Nat Hentoff … In the Matter of Life and Death

THE OPEN MIND
Host: Richard D. Heffner
Guests: Nat Hentoff
Title: ”Nat Hentoff…in the Matter of Life and Death”
VTR: 2/12/89

I’m Richard Heffner, your host on THE OPEN MIND. Some time back, when Andy Rooney was my guest, my rather longish introduction that day about fairness and the media – in which I attempted to set the stage for the discussion of our mutual friend Bud Benjamin’s compelling book about the CBS/Westmoreland trial – elicited one angry letter from a lady who didn’t want to have to spend so much time listening to me. Enough, too much, Heffner:. She wanted more of Rooney. And I couldn’t blame her.

Well, today I’m sure that most of you want Nat Hentoff, my peripatetic gadfly guest, rather than me. So that I’ll keep this one short, real short…having already quickly and appropriately, identified him with Aristotle and Socrates.

Nat Hentoff writes for The Village Voice, for The New Yorker, seemingly for every other interesting medium, too, about every interesting subject imaginable: jazz, free speech, abortion, Israel and the Palestinians, John Cardinal O’Connor, a boyhood in Boston, a lifetime of concern for the needy, and on and on and on. Indeed, I think I haven’t invited him to The Open Mind time and again before this mostly because I could never quite figure out which subject o question him on. I still can’t, really…though Mr. Hentoff wrote a piece earlier this year that I literally can’t get out of my mind, about how New York’s consistently humane and thoughtful Chief Judge, Sol Wachtler – in the matter of Mary O’Connor, recently a woman we otherwise would never have known – saved her from extinction, from mercy killing, , if you will, and I want to talk about that Wachtler decision, about the many ethical problems it and so many other judicial opportunities to take or to preserve life provide us these days. And I want to ask you, Mr. Hentoff, why you picked this case, what about it exercised you so?

Hentoff: Well, I first picked the case because this was the first high3 state court decision in the united states that said that when there is a presumption for life, as in the case of Mary O’Connor, who by the way was and is conscious, she isn’t altogether, she can’t react, let’s say to a philosophical discourse, but she is conscious and she feels pain and she feels pleasure. This was the first time when parents, or in this case daughters, had come to a court and said, “We want the feeding tube, we want food and hydration removed from the patient because the quality of life”, that magic phrase, “the quality of life of this patient, our daughter, our father, our whatever, is of such low quality, that she would be better off dead”. And Wachtler said, “Now wait, let’s look at this, would she, indeed, be better off dead?” All other courts, since the Quinlin case in New Jersey, back in 1972, when the respirator was removed, all other courts, particularly in New Jersey and then Massachusetts and then California, and by now a good many other states, have given the presumption for death. In most of those cases the patient has been incompetent, not terminally ill, not so far as anybody could tell, in pain, but not able to decide for himself or herself, whether he or she wanted to die. So there is phenomenon called “substituted judgment” by which a relative or somebody, a guardian appointed by the court decides for the patient whether he or she will die. Well all the courts, except New York’s have been going along with that, and Sol Wachtler said, “Now, wait a minute, this is going too smoothly” and he stopped it, at least so far as New York is concerned. The question now is, usually, a decision taken by the New York State Court of Appeals, which is one of the most prestigious in the country, California’s used to be, California Supreme Court, but then they had that public political execution of Rose Bird and some of her colleagues, so that’s just another political hack court now, with a few exceptions on the bench. So New York’s has influence. Whether the Wachtler decision will be able to stem the tide toward euthanasia around the country, I don’t know, and anyway eventually this will become a federal matter, it already has in Providence, the united states Supreme Court has not directly address this question whether you can kill somebody because the quality of life, someone says, is not enough to warrant staying alive. So, it’s all very up in the air, but at least I wanted to put down for the record, insofar as The voice is a paper of record, that one judge someplace, one judge plus his colleagues in the majority had decided not to go along with the zeitgeist, which I find to be a very frightening zeitgeist, with parallels to pre-Nazi Germany.

