Sheridan: Con-Law

ARROGANT WHO???

When Congress interceded in Schiavo by passing a midnight, Sunday, bill, called "Terri's Law," that was signed by President George W. Bush, who flew in from Crawford, Texas, to be sure to sign it in time for the morning news, one might have wondered what was going on. 

"Terri is dying of starvation and lack of water by order of the Florida court system," is one answer.  She certainly was.  Her husband Michael had persuaded the Florida judge, Greer of Pinellas County, that this is exactly what she wanted.  Judge Greer then either ordered or endorsed the husband Michael's order to pull the feeding tube after fifteen years of this.  Very few people would look forward to living indefinitely without regaining function or consciousness.

The resulting outcry was a spectacle to behold. It was as if no one had ever died in this country before, or the state had never before been active, complicit, or understanding of the fact that we all have to go sometime.

So Congress got into the act, but not all of Congress.  The person spearheading the bill was Tom DeLay, the Republican from Texas who was playing to his Bible Belt base, the fundamentalist Christian right, the moral majority.  Mencken's term for the great unthinking mass of American people was the great booboisie, of whom it should never be underestimated, nor overestimated.

Now that the federal courts have not re-decided the Schiavo case the way DeLay wanted, and have Florida's procedures and orders correct and supported by the evidence, DeLay is upset.  He is on record as saying that if federal judges didn't start paying attention to what Congress wanted there's going to be trouble.  He complains of arrogant activist federal judges, yet complains more when they aren't arrogant and activist enough to suit him and his gang in Congress.  Since he's the boss in Congress, being Majority Leader of the House, when he talks people had better pay attention.  Not that they need to heed what he says, but the way you listen when a loose cannon threatens to go off again because it just has.

DeLay of Congress is threatening to make war on the federal judiciary.

The story is below, from the Houston Chronicle:

UMPIRE'S CALL, NOT PLAYERS OR FANS

This morning, Ms. Schiavo passed away.  The following was written last evening in a discussion with some friends on a hometown site where some of the folks were saying unkind things about Judge Greer and Michael Schiavo, and appearing to believe that the more agitation there was, the more likely it was that the judicial process could be reopened to accommodate it, despite the case having already been adjudicated.

See what you think, and when you're done, be sure to read Robert Friedman's column in the St. Petersburg Times.  It's reproduced below, in the continuation.  He nails it. 

The 11th Circuit's Judge Birch also nails it, having flatly pronounced that "Terri's Law" was unconstitutional in that Congress and the President were interfering in the decision-making process and outcome of a single contested case, contrary to the plan of the Constitution.  Congress is supposed to legislate, not decide cases, and there's a big difference. That's the job of the judiciary, to hear and decide cases.

Since Judge Birch is a conservative Republican, appointed by the current president's father, when he was president, when Judge Birch criticizes Congress and the President for trying to get into the act should mean something.

***

I think it's important to keep one's eye on the ball here.

When a dispute arises, such as whether a person in a persistent vegetative state ever expressed a view one way or another as to whether he, or she, would want to linger in that state for years or have the tube removed, what do we do? How do we resolve such a dispute if it arises between, say the husband, and the patient's parents, as in Schiavo?

You know the answer. The parties go into court and eventually there's a trial of that issue: did the woman express herself. Husband testifies if he heard her say something on this, and parents testify to say what they heard or didn't hear.

Which court? Federal? Nope. Federal courts don't have jurisdiction. You wouldn't bring such an action in federal court for a number of reasons, of which I'll list a few:

1.  Federal court exists mainly to resolve federal claims involving federal laws, such as federal criminal cases, rights created under the Civil Rights and Voting Acts, Americans With Disabilities Act, and a host of other federal statutes.

2. Federal claims frequently raise claims of whether Congress was granted the power to legislate in a particular area.  That is a subject we study in a course on Constitutional Law.  These powers were given by the original 13 states to the newly established federal government in 1787 when the new Constitution was drafted. It took another two years to sell it. In 1789 the USA went into business, HQ in NYC.

