Posted on 03/24/2005 11:24:34 AM PST by Crackingham
The United States Congress and the governor of Florida have devoted extraordinary and all but single-minded energy to keeping Terri Schiavo alive. But all they have achieved so far is a bitter lesson in judicial supremacy.
It is a lesson as old as Marbury v. Madison, the 1803 case in which Chief Justice John Marshall famously said that "it is emphatically the province and duty of the judicial department to say what the law is," and as fresh as Bush v. Gore, the 2000 decision that decided a presidential election.
Its latest teachers were Judge George W. Greer, of the Pinellas-Pasco Circuit Court in Clearwater, Fla., and the federal appeals court in Atlanta.
Judge Greer blocked Gov. Jeb Bush from following through on a suggestion at a news conference that state officials might take Ms. Schiavo into protective custody. And, even as he agreed to consider overnight what state officials called new evidence that she might be conscious, Judge Greer staked out a primary role in the process.
A lawyer for the state told the judge that the three branches of the government are equal.
"That is indeed true," Judge Greer replied, "but the executive is certainly not superior."
And the United States Court of Appeals for the 11th Circuit, in Atlanta, in successive decisions yesterday of a three-judge panel and then the entire 12-member court, refused to order Ms. Schiavo's feeding tube to be reinserted notwithstanding a law enacted by Congress on Monday that many of its supporters thought required at least that.
If nothing else, this series of decisions vindicated the one conception of American judicial power.
"It has been the basic premise of the three-branch system set up by the Constitution," said Eric M. Freedman, a law professor at Hofstra, "that judgments in individual cases are to be made by judges and not legislative bodies or executive officials. That division, which originated from unhappy experience in England, has been a valuable protection of liberty in this country over many centuries."
The decisions also illustrate how protective the judiciary branch can be of its status in a divided government.
"Judges don't like to be fooled around with," said Mark Tushnet, a law professor at Georgetown. "If executive officials or legislators do something that judges think look as if they're being fooled around with, they will be extremely resistant."
And judges often protect their own.
The federal judges whom Congress authorized to rehear the Schiavo case seemed reluctant to upset what their state-court colleagues had decided.
In his decision refusing to reinsert the feeding tube on Tuesday, Judge James D. Whittemore, of the Federal District Court in Tampa, expressed solicitude for Judge Greer, saying that accusations that he had acted in a biased and unlawful fashion were "without merit."
At the same time, he explained to Congress and to Ms. Schiavo's parents that the new law did not require him to preserve Ms. Schiavo's life. Her parents had not demonstrated, he said, the only thing that mattered in court: a substantial likelihood that they would succeed on the merits of their case.
The divided three-judge panel that upheld Judge Whittemore's decision, in turn, went out of its way to praise his work as "carefully thought out" and took the relatively unusual step of appending it to the majority decision.
In almost the same breath, the two judges who joined the unsigned majority opinion, Ed Carnes and Frank M. Hull, said the law enacted on Monday could not undo years of litigation in the Florida state courts. And in what could be read as a dig at Congress, the judges suggested that better drafting might have yielded a different result.
"Congress considered and specifically rejected provisions that would have mandated, or permitted with favorable implications, the grant of the pretrial stay," the majority said.
An early version of the legislation passed on Monday said that the district judge hearing the Schiavo case "shall" issue a stay of the state court proceedings. A later one said it "may" issue such a stay. The law as enacted omitted the provision entirely.
Yesterday's panel decision quoted at length and with something like glee from an exchange between Senator Carl Levin, Democrat of Michigan, and the Senate majority leader, Bill Frist, Republican of Tennessee.
Senator Levin asked Senator Frist about the significance of the omitted stay provision.
"Nothing in the current bill or its legislative history mandates a stay," Senator Frist replied. "I would assume, however, the federal court would grant a stay based on the facts of this case because Mrs. Schiavo would need to be alive in order for the court to make its determination."
Dr. Frist assumed wrong, the majority suggested. Indeed, the music of the panel decision was that Congress could not win. Had it passed the earlier version of the law, the courts might well have held it unconstitutional. The version Congress did pass, the panel majority said yesterday, was ineffective.
Our Judiciary is "morally dead" and as such we should stop feeding and watering them.
Judicial supremacy my behind...
Congress and the Florida legislature both passed laws delegating the final decision/determination to .... THE COURTS!
This is the answer to the left's argument "why have 11 or so judges/courts always ruled with Michael Schiavo?". Professional courtesy. The same reason sharks don't eat lawyers!
Well, they thought wrong.
Not possible.
However anyone wants to play this, the fact remains that a disabled woman is being starved and dehydrated to death on the order of a state court judge.
Once this idiot wrote that Bush v. Gore decided the election I stopped reading. The voters, through the Electoral College, decided it. The courts did nothing but delay it. I guess the NY Times administers an oath to its reporters to propagate this lie everywhere they can.
Water instead the tree of liberty.
F*** the voting booth! What good does it do to elect people if they cannot do anything when they control everything. The people need to take the country back. Can we recover from a sin like this? I am so frustrated by this...I cannot fathom the next direction we are to take as a nation. I am so ashamed.
Allow me to introduce you to the supremacy of the American people. All inferior federal courts serve at the pleasure of Congress, which in turn serves at the pleasure of the American people. If it pleases the American people Congress can eliminate all inferior federal courts, including the federal court that ruled on the Schiavo case.
Section. 1. The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.
Ours is neither the power of the purse nor the sword but of moral persuasion.
He who has the power to interpret the laws is in fact the lawmaker.
No, the lesson is that conservatives think it's OK to involve the judiciary for their cause, but not OK when the liberals do it.
And I'm speaking as an embarrassed conservative.
The Terri Schiavo case gave the conservatives the ideal opportunity to stand up and say that this is not a federal issue and we will not use the courts to get our way.
How can conservatives ever again point their finger at liberals who use judicial activism to get their way?
Correct.
Yeah, but that'll never, ever happen. The courts make far too convenient of a scapegoat for Congress to ever eliminate them. Look at the case at hand - Congress passes a do-nothing bill, and then gets to blame the courts when nothing gets done. Talk about having your cake and eating it too - they don't have to take responsibility for doing anything, and they get to escape any blame for doing nothing.
The President proposes,
The Congress disposes,
The Courts superimpose.
What law usurps this womans right to life? When a citizens Constitutional rights are being trampled, what should we do?
No, but the executive is independent, and can act on its own, and is not bound in every action by the opinion of the judiciary. Were that to be true, a judge could order you to commit a crime, then order the executive not to interfere with said crime, and then issue an order not to arrest the judge himself for participating in said crime.
Which is what's happening right now.
The President goes to Congress and says, "I want to invade BadOLandia and depose the Dictator". Congress says Cool, here's the money, we authorize you to proceed.
He does.
Ramsey Clark files suit in the 1st District alleging that the President has gone to war without a Declaration, and the Judge, a Clinton appointee, agrees. She issues an injunction enjoining the President from conducting the war. In fact, she orders the President not to order the troops into any "combat situation" related.
The President ignores Judge Lewinsky, and continues with the war.
Now what? The President has acted independently and within his authority, as he sees it. Judge Monica disagrees. She believes she is the final authority as to whether the war is legal or not. So she asserts control over the President's actions.
Who's right, CrackerMan?
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.