Heffner: Let’s talk about this parallel to pre-Nazi Germany, and the zeitgeist, as you call it…

Hentoff: Yes.

Heffner: You are sympathetic, I’m sure, to the interests expressed by individuals that they do not want to continue to live.

Hentoff: Oh, sure. If somebody is competent…first of all somebody competent, but in a terrible physical, emotional situation, has the common law right to say “I won’t accept any more treatment”. Not only high tech treatment like respirators and the like, but I won’t accept any antibiotics, I won’t accept anything. That’s, that’s a right. There was a man in New Jersey about two years ago who had Lou Gehrig’s disease, which as you know is a progressive disease, and in his case he was really in a sense, encapsulated in stone, he couldn’t move, he couldn’t do anything for himself, he communicated with his wife, solely by a movement of the eyelid, movements of the eyelid, which she could decipher. He was competent, he was watching the Contra gate hearings, as a matter of fact, he was a fan of Ollie North, I must say. But at some point he communicated to his wife, “I can’t stand this anymore, there’s no way I’m going to get any better. I want to die”. And she helped him die. Now there’s a gray area here as to whether you can assist a suicide, but in any case I have no…it’s chutzpah for me to even give an opinion, but I certainly would not object to what that man did.

Heffner: You’ve never hesitated to give an opinion before.

Hentoff: Yeah, but when you mess around in somebody’s private life, especially when it’s a matter of life and death, one tries to be discreet at least. I am more concerned with those organizations, like the Society for the Right to Die, or concerned for dying, which, and I’m sure they are honestly full of good intentions, seem to be on an obsessive kick to make it easier and easier for people to die. They get involved with court cases which they have all the right in the world to do, but what struck me…I read their newsletter, it’s an equivalent to me, in my adult years, of horror stories when I was a kid, they don’t intend them to be. But in one of their newsletters there was a list of how many people there were in the united states in hospitals who are incompetent, and that was it, just the list, and I wondered what on earth would they put that for? Was that sort of like the goal of the week that they were going to take care of all those people? I mean it’s incredible, and they’re the ones, by the way, in my business, who have pretty much the full support of most reporters and most editorial writers.

Heffner: Why?

Hentoff: It’s become a reflexive kick.

Heffner: Why?

Hentoff: Because all of us reporters, or journalists, or not like to be, consider ourselves compassionate, and in this kind of very difficult field, it appears to be the compassionate thing to go along with the parents or the relatives or whatever, and for the good of the patient, make sure that the patient is no longer living. Therefore the patient no longer is just lying there with this terrible quality of life, the burden on the parents or the relatives is gone, both the emotion and the financial burden, so who could be against that?

Heffner: You don’t make it sound so wrong.

Hentoff: I don’t make it sound so wrong until you begin to look into the individual cases, which most reporters…I mean, we in the business of journalism, it seems to me, one of our besetting sins is preset. You come into a story, unless it’s a brand new phenomenon, and there are very few of those, they happen every once in a while, but you come into a standard story, most reporters do and most editors do, with a preset. You figure, for example, If you’re in a small town and you know this politician is not the most honest person in the world, you’re ready to go along with the DA and be the prosecutor in the press without necessarily having all the evidence, all you have is the indictment, and that’s enough to ruin this guy’s reputation long before he goes to trial. He may be guilty, I’m not talking about that. In the euthanasia field the preset is that the people who want to, and I don’t see why I should euphemize, who want to kill the patient for the patient’s own good, and for the relatives’ own good, that they’re right. Similarly there’s a preset in the press, and has been for a long time that abortion, anybody who is against abortion is either a right wing Catholic kook, or a busybody, or altogether without compassion, whereas abortion is a very complicated subject. But you won’t find that out reading The New York Times or The Wall Street Journal, or any of those places because there the pro-choice people are the ones who fit into the preset. Of course they don’t say that the choice is there is no choice for the fetus, and they don’t say pro-choice means pro-self, which is an accurate, and I think, honest way of putting it. Anyway, what I’m saying is that when you go into euthanasia as a subject of news, I’ll give you another example, The Times has a man, very good reporter, who specialized in this kind of story, and his sub-specialty was stories about elderly people, who went into the sunset together, committed mutual suicide…

