The Volokh Conspiracy

The disregard for the separation of powers by the "pro-life" conservatives in this case has been staggering. The other day Rick Santorum was fuming because the judge who got the case didn't rule as they wanted him to. And Bill Bennett was on FOX saying that the judges should have ruled to reinsert Schiavo's feeding tube out of "comity" (I think that's the word he used) for the other two branches, since the legislators and the President obviously gave such high priority to the case.

Of course, maybe he meant to say "comedy." A very black one, considering the horrific human tragedy of this case.

Perhaps Mr. Hewitt did not read the 11th Circuit decision, which quite clearly addressed the issue of Congressional intent. That court even reproduced the transcript of an on-the-floor exchange with Senate Majority Leader Frist. The Senate, at least, knew exactly what the law would require federal courts to do: review the case under extant procedural rules. That Mr. Frist, Mr. DeLay, and Mr. Hewitt wanted (even expected) a different outcome is no reason to condemn the judicial branch that followed the laws written for it.

Following the written law is what conservatives used to espouse. Now they 're looking for certain outcomes. That used to be called judicial activism, and conservatives used to oppose it. These Culture Wars are hard to follow.

Whatever happened to the distinguishment between morality and legality?

Hewitt is mistaken that the judiciary is behaving contemptuously. On the contrary, the district court and 11th Cir panel have both bent over backwards to apply a statute rife with constitutional infirmities.

Perhaps Hewitt is confusing the courts' conduct (as expressed through their thorough, cogent opinions) with the contempt which Congress in fact deserves.

Perhaps Mr. Hewitt did not read the 11th Circuit decision, which quite clearly addressed the issue of Congressional intent.

I thought the same thing, so I went back anc checked his blog, and he hadn't read the decision.

Nonetheless, that doesn't explain the privileging of intent over the clear meaning of the text (re: intent: given the circumstances and the speed with which the statute was drafted and passed, delineating a single, univocal intent is really problematic).

It has been interesting watching the television coverage and general punditry regarding the Schaivo case, because you can immediately tell who is being reasonable and balanced vs who is trying to mislead and play to emotions. Hewitt seems to be an intelligent guy, so I must conclude that he is choosing to mislead his audience.

The federal courts are now forced to take a de novo look at this according to the new law, this fact is true. But thats not the issue before the court right now. Currently, the court has to decide whether a preliminary injunction should issue reinserting the feeding tube. There is obviously not enough time to hold a new federal trial to determine Shavio's wishes before she expires, as has been ordered and enacted into law. So in order to determine whether the injunction is to issue, the court has to determine if there is a substantial likelihood that they will succeed later on the merits. The court HAS NOT said they are refusing to look at the case de novo....they will, in due time. They just won't issue a preliminary injunction to put the tube back in because there is very little chance that Terri will win.

The burden of proof is on the family to show this "substantial liklihood of success." After spending so much time in litigation and forcing the state trial court, the 2nd DCA, and the Florida Supreme Court to look at this case again, and again, and again, the courts have ALWAYS ruled that Terri would want to have the tube removed. The Supreme Court has denied cert. multiple times.

Here's the bottom line--anyone who believes that there is a substantial liklihood that the family will prevail on the merits is fooling themselves. Whatever you think of the underlying moral issues, the court ruled correctly, and Congressional action was not disregarded. Next time, the Congress should perhaps make themselves more clear writing the law, instead of debating amongst themselves at 1 in the morning.

Andrew C. McCarthy argues that Judge Whittemore ducked the true cause of all the legislative maneuvering in the same vein as Hugh Hewitt. However, they should be more cognizant of the fact that the fault lies with the plaintiff and Congress.

There might be some room to argue that Congress gave the federal courts de novo review of the facts pertaining to this case, but the plaintiffs failed to contest the issues that McCarthy and Hewitt address. If the plaintiffs had presented their original claims, I believe the federal court would have ruled on the merits. The parents could have forced the court to examine the Constitutionality of the case being brought to the federal courts and at least bought some time.

What you're missing is that there is a vast disconnect between Congress and those promoting reinsertion of the feeding tube. Congress gave them an opportunity that was "safe" for them in that they new it wouldn't hold up. The plaintiffs then made a "safe" claim to the federal courts in anticipation of the weakness of the Congressional action. This lead to situation in which the federal courts were relieved from reviewing the entirety of the case. Those politically attached to the pro-life stance are willing to blame the judiciary for the weakness of their own counterparts.

"1) People who say Congress has "disregarded the seperation of powers," or other such nonsense. Congress has the exclusive power, as found in Article III, to set the jurisdiction of the federal trial courts (or create new courts, or close old one, yadda, yadda). This is plain-as-the-nose-on-your-face obvious."

But setting jurisdiction is one thing. The bill in question, and this is apparently the source of Delay's and Santorum's complaints, says that the judge must review the issue "de novo" which to us might mean one thing, but to Delay seems to mean "hold a completely new trial in federal court, starting from the beginning" Does Congress really have the authority to do that? Delay also claims that the bill REQUIRES the judge to issue a stay on the order to remove the tube: isn't THAT also a pretty significant claim to a power that Congress doesn't have: telling a court how it should rule on a specific case when it has established no particular general law that would lead to that ruling?

How is this law not a constitutionally prohibited bill of attainder aimed at Mr. Schiavo?

I think the very limited nature of the TRO request noted by Apodaca above is key. I believe the statute as written would have permitted the petitioners to have raised the substantive merits of the underlying decisions in the federal complaint (and I think it is here where the federal statute would eventually have been ruled unconstitutional). Given petitioners' failure to raise these claims and focus on the procedural claims, the court ruled (correctly, I think) on the issues actually before it instead of actively reaching out to fulfill Congress' supposed intent. For those dissatisfied with the ruling, criticism of the court is misplaced - it should be focused at petitioners' attorneys.

