True but the 11th Circuit erred by finding that the federal district court judge conducted a de novo review as mandated by statute. There was no such review, just complete deference to the findings and conclusions of Greer in the state court.
"The denial of Plaintiffs’ request for an injunction frustrates Congress’s intent, which is to maintain the status quo by keeping Theresa Schiavo alive until the federal courts have a new and adequate opportunity to consider the constitutional issues raised by Plaintiffs. The entire purpose for the statute was to give the federal courts an opportunity to consider the merits of Plaintiffs’ constitutional claims with a fresh set of eyes.Denial of Plaintiffs’ petition cuts sharply against that intent, which is evident to me from the language of the statute, as well as the swift and unprecedented manner of its enactment. Theresa Schiavo’s death, which is imminent, effectively ends the litigation without a fair opportunity to fully consider the merits of Plaintiffs’ constitutional claims.
We should, at minimum, grant Plaintiffs’ All Writs Petition for emergency injunctive relief. First, I note that there is no precedent that prohibits our granting of this petition. Second, mindful of equitable principles, the extraordinary circumstances presented by this appeal require that we grant the petition to preserve federal jurisdiction and permit the opportunity to give Plaintiffs’ claims the full and meaningful review they deserve.
In considering this extraordinary case, I am mindful that “[t]he essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it. The qualities of mercy and practicality have made equity the instrument for nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims.”
Keeping those principles firmly in mind, “mercy and practicality” compel us to grant the relief requested.
If the lower federal court conducted a truly de novo trial, how long do you think the trial would have taken? Granted a motion to reinsert the tubes could have been heard pending the de novo trial, but in considering the motion would the judge not have to consider the liklihood of the party making the motion being successful at trial? As the saying goes "hard facts make bad case law".
The status quo is that Mrs. Schiavo is not receiving nutrition and hydration. The plaintiffs do not want the status quo maintained. They want this Court or the district court to issue an injunction affirmatively requiring the respondents to change the status quo by bringing about the surgical procedure necessary to reinsert the feeding tube into Mrs. Schiavo.That is, say murderers Carnes and Hull by these deceitful words, in paraphrase: "We Judges are not murderers, it is Congress who has ordered her murder to continue."