Hentoff: …and I tell you, you could hear Bach’s “Come Sweet Death” in the background, was very moving stuff. Finally, a psychiatrist wrote in who specializes in treating the elderly, and they took the letter and they gave it a small place in the letters column, saying “Did it ever occur to you that a lot of these people, these elderly people are in a clinical depression, and that if you are able to diagnose that, and try some therapy, lithium or some other kind of mood-elevating therapy, then they won’t want to commit suicide”. But the bobsled toward rationalizing all these deaths is swift, and compelling in journalism, that that never occurred to that writer.

Heffner: You know I listen to you, you talk about journalism now, and you’re being very negative on the subject.

Hentoff: Not.

Heffner: Although I did notice, I don’t…we don’t know each other…

Hentoff: Yes.

Heffner: …but I wondered whether it’s a New Year’s resolution, you quickly said, “It seems to me”. When I heard that I thought, my gosh this guy has decided he ought to be a little more modest and put in “it seems to me”.

Hentoff: Oh, people used to tell me to do that in the column, and I stopped doing it because first of all, it’s repetitive…

Heffner: You have to do it every paragraph.

Hentoff: Yeah, and I just did it here, I slipped…I’ll forgive myself, and not do it again.

Heffner: But.

Hentoff: Because it’s evident if you’re giving an opinion, that means “it seems to me”.

Heffner: Okay, now about that opinion.

Hentoff: Yes.

Heffner: You’re noted as an absolutist First Amendment person.

Hentoff: No, I’m not.

Heffner: No?

Hentoff: I mean I’m noted as such, but it’s not accurate. You can’t be absolutist, I think, at anything without being a fool. I mean Hugo Black, Justice Black, was…thought of himself as an absolutist, and yet he was the one who said that if a bunch of people came into the Supreme Court conference room while they were deliberating, and began to yell and scream, he’d have them tossed out by the nearest cop.

Heffner: All right now, a bunch of people in a sense, come into the conference room when the press…

Hentoff: Yes.

Heffner: …lines up the way you say it does on the matter of life and death…

Hentoff: Yes.

Heffner: …what, what do you want to do about that?

Hentoff: You mean to counter what I consider to be this…

Heffner: Whatever. You’ve described a…

Hentoff: Yes.

Heffner: …a very unfortunate situation.

Hentoff: What I do is the only thing I can do. Fortunately I have, as you said in the introduction, I have a number of outlets, I write a column for the Washington Post every week, called “Sweet Land of Liberty” in which I often get into this subject, and which I criticize the press when I see it acting in a monolithic way. And I do the Voice column, and I do some radio series, and all that stuff. But I do wish, and this isn’t modesty, I do wish we would get back to where we were, oh, maybe twenty, thirty years ago when press criticism really amounted to something. When you had Don Hollenbeck, for example, on CBS doin g a marvelous, I thought, sometimes acerbic and often very illuminating critique of what the pres was doing, and I can’t think of a city in the united states in which, for example, the local…a local broadcast news operation will ever say on the air “Our competitors across town really screwed up that story last night. Let us tell you what they should have done, and how we did it”. You don’t see a newspaper doing that. You do get some press columns, very occasionally in The Washington Post, but they’re expository, they give you news. But the press is allowed to get away with some of the most appalling errors and distortions because, you know, some papers have ombudsmen, that’s great, but only I think 36 papers in the whole united states have ombudsmen, that is a reader’s advocate, who works for the paper but has complete independence, and often can do a chillingly effective job of showing, in print, the mistakes a paper has done. But most of the time we get away with doing whatever we like without any criticism, which is why people find the press arrogant and distant.

