Posted on 03/25/2005 5:58:31 AM PST by Zivasmate
March 25, 2005 Myth of 19 Judges and Ignoring the Will of Congress By Thomas Sowell
Liberals have repeatedly used the talking point of how many judges have heard the case of Terri Schiavo. But that is as misleading as most of the rest of what they and the mainstream media have been saying.
When a case goes up to a higher court on appeal, the issue before the appellate court is not whether they agree with the merits of the decision of the lower court. In a criminal case, for example, the issue before the appellate court is not whether the defendant was guilty or innocent, but whether the trial was conducted properly.
In other words, the defendant is not supposed to be tried again at the appellate level. So, no matter how many appellate judges rule one way or the other, that tells you absolutely nothing about the fundamental question of guilt or innocence.
Similar principles apply in a civil case, such as that of Terri Schiavo. Liberals can count all the judges they want, but that does not mean that all these judges agreed with the merits of the original court's decision. It means that they found no basis for saying that the original court's decision was illegal.
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.
The liberal line, both in politics and in the media, is that Congress somehow behaved unconstitutionally. All federal courts except the Supreme Court are created by Congress. The Constitution itself gives Congress the authority to define or restrict the jurisdictions of federal courts, including the Supreme Court.
Is the Constitution unconstitutional?
The lessons of this tragic episode are as momentous as they are painful, if only because we should never want to see such a miscarriage of justice again. The issue is not only whether Terri Schiavo should live or die, important as that is.
Another important issue is whether self-government in this country will live or die. Judges who ignore the laws passed by elected representatives are slowly but surely replacing democracy with judicial rule. Meanwhile, the media treat judges as sacrosanct and any criticism of them as almost blasphemy.
All this adds more urgency to the need to put judges on the courts who will follow the written law, not their own notions. We can only hope that the Senate Republicans have the guts to do that.
Copyright 2005 Creators Syndicate
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This week in Political Diary, from the Wall Street Journal: Randall Terry brings a questionable odor to the Schiavo crusade; a memo is gospel when it says what the media believes; Trumka has plans for Big Labor's nest egg; and Bob Casey Jr. passes the litmus test. Click here to subscribe. Read More...
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Impeach. Remove. Lather. Rinse. Repeat. Reduce judicial terms to no more than 5 years.
Thanks for posting this. It makes a very important point, that there is no way anyone could have looked at the Schiavo case 'de novo' in a few days.
How do expect to get new judges on the bench? Most FR posters have been stating "I'll never give another cent to the Republican Party" and "I will never vote Republican again".
Locally we had a judge who annnounced that she would not retire unless Granholm or another democrat was elected governor. Care to guess why?
Jake
Judge, am I right in seven?
That's IT!
A woman who has committed no crime, except if you consider brain damage to be a crime. And if "brain damage" is a crime, I know alot of liberal judges who should be in prison right now.
No, it's just "dynamic".
Characterized by continuous change, activity, or progress: a dynamic market.
Feh.
Now, now, reasonuble Thomas Sowell is talking about the last 5 days.
Actually, if Florida is similar to my state, Greer is NOT the judge Freepers should be raving at. Greer is an appellate judge, and just reviewed the actual trial court's decision. As Sowell points out, appellate courts aren't there to substitute their feelings for the trial court - they just review to ensure the law was properly followed at the trial level, not substitute their own judgement.
Judge Greer, George Felos, Michael Schiavo, Mary Laybak and Rep. Gus Bilikaris are all coconspirators in a Medicaid Fraud scheme that has defrauded the tax payers of $15+ million . Terri Schiavo's shell is among the 188 other poor souls who are evidence in the case currently being PROSECUTED against Suncoast Hospice by the Dept. of Health and Human Services.
Medicaid dollars may not be used to end a life. Multiple violations of federal Law have been violated in the rush to destroy the evidence.
I am trying very hard to understand what happened here. It seems to me that Whittemore did not defy the letter of the law, but rather chose to ignore the desire of Congress that he take a fresh look at the 'facts' of the case. The law, as it was written, authorized a fresh look but did not require it. Anyone know if this interpretation is correct?
Perhaps I missed it, but what happened to the issue of the Congressional subpoena? Terri was called as a witness before Congress, wasn't she? And Greer essentially flipped them to bird and had the tube pulled anyway. Any action taken against him on that, or did the Repub "leaders" just stand there like deer in the headlights?
For the first time since our nations birth, hearsay evidence is being allowed in a court of law. And it has been upheld all the way up thru the USSC (Upheld in default, for not hearing and overruling it).
We have a sitting judge on our board who is going to give us his leagal take on it. Using what he says, I will then write an article for Christian-news-in-maine.com
Jake
The comment that Terri allegedly made to HINO was that she would not want to be kept alive "artificially". Until Oct. 1, 1999 a feeding tube was not considerd "artificial". Rep. Gus Bilikaris, a member of the Board of Suncoast Hospice and campaign contributor to Judge Greer changed the law H.B. 2131 to add "including artificial sustinence and hydration which sustains and restores a spontanious vital function". After which Felos/Schiavo petitioned the court (Greer) to remove the tube.
That's pretty much the gist of it.
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