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.
She let it be known to at least three people that she did not wish to live that way.
The real question is, "What law usurps this womans right to die when there's no hope? And if you find such a law, you've just negated every living will in the country.
Her philandering husband (who stands to gain from said death)and his brother and sister in law. Real credible.
AH jeez, now I'm agreeing with RP. Who'd a thunk it?
This system we have is an insane as would be if doctors who kill a patient through malpractice were subject only to the judgement of a committee of his peers to decide his fate.
Yes, this case was pretty unnerving in a number of ways. I am aghast at the number of freepers agitating for judical activism & looking for the federal gov't to usurp state powers. Not to mention implicit toleration of federal intrusion in family medical decisions & blithe acceptance of the fact that the precedents established here could create socialized medicine.
Freepers need to stop acting like such bleeding heart libs. They are spouting the same ideology as Clinton and Kennedy.
The judge found them so.
You, of course, have some sort of proof of this?
Something beyond the assertions of people who stand to gain 1.2 million dollars by mouthing said assertions?
I am aghast at the number of freepers that think it's ok to starve a person to death. Especially on heresay. Agitating for the federal govt. to butt out and not defend this woman's Constitutional rights. The reason this govt. was formed.
Of course I have proof. But would that make any difference to you? Are you saying that you'd reconsider how you feel about this case if I offered proof?
If so, then I'll gladly offer it. If not, why should I bother?
"Something beyond the assertions of people who stand to gain 1.2 million dollars by mouthing said assertions?"
First off, who stood to gain large amounts of money (besides Michael) by lying to the judge back in 2000?
Second, what $1.2 million are you talking about, the original settlement? $800,000 went into a trust fund for Terri.
So if Terri had a Living Will it would be OK to "starve her to death"?
If a little baby crawled out into a busy highway and sat in
the middle of the road, I'm quite sure that Governor Bush
would risk a jaywalking ticket to rush into the street and
save the child even if the Don't Walk sign was flashing !!!
Terri is an innocent and helpless child right now. Therefore, she
desparately needs someone to bravely risk arrest for jaywalking
to save her life from that evil mob of monsters who are blatantly
attempting to murdere her ... in plain view of the entire world !!!
Jaywalk NOW Jeb !!!
.
Only according to some of the prodeath people here.
That they did! Because they didn't want to make the decision themselves.
Also public defenders will want to switch sides since there is MORE $$$ in defending criminals. Being a prosecutor is a trash can job financially speaking.
So, even a person with a living will must be forced to stay alive the rest of their natural life?
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