Heffner: It’s interesting you picked the phrase “chillingly effective”…

Hentoff: Yes.

Heffner: …since the complaint is always made “such criticism will have a chilling impact upon the freedom of the press”.

Hentoff: Oh, but that…that phrase, that cliché, but it’s nonetheless a pretty good one, that’s made in terms of the government doing things to the press that can chill it. For example, when Richard Nixon tried to threaten the owner of The Washington Post with taking away her television stations if she didn’t stop the Watergate probe. It comes into play…there’s a big oilman in Texas who sometimes has some government affiliations that is used to try to chill the newspapers, but there’s nothing at all wrong with the press criticizing itself. But we are like doctors and lawyers who never criticize each other in public.

Heffner: then you were approving of the late Don Hollenbeck…

Hentoff: Oh, yes.

Heffner: Were you approving of the late National News Council?

Hentoff: No, the National News Council was something else.

Heffner: Not governmental?

Hentoff: Yeah, I know, I understand that, but I have a tendency perhaps out of my own temperament and background to be in favor of the Lone Ranger, the individual critic rather than some…once you get institutionalized, you don’t know what’s going on underneath. I happen to have, I mean the guy who ran the National News Council last, Dick Salant, who used to be the head of CBS News, I have a lot of respect for. But I had some very direct experience with that Council, I wasn’t the defendant, but one of our reporters who won a Pulitzer was, and she was accused, because of pressure from Al Lowenstein’s great and good friends, like the late Jimmy Wechsler, she was accused of having falsified a story that put Lowenstein, I thought not in a terrible light at all, but anyway his friends were offended. That was one of the stories that got her the Pulitzer. So I did a very careful check as to their sources for this stuff, no decent newspaper, in fact no indecent newspaper in the United States would have printed those charges because there was no substance there. But they were going around to the Pulitzer Board, the National News Council, saying that the prize should be taken away. So, it seems to me if you can get some friends, a friend in there who can so distort the Council, I don’t have much faith in it.

Heffner: Do you have faith in any, first non-governmental, now not the National News Council, is there some way, aside from the individual newspaper’s…

Hentoff: Yes.

Heffner: …ombudsman, of doing something along the lines that you want to see done?

Hentoff: I don’t see any official group as being of much help. Because an official group, as I said before, becomes I mean, you…again this is personal, I am averse to institutionalized structures.

Heffner: Of any kind.

Hentoff: Of any kind. In the academy, or not in the academy, you need it for cancer research, but I’m not so sure (laughter) how much that impedes the research, I just don’t know. But certainly in something like the press there is no reason why if there are a thousand points of light, as it were, of critical light, within the press, criticizing each other mercilessly, as they would do once it gets started because you want to knock your competitor any way you like, that to me should have a lot of credibility, and could also, I mean nobody likes to be caught in the open having made a mistake. Especially you don’t like to be caught in the open by one of your colleagues on another paper or broadcast station, and nobody does that, it’s crazy.

Heffner: Of course, you want to remind our viewers that there isn’t such an attitude at the present time on the part of the press, nobody’s doing it.

Hentoff: That’s right, that’s what I mean.

Heffner: Okay. Look, let me get back for a moment to this matter, when we were talking about, let’s call it mercy killing, substituted judgment. If you or I, if our judgment cannot be expressed about what happens…

Hentoff: Yes.

Heffner: …to us, what substitute is there for that, other than substituted judgment by our families, our friends?