3. The powers given to the new central government are found in Art. I, Sec. 8, Clauses 1-18. They include taxing, spending, borrowing, regulating commerce, naturalization, coining money, establishing post offices, declaring war, maintaining an army and a navy, patents, trademark and copyright, and the power to make all laws "necessary and proper" to carry out all other powers granted to this new national government that the states were setting up in competition to them.

The states were very leery of this new creature they had just set up, because they didn't want it (the baby USA) to grow up and become all powerful and then lord it over them.  The states preferred to lord over it.

So the states, while giving up powers they no longer wanted, held back on the big power that they did want to keep. This is called the "police power." The federal government has no general police power.  It does have a police power over territory it owns or controls, such as our current and former island possessions, such as, before independence, the Philippines, and currently Guam, and American Samoa, and military installations and parks.

The police power is not just the power exercised by polie officers.  It is much broader, and includes the power to regulate (enact laws) having to do with:

1.  Health,
2.  Safety,
3.  Morals, and
4.  Welfare

All powers not given to the new federal government were expressly retained by the states and the people. Amendment X, ratified 1791 as part of the Bill of Rights. The deal was that certain wise people refused to go along with the new Constitution unless it contained a list of rights reining in the new central government. When this was agreed to, the anti-Constitution people agreed to sign on. Madison drew up the list (by consulting state charters to see what was missing in the way of rights). He drew up a list of twelve. Ten were adopted right away. That our Bill of Rights, Amendments 1-10. Of the two not adopted at the time, one was adopted 203 years later in 1992. It says that no law raising or lowering Congressional compensation shall take effect until a new House of Representatives is elected in the meantime.

Back to Schiavo.

Neither Michael Schiavo nor the Schindlers could originally have filed their dispute in federal court because state law governs the treatment of people in a vegetative state. This is one reason that it took an Act of Congress one Sunday midnight recently to grant a federal court jurisdiction.

So they aired their dispute in Florida's state court, the local one where they live, in Pinellas County, near Tampa.

Judge Greer caught the case, poor guy.

The Schiavo case was another family law related matter, like hundreds of others having to do with divorce, alimony, child custody and the like. These are all family law matters, generally speaking.  If  not assigned to Family Court, they'll be heard in general civil court, as opposed to criminal. Filing Terri Schiavo's case in state family or civil court was thus the most natural thing to do, indeed, the only place to go.

So the contending parties have their hearing and Michael is appointed as his wife's guardian, since he's her husband. This gives him control over certain things, such as how his wife is treated, by whom, who can visit, when, how long, etc. All this is usual.

What is also quite usual is that Judge Greer makes a decision on whether Terri is in this persistent vegetative state, as claimed, or not. And later he has the privilege of hearing whether the tube should be pulled or not. This depends on what Terri wanted. Michael says she wouldn't have wanted to live this way. Her parents said whatever they said in opposition.

So Judge Greer, after hearing what there is to hear in the way of medical reports, doctors' testimony, family member testimony, etc., now decides. Terri did/did not want to continue to live in this state. She did/did not want the tube pulled.

Judge Greer decided, based on the evidence produced in court, that Terri's answer, stated during life, was that she did not want to live this way ad infinitum. There's nothing unusual about Terri saying such a thing. Most of us wouldn't want to exhaust our family's savings, die a lingering death that makes everyone upset, and messes up the memory of any of the happy things we did in our lifetimes. That's just a guess, but I guess more than a few people might think that way.

Let's say the Schindler's disagree with Judge Greer's finding and don't like the way he conducted the trial. Maybe he kept out some hearsay evidence and admitted some report that the Schindlers objected to considering.

What is their remedy?

They get to appeal to the next higher court in the Florida appellate food chain. 

They lose in the next court up.

So they ask the Florida Supreme Court to review that intermediate court's decision about whether Judge Greer conducted a fair hearing, made the right rulings on evidence, and whether his decision was supported by sufficient evidence, such that it was "clear and convincing."  The Florida Supreme Court looks at the record and agrees with the appellate court below it that Judge Greer conducted a fair hearing and that his decision was supported by sufficient evidence.

