisit the issue here. . . .

Answer: NO

The real Mel Martinez
A Times Editorial
Published November 4, 2004

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The Mel Martinez who ran Orange County government is known for having started after-school programs, fought irresponsible real estate development and courted those with different political views. As the new junior senator from one of the nation's most politically divided states, Martinez will find that such pragmatism will serve him well in Washington.

The retiring senator he replaces, Bob Graham, was an institution in Florida politics in part because he was viewed less as an advocate for partisan ideas than as champion for Florida people. As Graham's successor, Martinez brings his own distinct connection to people who would feel disenfranchised by their government or their communities. His most compelling campaign story was in fact his own life, the oft-repeated tale about how he fled Fidel Castro's Cuba through a Catholic-sponsored program called Pedro Pan and landed in America as a 15-year-old with no family and no English. He will be the Senate's first Cuban-American.

On Wednesday, as his Democratic opponent Betty Castor conceded in a race decided by roughly 75,000 out of 7-million votes cast, Martinez reached out to her supporters. Castor herself showed a familiar dignity in defeat, saying she had little interest in the legal combat that has come to be associated with close elections. But Martinez will need more than a gesture to separate his office from the ugliness and excesses of his campaign.

Long after leaving Republicans embittered by his appeals to bigotry and his vulgar attacks on former U.S. Rep. Bill McCollum, Martinez used his general election campaign to tar Castor, a distinguished former legislator and education leader, as a terrorist sympathizer.

When challenged, Martinez was too eager to assign blame to his staff or to groups he said he couldn't control. As a senator, he will need an office and a staff that speaks with the measured and centrist tone he says will be his own. He can't pretend to be above it all if the people he employs are not.

"A lot of people who knew Mel are wondering if he's been taken over by Washington operatives, or if we just didn't know him in the first place," former Orange County chairman Linda Chapin told a reporter recently. "Because issues like honor and integrity were always important to the Mel that we knew."

In his victory speech, Martinez said that "bringing people together is my nature." He now has the duty as U.S. senator to prove it.