Hentoff: Well, one of the ways it is said, and I don’t agree with it, is the Living Will. Before you go into the hospital, even when you’re not in the least sick, or whatever, you put down as specifically as you can, if anything happens to me that makes me incompetent I don’t want to be in a situation where I’m in an intensive care unit, and they’re continually battering at me with all kinds of medical and technical devices, so that I can, so that I’m worse off than when I went in, in any case I don’t want to be dependent on technology to breath, let’s put it as simply as that. You put that in a Living Will. In some states that should protect your desire. However, there is another problem. There are any number of surveys that indicate that most people, most people, no matter what they think they wanted in these times of extreme crisis, when it gets to that point, insofar as they remain competent long enough to say what they want, they want to live, they want to live any which way they can. So you may get trapped if you write a Living Will and it is held up, upheld rather, in a given state, but my god…”I want to change the Will”, too late. So that’s a problem. It’s a very difficult, difficult problem.

Heffner: Mr. Hentoff, it’s a problem and I’ve seen that among friends, I’ve seen that…

Hentoff: Me too.

Heffner: …in my family.

Hentoff: Me too.

Heffner: What’s the solution, not that we have to assume there’s an answer to every question, but it’s so real this…

Hentoff: I’ll tell you one solution, and it’s too new to tell whether it’s going to be a solution, or a possible solution. In New Jersey they have an ombudsman for people past a certain age, I think 60, I’m not sure.

Heffner: 60! You mean you and I have an ombudsman now?

Hentoff: if you live in New Jersey. And you’re in a hospital, or…no, I’m sorry you’re in a nursing home, they have not extended his powers to hospitals, yet. You’re in a nursing home, and you are incompetent, and an uncle, if you have no closer relatives, comes in, or your children come in and they say, “I want so-and-so off the respirator. I want him off the feeding tube”. The ombudsman calls on independent medical opinion, and if there is finally a congruence of informed, medically informed view then the request is granted. And I’ll tell you one story about the ombudsman. There was a woman, a very elderly woman whose, one of whose relatives wanted her off the feeding tube. She was supposedly in a persistent vegetative state, that’s what the resident neurologist in the nursing home said, the one who made all the visits, they brought in, the ombudsman brought in two doctors, one agreed with the resident neurologist “there’s nothing ever going to happen with this woman”, the second one, the second doctor that was brought in by the ombudsman, said to her “Hello”, and she said “Hello”. And that was the end of that. Now that is not the ordinary occurrence. But I’m just saying (laughter) you’ve got to watch out for those exceptions. Now this ombudsman has managed to antagonize practically everybody in the life and death business in New Jersey.

Hentoff: The nursing home people don’t like him the hospitals are afraid he’s going to come in there, the right to die societies would like to lynch him, if I may expand the metaphor a little, because he’s doing his job. It’s very unpopular these days to say that these people ought to have a shot outside, outside the immediate wishes of the family, because the family first of all is not always right, the family lord knows is distracted, and grief-stricken and is not always able to make the best possible judgment. So I like the ombudsman idea.

Heffner: You…that’s where you make your bet.

Hentoff: Yeah, I don’t know how…

Heffner: Nat Hentoff says, at the moment…

Hentoff: Yeah.

Heffner: …Nat Hentoff says.

Hentoff: In other words, I believe…yeah, I ran into a rabbi in Jerusalem, he’s a philosopher, he’s a big macher in many ways, David Hartman, I’d never met him before, and there was a brief respite between the discussion, and I met him in the corridor and he said, “Hentoff, I want you to tell me the most important development in the history of mankind”. And I said, “Due process”. He said, “Right”, and that’s the last I ever heard of him. But I believe in due process, and I don’ think you get, these people get…are getting due process.

Heffner: They’re not getting due process from the…

Hentoff: From anybody.

Heffner: …ombudsman?

Hentoff: No. the ombudsman is due process, that’s the first time I’ve…I heard …I mean Living Will, because of its equivocal nature, once you have the experience that you can’t, you can’t possibly anticipate until you do have the experience, that’s not due process. The relatives and the immediate physicians are not due process, the ombudsman and his independent medical view, opinions brought in by other doctors, that could be due process.

Heffner: You know, I said at the beginning of the program that I knew I’d want to talk to you about so doggone many things that it would be impossible. But I want to talk with you about Wachtler’s decision, I want to…

Hentoff: Yes.