Okay, now the Schindler's are done.  They've lost all the way up the ladder.

Now they're stuck.

Judge Greer made his decision and everyone is now stuck with it, whether they like it or not.

Now what happens?

Are there any more courts to go to?

No.  They're done.

Can't they go to federal court?

For what?

What federal issue exists?

None.

Judge Greer's decision was all a matter of state law.

The feds have no right to interfere. The Schiavo case is not about the army, the navy, commerce, coining money, patents, and the like. So the Schindlers cannot enter federal court.

That's why it took an Act of Congress to open a route for them. Congress enacted, and Pres. Bush signed into law a bill that would allow a federal court to review the proceedings in this one case only.

So the case then went into federal court.

The U.S District Court also reviewed the Florida proceedings conducted by Judge Greer. US District Judge Whittemore said those proceedings were fine. The Schindlers appealed to the judges who review his work, the U.S. Court of Appeals for the 11th Circuit. They agreed with Judge Whittemore. His review of Florida's Judge Greer was fine. The Schindlers knocked on the door of the U.S. Supreme Court. We're not taking this case up, was the reply.

The Schindlers knocked on the door of the 11th Circuit again yesterday. Can we file just one more brief, they asked, we've had time now to think of something else, after the deadline for filing of 3/26. Sure, why not, said the 11th Circuit, let's see what else you've come up with. So the Schindler's file their new argument and the 11th Circuit isn't impressed with that either.

After all, the Schindlers have been given a lot of at-bats. Presumably they used their best stuff earlier on, so now anything they submit looks like a desperation move, motivated by the impending death of their daughter, which everyone in the world agrees is a terrible tragedy.

So what we now see going on is a bunch of people who don't want to accept Judge Greer's decision, even though all these state court judges have said it was, based on the evidence produced by both sides in open court, fine and dandy, as tragic as it may be. A tough call by the umpire, but hey, that's why we have umpires.

Now the protesters are calling Michael a bad guy and Judge Greer an incompetent, all because the protesters don't like the umpire's call.  When the President of the United States takes in a baseball game, he's just a spectator, sitting in the stands.  He doesn't get to call balls and strikes or who is safe or out on the bases. He doesn't even have power to call foul balls.  He might have an opinion, but it's the men in blue suits, the umpires hired by Major League Baseball, who have jurisdiction to make the official calls.  Even if Congress does not like the call at first base and passes a law stating that whenever the president visits the ball park he may call balls and strikes, that law is no good.  Congress doesn't have the power to pass a law giving the president to be a baseball umpire.  State laws of contract and employment see that only the men in blue suits hired by MLB get to make official calls on the field.

Same with Judge Greer.  He's the man in the blue suit.  He calls fair and foul in state court.  He decides who wins and loses cases heard by him.  Because state law gives him that power, and not some federal judge. Or Conress.  Or the president of the U.S., George W. Bush.  Or the governor of Florida, Jeb Bush.

Okay, you don't have to like it when the umpire says fair instead of foul, or safe instead of out, but who are we going to let decide such things? The players on this team or that? The fans? Which fans, the hometown fans or the visitors?

It's the umpire's call. Sorry. Sorry you don't like the call. This is why we have umpires. You don't get to replay the game because you don't like the call. We don't have instant replays so that the fans in the stands get to judge. We have something better. We have the trial record and then we have an appeal system in the Florida court system in case the umpire made a wrong call. That doesn't mean a call you disagree with. It means he applied the wrong rule, or the right rule the wrong way. But if Judge Greer applied the right rule in the right way according to his best judgment of what the evidence showed, then his call stands.

Oh, still not happy with that? Want to go into federal court? You'll need an Act of Congress. Oh. You got what? An Act of Congress? Wow, good for you. Now you can go into federal court. Oops! The federal court agreed with the whole system of Florida courts, trial and appellate? That is a tough situation, isn't it.  Suppose the federal courts made a different ruling, purporting to overrule Florida's Judge Greer?  Would the ruling stand?  Not if the Act of Congress were later held an unconstitutional exercise of a power reserved to the states. 

