Posted on 03/26/2005 1:34:45 AM PST by Destro
March 25, 2005
COMMENTARY
Why Schiavo's Parents Didn't Have a Case
By Andrew Cohen, Andrew Cohen is CBS News' legal analyst.
Terri Schiavo's parents did not lose their federal case because they didn't try hard enough. They didn't lose their case because everyone conspired against them. They didn't lose it because Congress ticked off the judiciary over the weekend with its over-the-top custom-made legislation. They didn't lose it for lack of money or because they failed to file a court paper on time. They didn't lose it because the laws are unfair or because bureaucrats sometimes can be arbitrary and capricious.
The Schindlers lost their case and their cause — and soon probably their daughter — because in the end they were making claims the legal system has never been able or willing to recognize. They lost because they long ago ran out of good arguments to make — those arguments having been reasonably rejected by state judge after judge — and thus were left with only lame ones. And they lost because in every case someone has to win and someone has to lose. That's the way it works in our system of government. It isn't pretty, and sometimes it's unfair. But it's reality.
Especially during this final round of review, orchestrated by Congress' extraordinary attempt at a "do-over" for the couple, Schiavo's parents lost appeal after appeal specifically because they were asking the federal courts to declare that their constitutional rights had been violated by the Florida state court rulings in the case. They were arguing, in other words, thanks in part to their custom-made congressional legislation, that the federal Constitution gave them the right as losers in state court to get a new, full-blown trial in federal court.
(Excerpt) Read more at latimes.com ...
How can you say for sure that Terri's rights and wishes have been protected?
We have the highly suspcious hearsay of her husband and that's IT.
Are you saying it isn't in the states best interest to investigate this fully to make sure that the wishes of Ms. Schiavo really are being fulfilled and that her rights as a citizen of the state of Florida have been fully protected and represented?
(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
***And they lost because in every case someone has to win and someone has to lose. ***
But someone doesn't always have to DIE!
The court ruled according to the State Law - something you are too dense to figure out.
So are you trying to say that the courts rulings are infallable and above questioning or review?
Not anymore, now they tell the cops what to do. It's only a matter of time before a judge declares war...
I understand this line of argument, I do find it ironic that the left which has always championed making the courts a "free for all" is now arguing against it. Seems to me that there opposition isn't against the court becoming a "free for all", as much as they liked the result of the state court.
I do think the federal interventions so far are potentially problematic, note that I say "potentially", because I think there is an argument to be made on the denial of due process which I do think is reviewable in federal court.
However, the real solution to this is in the Florida executive and legislative branch, they do have the authority to put a stop to this, and they should. I don't believe anyone should be withheld nourishment, absent clear evidence (in writing) of the wish to refuse such, as long as there is someone willing to bear the burden of providing them. I do not believe mere rights of guardianship should encompass the power to deny the ward such, and I do not believe the courts should find evidence of the wish to refuse unless it is in writing and witnessed. All of this can be written into law, and should.
You tell me what part of the Greer decision violated the Florida Law? Dare ya.
(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
It is right and proper for the federal government to intervene if someone has been deprived of so basic a right as hydration. The "Federalism" argument has always been a straw man here.
The court's decision was reviewed. The court's ruling was upheld every time. That was the basis of the Congressional one time only law - to get the case reviewed in Federal Court - which upheld the decision.
(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
"A) under Florida law the husband has guardianship"
The lawyers could wasily argue that since Mr. Schiavo has been living in an adluterous relationship and fathering children out of wedlock he has violated the Florida laws concerning marriage and adultery and therefore has relinquished his right to claim guardianship.
Why they haven't taken this angle is beyond me.
You do know that the Florida Legislature passed the law that allowed Greer to make his decision? They wrote the laws that gave guardianship to the next of kin and allows for the removial of life support (and yes under Florida statue a feeding tube is a form of life support).
I've seen the light: The oracle of True Conservative Principles is a FreeRepublic gadfly named after a G.I. Joe action figure.
Florida law bars anyone with a conflict of interest from being guardian. Mr. Schiavo has an extreme conflict of interest. Can you imagine anyone claiming an exspouse was a disinterested party, which Schiavo is de facto, if not in law.
Guardians are also supposed to file care plans at least yearly, which Schiavo hasn't done for 6 years. Why is he exempt from obligations that apply to every other guardian in the state of Florida?
Could you show me the Florida statute that says a feeding tube is life support? Because Felos was using this case as a test case to change Florida law.
(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
"The court's decision was reviewed."
And every legal "expert" I've heard on this case has also said that judges do NOT like to overturn their fellow jurists decisions.
So if we have judges who are loathe to go against a fellow judges decision for fear of criticism or whatever...how do we know she got a fair shake in these reviews of the case.
Elected judges are also very timid when it comes to overturning controversial well publicized ruling for fear of their opponent using it against them in the next election.
Because for the judge to make such a ruling would be playing at judicial activisim. There is no provision in the law that would disqualify the husband unles sthe state spells it out.
If you want the status of spouse to be conditoonal like for example the spouse has to remain chaste/celibate the entire time their other spouse is in such a state to maintain their "next of kin" status then the legislature has to pass it as an addendum to the law.
Of course it would not apply to Michael Schaivo (ex post facto) and I don't see any legislature passing this Puritan law either.
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