Heffner: …talk to you about all these things but, you talk about due process, and just before you came in here, the Judge from the Steinberg trial was here…

Hentoff: Yes.

Heffner: …and we talked about cameras in the courts…

Hentoff: Yeah.

Heffner: …and it may not be quite fair, since I have such pronounced feelings myself on the subject, what do you think about cameras in the courts?

Hentoff: I think it’s utterly absurd to not have cameras in the courts. First of all, it’s illogical. If you have print reporters in the court who are there, who have their special seats because they are the surrogate of the populous at large who can’t get in, they’re working, there aren’t enough seats, then why on earth can’t you bring in cameras as well?

Heffner: So you don’t think there’s really any difference between the electronic media…

Hentoff: Not any more. I mean cameras can now be so…relatively unobtrusive that, I mean the fear has been in the past, I understand, that Judges and Das and defense attorneys would “ham” it up, or defendants would “ham” it up. When you’re in a trial you got to keep your wits about you, I don’t think you have the time or the capacity, really, to be that theatrical.

Heffner: Well, let’s just turn for a moment, though, to this matter of what the rabbi asked you about and your answer was “due process”.

Hentoff: Yeah.

Heffner: …the most important thing. Cameras in the courts creates a court of public opinion that is larger, by far…

Hentoff: Oh, sure.

Heffner: …than that which has existed before. Hentoff is arraigned before a Judge and there’s the camera in its full glory.

Hentoff: They do it…they do worse things now. When they did it before we had this experiment in New York, they had what is called in the trade “the perp walk”. Somebody isn’t even arraigned, he is arrested, and he is brought to wherever he’s going to be brought to be arraigned and you see him with his coat over his face, but to make it easy for the audience they’ll show you a picture of when he didn’t have his coat over his face, and nothing has happened to this guy in terms of any kind of guilt, and yet there he is.

Heffner: Are you cheering this, or hissing it?

Hentoff: I think it’s terrible. I couldn’t stop it, I wouldn’t stop it, it’s a First Amendment right to…unfortunately it’s a First Amendment right to violate due process sin this way, but I think it shows sleaziness on the part of TV stations, especially local stations, that doesn’t surprise me.

Heffner: but you want to, you want to extend the potential for this.

Hentoff: I think it’s important for people to understand, and to see what actually goes on in a trial. In this…there are problems there, you know. The other fear that people, that judges have usually more than anybody else, is that the stations will simply extract the two or three most salacious moments, or sexy moments to use that old sexist term.

Heffner: is there much question about that?

Hentoff: Well, let me go on. When you have a case like the…

Heffner: 30 seconds.

Hentoff: …Steinberg case, you saw an awful lot of that testimony, and that was, I think very illuminating, and especially illuminating was the cross-dialogue between the judge and the attorneys, especially defense attorneys. I’m willing to sacrifice or to admit, I can’t help it, that there will be some of that, but some stations will do more of it. I think we can stand it.

Heffner: You know, not the total, and I’m told we have to cut…

Hentoff: Yes.

Heffner: …was seven or eight percent of trial proceedings on television, but that’s the point…

Hentoff: Yes.

Heffner: …that I need to say thank you so much for joining me today, Nat Hentoff.

Hentoff: Sure.

Heffner: And thanks, too, to you in the audience. I hope you’ll join us again next time. And if you care to share your thoughts about today’s program, please write to THE OPEN MIND, P.O. Box 7977, FDR Station, New York, NY 10150. For transcripts send $3.00 in check or money order. Meanwhile, as an old friend used to say, “Good night and good luck.”

Continuing production of this series has generously been made possible by grants from: The Rosalind P Walter Foundation; the M. Weiner Foundation of New Jersey; the Mediators and Richard and Gloria Manney; the Edythe and Dean Dowling foundation; Mr. Lawrence A Wein; the New York Times Company Foundation; and, from the corporate community, Mutual of America.