I have my doubts about the Constitutionality of Terri's Law, that Act of Congress that the President flew in to Washington, D.C. from Crawford, Texas, to sign at midnight on a Sunday.  I suppose Congress could pass a law at midnight on a Sunday, but short of a declaration of war in an emergency, I'd be suspicious of anything rammed through on such a basis.  But that's not why it is unconstitutional. 

One federal judge on the 11th Circuit, Judge Birch, wrote that in his opinion the Act was unconstitutional as going against our whole constitutional setup.  It's kind of like passing a law allowing federal officials to act as state officials.  It confuses matters.  It commingles powers that are supposed to be kept separate.  We have a whole huge body of law on the issue of separation of not church and state but federal government and state. 

There's a wall there too.  You just have to know where it is.  You can't see it, because it's not made out of wood or stone.  It's made out of laws.  You have to read lawbooks to understand where it is.  After you've done that, or had it explained to you, then you are entitled to an opinion as to whether it has been breached or not in a particular case, such as in Schiavo.

But the effort in Schiavo is now over, unless someone comes up with yet another way to get around a decided matter.

This doesn't mean that Judge Greer is a bad guy, or that Michael is a bad guy. All the protesting and railing and emotionalism only means that you disagree with Judge Greer's decision. It is not even a sad or a tragic decision. It is what Terri said she wanted. Judge Greer believed the evidence of Michael. It was Judge Greer's call to make. Someone had to make that decision, yea or nay, and he made it. People can cry and moan all they want that the decision did not go the way they wanted it to go, but so what? Are we going to keep trying the same case over and over until something changes? Is the runner allowed to try again when he's thrown out at first base? Of course not. It's the umpire's call. The review upheld the call. Move on.

That is how the legal system works. Eventually, each case comes to an end. That's why people on death row are executed, innocent or not. Why? Because they lost their trial and all their appeals which said they were guilty. If it later turns out they were innocent, it's too late, they're dead and buried. If you don't like that, get rid of the death penalty, then that mistake cannot happen again.

In conclusion, what all the demonstrators and protesters seem to be doing is trying to retry the Schiavo case here, on the Internet, in the media, etc. Have a good time. But those forums don't count. Even if the Congress and the President wanted to see Terri live, at this point, under existing law, they're stuck. Judge Greer's decision stands unless and until he, or a Florida appellate court, or, now, a federal appellate court overturns it as having been wrongly decided as a matter of law. That hasn't happened. So the Congress and the President and the Governor of Florida and everybody else are all stuck, no matter how they protest. This is one of the things we mean when we say we are a nation of laws and not men. We're not allowed to make it up as we go along. If a proper procedure is conducted in a proper court, the decision stands unless and until it is overturned by a higher court.

Everything else is nothing but talk, unless and until it translates into new legislation. We've seen that once. I haven't seen it again, at least not so far.

I wouldn't bet against anything in this case, however.
 

      

LAST RITES

Florida Governor Jeb Bush is on the hot-seat among Terri Schiavo's parents' supporters for not saving her life.  I can't violate a court order, he responds.

Here's the report.

Last rites were performed as death is imminent after 10 days without water or food.

 

CULTURE WARS

We're probably ALWAYS going to have culture wars.

The alternative is that we all agree with one another on everything.

I can't begin to imagine that, much less imagine how wonderful that would be.

The best I can do is to think that the process of struggling against all the competing views is the good thing about living here, in this country.

Why?

It forces us to keep thinking, reexamining our own premise, predilections, biases, certainties, new conclusions, old beliefs, etc.

There are lots of places where this is not tolerated, including here, at times.

Yet it happens.

Europe is tuning into Schiavo.  Are we tuning into Europe?  I don't think so.

Why? 

Not interesting. 

Florida? 

Interesting.

If the world were not full of idiots, lawyers would be out of jobs.

BANANAS

If the Schiavo case has you going bananas, thank your lucky stars.