People like Hugh Hewitt are why we have an independent judiciary, legal processes, and so forth.

It's a complete fallacy that in this age judges act according to the law. Everyone knows that Judes, from the Supreme Court on down, do what they want because they perceive themselves to be our Robed Masters. In fact, most judges take this direction from the Supreme Court, which casually disregards the will of the people and Congress as if democracy was nothing more than a strange affliction that must be rid of.

With that in mind, it's obvious that the Judges in this case are going to do everything in their power to murder Terri Schiavo. The principle at work is this: they will not question, in a de novo review or a preliminary review or anywhere else, the actions of Judge Greer. Why not? Because to upset his ruling, and the subsequent appeals and everything else, would expose his rulings as mistakes. And as Judges know, Judges do not commit mistakes. They are our Robed Masters, after all. They're elite.

The best indication that you're losing an issue is if you're arguing before a judge. If you're at that point, you've already lost. The entire judiciary is in league with Evil.

People who only care about outcomes often think that that's all anyone else cares about either. For such people -- of whatever ideological stripe -- appeals to the 'rule of law' are either (a) incomprehensible; (b) thought to be bad faith; or (c) both.

Joel B. put it well in his comment:

Even under Rule 65 the question of Would a person be considered to have been denied due process if they were starved to death without any proceeding in a court, by a court? seems to be a substantial case on the merits as well. Remember, that the case is to be considered irrespective of any proceedings in the state court. So start from zero
and ask the question.

As I put it in my blog at http://www.rasmusen.org/x/

An Indiana judge might declare that I, Eric Rasmusen, am hopelessly vegetative (since I’m conservative) and there is clear and convincing evidence that I would have wanted to die (since I’m smart, and any smart person would want to die if he were hopelessly vegetative). He could order the door of my office nailed up, so no food and drink would reach me, and forbid anyone to go in or out for three weeks. On appeal, the Indiana courts could say that they see no reason to overrule the trial judge.

Could Congress pass a law authorizing review of the Indiana judge's finding of fact, or a new finding de novo, by a federal judge?

If Congress can do that, then the federal judge *must* issue a TRO, according to ordinary principles of when TRO's are appropriate, if he thinks I have a substantial chance of winning.

The problem in the Schiavo case seems to be that the plaintiffs only claimed the Florida courts erred procedurally and did not argue for a de novo review of the facts.

The majority opinion in the 11th Circuit was VERY clear on the legislative history. To recap:

1) The original bill said that the court "must" issue a TRO;
2) The bill was then amended to say the court "may" issue a TRO;
3) The relevant paragraph was then removed entirely;
4) In the course of debate on the final bill, Sen. Levin asked it to be clarified on the record that, by deleting the paragraph containing the word "may," Congress was not evidencing an intent that the TRO be mandatory;
5) Sen. Frist agreed with this, stating that the court was free to issue a TRO, and that he assumed it would do so under the circumstances, but that the bill did not require it; and
6) Sen. Levin made it clear on the record that he was agreeing to pass the bill on unanimous consent, and not to require a full roll call of the Senate, based upon this representation by Sen. Frist.

I think that is as much of a slam dunk as you ever get from the legislative history of a bill.

What is truly remarkable is that the dissent did not ignore the legislative history; rather, it considered the exact same history and concluded that notwithstanding the above, Congress still intended for a TRO to issue. I confess that I am completely unable to follow its reasoning in this regard. Maybe the issue comes down to the meaning of "intent" as opposed to "expectation" or "hope."

Whittemore discusses the standing of the plaintiff in this case. He explains that he feels that he must acknowledge a responsibility to review this case de novo. It is the fact that the plaintiff is looking for injunctive relief that makes the question of Constitutionality moot as found in Benning v. Georgia (11th Cir. 2004) Unfortunately, the plaintiff missed a great opportunity right here to have a federal judge re-hear the entire case. It was a mistake not to put forward the entire set of claims, since the court was given full authority to do so by University of S. Ala. V. American Tobacco Co. (11th Cir. 1999). They simply would have had to allege the same claims of their initial case:

United States District Court for the Middle District of Florida shall have jurisdiction to hear, determine, and render judgment on a suit or claim by or on behalf of Theresa Marie Schiavo for the alleged violations of any right of Theresa Marie Schiavo under the Constitution or laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment
necessary to sustain life.

For more on this go here.

Charley, I am sure the Schindlers asserted all the state law claims they could think of in the course of the state court litigation. The recent law only gave the Middle District authority to hear federal and constitutional claims. At this point, the state claims would merit at best footnote stating they are res judicata and at worst sanctions as frivolous.

On the issue of legislative history, see the unintentionally hilarious filing by Dennis Hastert et al. that's linked at How Appealing:

http://legalaffairs.org/howappealing/032305.html#001142

Basically, they chastise the 11th Circuit for failing to understand the statute they enacted. It's like that moment in "Annie Hall" when Marshall McLuhan steps out from behind the potted plant. Except in "Annie Hall," the idiot wasn't McLuhan.

Is it possible the Republicans in Congress knew the law they passed would fail exactly as it is failing now, and in fact designed it to fail?

Is it possible the Republican Senators are acting out an elaborate ritual sacrifice to energize the GOP base?

Congress may have thought that temporary relief would be granted, but even in the rushed timeframe, it would have been obvious that Schiavo's family would ultimately lose.

I request a webcam be placed in the room.