Absent any new evidence then what grounds did the judge have for overturning a decision that had been upheld before?
Obviously, he had none. As for the law itself, it was an amazingly bad one. Tinkering with appellate review procedures to affect the outcome of one case ought to boggle the mind of anyone concerned with the idea of "rule of law." I now understand why the U.S. Constitution prohibits Bills of Attainder.
"Bills of attainder, ex post facto laws, and laws impairing the obligations of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. ... The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and less-informed part of the community." - James Madison, Federalist Number 44, 1788.
I don't think the point is that Judge Whittemore should have necessarilly overturned the ruling so much as he should have actually retried the case from the very beginning. I'll copy something from Thomas Sowell's 3/25 article:
"What the law just passed by Congress did was authorize a federal court to go back to square one and examine the actual merits of the Terri Schiavo case, not simply review whether the previous judge behaved illegally. Congress authorized the federal courts to retry this case from scratch -- "de novo" as the legislation says in legal terminology.
"That is precisely what the federal courts have refused to do. There is no way that federal District Judge James Whittemore could have examined this complex case, with its contending legal arguments and conflicting experts, from scratch in a couple of days, even if he had worked around the clock without eating or sleeping.
"Judge Whittemore ignored the clear meaning of the law passed by Congress and rubberstamped the decision to remove Terri Schiavo's feeding tube.
"Nor could the judges on the Court of Appeals have gone through all of this material "de novo" in a couple of days after Judge Whittemore's decision. They have added to the number of judges that liberals can count but they have not followed the law -- which is what really counts.
"The federal judges have rushed to judgment -- in a case where there was no rush legally, despite a medical urgency. Terri Schiavo was not dying from anything other than a lack of food and water. These federal judges could have ordered the feeding tube restored while they gave this issue the thorough examination authorized -- and indeed prescribed -- by the recent Congressional legislation.
"As dissenting Judge Charles Wilson of the 11th Circuit Court of Appeals put it, the "entire purpose of the statute" is to let federal courts look at the case "with a fresh pair of eyes." But, by the Circuit Court's decision, "we virtually guarantee" that the merits of the case "will never be litigated in a federal court" because Terri Schiavo will be dead. Never -- regardless of how many judges are counted as talking points."