Two couples were dining out when the other fellow excused himself.  When he didn't come back in fifteen or twenty minutes, I went out looking for my friend.  I found him lying outside the restaurant in the parking lot next to a planter box that he'd hit on the way down, tearing up his face.  Mugged in the parking lot? I asked as the paramedics brought him to. 

No.

He'd collapsed, suddenly, just like that, for the first time in his life.

After the hospital workup, it turned out that he had a potassium deficiency which damn near killed him.

Since then he eats a banana a day, or takes a potassium pill.  Bananas contain nutritional potassium which keeps you ticking.

Terri Schiavo had an eating disorder described as bulemia.  She collapsed, just like my friend.  Only no one was around apparently, or not soon enough, and her heart stopped beating, depriving her brain of oxygen through blood flow.  Part of her brain died.  For the next fifteen years she's been a vegetable, living but not thinking, like a turnip.  Hence the sad legal battle. And the term, permanent/persistent vegetative state (PVS).  As in turnip.

Another friend, a successful trial lawyer down at the Hall, appears at the Caffe Roma across the street in mid-morning when it's time for coffee.  That's when I always see him breaking out a yellow banana, more important to him than caffeine.  I don't have to ask what he's doing.  I know.

Eat that life-saving ba-na-nah.'  That's how I heard a woman from the West Indies pronounce banana. She'd written a book on the subject and was being interviewed on the radio.  She always separated the syllables and emphasized the last.  Must've said the word a hundred times in a few minutes.

Okay, Mon, it's Ba--na--NAH!

GOOD LAWYERS AND GOOD CLIENTS KNOW WHEN THEY'RE DEAD

In Bush v. Gore (2000), V.P. Al Gore could have kept fighting but he threw in the towel.  He realized that he was dead, as a practical, political matter, as did his attorney, David Boies.  See Courting Justice, Boies's new book, in which he discusses the case.  So he gracefully conceded and retired from the field of battle, even though he'd won the popular vote.  The popular vote is not required to be elected as president.  The requirement is to win the most electoral votes in the so-called Electoral College, and failing that in the House.  You could ask Samuel J. Tilden, who learned that lesson in 1876 from Rutherford B. Hayes, during Reconstruction.  All Hayes needed to do was to agree to withdraw federal troops from the South and he'd get the necessary Southern votes to be elected president in the House.  He agreed, they voted, and the rest is history. Tilden was dead.

In Schiavo, the lawyers are out of moves and the parents of Terri, the Schindlers, must now move on to thoughts of the funeral and beyond, as this fight is over.  They've done all they could, which is considerable, and now their obsession with keeping their daughter alive will end.  Perhaps they can devote their energy to a more productive goal.  With sympathy, that is the hope.

Whoops!  I spoke too soon.  The Schindlers have most certainly been thinking of funeral arrangements for their daughter.  But it looks like we might be in for another round of litigation.  Michael, the husband, controls the disposition of the remains of his wife.  She wanted to be cremated, he says.  The parents say, no, she wanted to be buried.  As in life, so in death.  More quarreling.  More going to court.  This is why we have courts, to provide a means of resolving disputes before the parties start shooting at each other.  We're better off having these court battles, for as long as they take, as look at the alternative.  Sorry about the Schindlers and the Schiavos.  They're locked in a struggle.  Here's the article. There are other issues, too, such as visiting and photographing Terri.  One can see how both might be abused, requiring tight controls.  No matter what rules he lays down for good reason, Michael will be the bad guy in the eyes of the Schindlers.  Pity.

Here's an article noting the probable end of the tube-litigation with the denial of yet more appeals by the Florida Supreme Court.

On to the disposal-of-the-remains litigation, absent some miracle, or controlling prior Florida decision or law, such as that between warring relatives, husband Michael Schiavo, or guardian/conservator (husband here) controls.

On, now, to the culture wars, of which this is just an episode.  Culture wars are the product of fundamental attitudes, which form the politics of the time, which produce the laws, which become grist for the Supreme Court mill.  This is where we get our Constitutional Law from, the ground up.  It only seems as though it comes from the top down.

But you knew that, right?

I hope so.

Where did you think the justices got their views from, reading law books while on the Supreme Court?

Law clerks fresh out of law school can look up law and tell his or her justice what has already been decided.

Supreme Court justices, meanwhile, however interested they may be in what has already been decided, have a bigger problem:  what are we going to decide THIS time?

That comes down to a value judgment.  And what influences one's value judgments?  Everything. Your parents, your exposure to religious belief or non-belief, your emphasis or lack on rationality, your education, political experience, real-life experience in marriage, work, books, poems, and plays you responded to, sports and athletics, military service, wars during your time, the headlines, friends, enemies, and everything else you've ever been exposed to.

Decisions come from there, not lawbooks.

The Court will cite case of course, to make it appear that we're only deciding this case based on prior law and here it is.  But the Supreme Court is the only court in our subinfeudated system which, like the king, is above the law.  It does not have to honor prior law.  This fact, and it is a fact, is what allows the court to break with prior law and give us new liberties such as privacy, abortion, gay rights, right-to-refuse unwanted medical care (Cruzan), etc. 

Were we stuck with prior law, we could never change.

Those who disagree with the direction of new law become very upset over "activist" judges taking us in new, uncharted directions.  "Down the toilet goes the Republic," is their watchword.

Yet we've survived Griswold and progeny, haven't we?

HAVE YOU NO SHAME, CRUSADER?

Suddenly I'm beginning to understand why the Muslim world hates "Crusaders" so much. No "turn the other cheek" or "the meek shall" accomplish anything with these guys.

Someone asked Ghandi(?) what he thought of Christianity. A wonderful idea, he replied, why not try it?! Or words to that effect.

"Have you no shame?" were the words hurled at Sen. Joseph McCarthy during the Army-McCarthy red-baiting hearings of around 1954 by Joseph Welch, representing the Army. McCarthy had picked on a young law clerk and former soldier, trying to paint him black, red, or both.

Those words, "Have you no shame, at long last, have you no shame, Senator?" have become famous because they resonated with the viewing public and began the turning of the tide against the arch-witch-hunter of our era, Tailgunner Joe. They reflect a sensibility of fairness and a reaction against an excessively frightened form of hysteria represented by McCarthy in which everyone was a communist or afraid of being smeared as one.

The Crusaders for Terri are calling now Michael Schiavo a murderer.

Have you no shame, Crusader?

MEANINGLESS MOANS AND GRUNTS FAIL TO TURN TIDE

This AP report from the Detroit Free Press states that Florida state judge Greer has denied yet another motion to restore the feeding tube, this time on the ground that Terri Schiavo grunted something in reponse to a question that an attorney wants to believe meant something. Moans and grunts are consistent with a persistent vegetative state, ruled the judge.

Meanwhile, the attorney leading the charge into federal court, Gibbs, states that there's nothing left to file in any federal court, ending that weeklong effort.

Robert Schindler, Terri's father, has told supporters not to make a spectacle by getting themselves arrested.

It's one thing for federal judges to be brave, since they're appointed for life and cannot be removed except for misconduct.  It's quite another for state court judges, such as Greer, who have to run for re-election periodically, to make tough calls, as here.  People will lose jobs over this case, one Terri supporter reportedly said.  Greer has apparently received threats and is escorted by sheriff's deputies.   In recent weeks the family of a federal judge was murdered by an apparently deranged litigant, and a state judge in Fulton County (Atlanta) Georgia was murdered by an escaping prisoner who had overpowered a guard.

Judge George Greer, who has steadfastly withstood more pressure than any other state judge that I can recall, or federal for that matter, has paid a price.  He's a conservative Republican who has had this case assigned to him for the past seven years.  The pastor of his Southern Baptist church wrote a letter which became public asking him to "side with the angels" and all those praying for Terri to live or to withdraw from his congregation.  Here's the AP article, also Detroit Free Press.

Judge Greer, 63, has been thrown out of church at the time he probably needs it most.  He's been steam-rolled by the public, the press, his political party, the Pope,  Congress, the President, and now his church, and stood up. Skip the Ten Commandments, put up a statue of Judge George Greer in the lobby of the courthouse or the public square.  He's earned it.

When  you go into a federal building these days, and many state courthouses, you are required to dump the contents of your pockets into a basket and walk through a metal detector, after removing your belt and shoes.  For years I carried a neat little penknife that was useful for all sorts of odd little jobs from opening letters to cutting twine on packages.  They're all in a drawer now.  I hated removing my belt (most contain a metal buckle) and switched to suspenders with no metal.  If my jacket is loaded with metal-containing pens, cellphone, pager (I just gave that up as one more piece of trash to worry about), PDA, I just remove the jacket and send that through the detector, which spares me searching myself and forgetting a foil wrapped lifesaver or sinus pill.

The world is full of crazy people, and many of them become clients.  As I've told my psychiatrist friend, he has it all over attorneys.  He knows going in that his patients are nuts, but we have to figure out which ones among ours are, and we don't have his training.

An obsession is a disorder whose key feature is the inability to give it up even when you know it is harming or destroying you.

Do you think that there might be any obsessed people associated with the Schiavo case?

FEDERAL COURTS COMPLIMENTED FOR HANDLING OF SCHIAVO CASE

The Washington Post is complimenting the federal judiciary for its prompt and professional handling of Schiavo, as opposed to Congress and the President who look more like...I hate to use the term... "politically pandering ninnies."

washingtonpost.com

 

Good Judgment

Saturday, March 26, 2005; Page A14    

     

NEITHER CONGRESS nor President Bush acquitted themselves well last weekend in enacting a law to intervene in the case of Terri Schiavo. But in the days that have followed, one institution of American government has distinguished itself in its handling of the matter: the federal courts.

The new law put the courts in an impossible position. It gave the U.S. District Court for the Middle District of Florida jurisdiction to hear any federal claims brought by Mrs. Schiavo's parents, and it instructed that it do so without deference to the previous state court adjudication. It thereby sent an unmistakable message that the legislature wanted the federal courts to order Mrs. Schiavo's feeding tube reinserted and her life prolonged. But if Congress dumped Mrs. Schiavo's tragedy into federal court, it did not change the substantive law that governs it there. And there is no serious question under federal law concerning the state court's determination that Mrs. Shiavo was entitled to refuse artificial life support and would not have chosen to live in a "persistent vegetative state." In short, Congress leaned on the courts to consider a case that had little merit and to take a step within that case that the law would not support easily. To their credit, up and down the appellate ladder, the courts refused.

We usually avoid harping on the partisan identifications of judges, but it is worth noting that this refusal was quite apolitical. Judge James D. Whittemore, the district court judge who twice this week courageously declined to order the feeding tube reinserted, was appointed by President Bill Clinton. Notwithstanding the jurisdiction Congress created for his court, he rightly ruled that Mrs. Schiavo's parents were still unlikely to prevail on the merits of any federal claim -- and were therefore not entitled to an injunction. The two members of the appeals court panel who affirmed his judgment Wednesday were appointed by presidents Clinton and George H.W. Bush. The full appeals court, which is ideologically diverse, declined to intervene, with only two judges openly dissenting. The Supreme Court likewise stood aside.

The message is a blunt and welcome rejection of a crude maneuver by Congress. While judges have a duty to interpret and apply the law as Congress writes it, they also have a duty to stand up to politicians when the law so requires. Perhaps the only happy outcome of this most unhappy case is that the federal judiciary did not let itself become an instrument of political manipulation.

   

    © 2005 The Washington Post Company

11TH CIRCUIT UPHOLDS WHITTEMORE'S DENIAL OF 2nd REQUEST FOR TRO, ON SDP GROUNDS

The U.S. 11th Circuit Court of Appeals on Friday, 3/25/06, for the second time upheld, on an appeal from a denial, by USDJ Whittemore, of an application for a TRO (1st amended) filed by the parents of Terri Schiavo.  The opinion is here.

I've lost track, as someone else reports this is the 3rd denial by the 11th Circuit; perhaps the denial of the first TRO application was upheld twice, once by the 3-judge panel and again by the full bench, i.e. en banc.