Judicial aftershocks from the Schiavo case

Christian Science ^ | April 4, 2005 | Warren Ritchey

[tessalu]

Judicial aftershocks from the Schiavo case

Perceptions of how the courts handled the case could have ramifications for Bush's judicial nominees.

WASHINGTON – In the end, as Terri Schiavo clung to life in her Florida hospice after nearly two weeks without food or water, 12 years of legal battles came down to one final appeal. In a 15-page emergency brief, lawyers asked the US Supreme Court to vindicate Ms. Schiavo's constitutional right to life. The high court's answer came Wednesday around 11 p.m. Application denied. Ten hours later, Schiavo passed away.

In the emotional moments after the announcement, pro-life and disability-rights supporters lashed out at a judicial system that they said was being run by activist judges who favor death over life.

House majority leader Tom DeLay went one step further. "The time will come for the men responsible for this to answer for their behavior," he said Thursday. He called upon the Judiciary Committee to launch an investigation of what he says is "an arrogant, out-of-control, unaccountable judiciary that thumbed their nose at Congress and the president." But was the Schiavo case influenced by so-called "activist" judges who allowed their ideological convictions and policy preferences to overshadow the law and influence the outcome of the case? Legal analysts are divided on the issue.

Perceptions of how the Schiavo case was handled are important - for one, because they could play a key role in looming battles in the US Senate over President Bush's judicial nominees, and a potential Supreme Court vacancy. Those battles may begin as early as this week, with the conservative camp somewhat split over the propriety of congressional intervention in the Schiavo case.

Religious conservatives are angry and primed for a fight. But many other conservatives were alarmed at what they saw as federal intervention into a private family matter that has historically been entrusted to state courts and state judges.

Many legal analysts say that for the most part, judges performed their duties as neutral, dispassionate arbiters of the law.

"An enormous spotlight and an enormous amount of pressure have been placed upon the judiciary, and yet they have behaved in a lawlike fashion," says Charles Baron, a Boston College law professor and expert in right-to-die issues. "These judges, if you look at their record, are not people who have records as being right-to-diers or left-wing activist judges. These are people who wrote opinions that track the law."

But others say that some judges appear to have avoided confronting serious, substantive legal issues by relying on formalistic devotion to legal process.

"The judiciary, both state and federal, have failed miserably in the Schiavo case," says Virginia Armstrong, national chairman of the Eagle Forum's Court Watch. "It is one of the poorest performances we have ever seen in American justice."

Supporters of the judiciary's performance in the Schiavo case note the large number of state and federal judges involved. They say familiar conservative-liberal distinctions do not seem to have played a major role in the outcome, particularly at the 11th US Circuit Court of Appeals, where seven of the 12 judges were appointed by Republican presidents.

"It is not like the judges appointed by one kind of president are voting one way and judges appointed by a different kind of president are voting a different way," says Vikram Amar, a constitutional law professor at San Francisco's Hastings College of the Law.

Perhaps the biggest irony of the case was the extent to which conservative, pro-life lawyers acting on behalf of Schiavo's parents sought to persuade federal judges and justices to embrace an expansive constitutional right to life that would mandate affirmative steps to protect Schiavo's life. According to some analysts, it would have necessitated the same kind of liberal reading of the Constitution that upheld a right to abortion in Roe v. Wade - a constitutional holding denounced by conservatives as the epitome of judicial activism.

In a 1990 right-to-die case, Chief Justice William Rehnquist wrote for the five-justice majority: "It cannot be disputed that the Due Process Clause [of the Constitution's 14th Amendment] protects an interest in life as well as an interest in refusing life-sustaining medical treatment."

But while the high court has established a constitutional right to refuse medical treatment and a right to abortion, it has never spelled out the contours of a constitutional right to life. The Schiavo case was seen by some as a possible battleground to do just that, perhaps to the detriment of abortion rights. But the courts refused to get involved.

"What is driving this case is not the constitutionality of the federal [Schiavo] statute, or the intrusion on federalism," says John Eastman, a constitutional law professor at Chapman University School of Law in Orange, Calif. "The underlying connection with abortion is driving this."

But Professor Eastman says a pro-life ruling in the federal courts would not amount to a conservative version of judicial activism. Rather, he says a right-to-die, pro-abortion approach to constitutional law has inverted the principles of the Founding Fathers."It turns what is supposed to be a government devoted to protecting rights to life, liberty, and the pursuit of happiness [into a government that enforces] a court-crafted right to die," he says.

But even if the courts declined to read a broad, substantive right to life into the Constitution, some legal analysts say the Schiavo case was strong enough to justify more judicial review than was received. One issue: whether the Florida court acted in violation of federal due process rights.

Florida law requires that Schiavo's wish to have her feeding tube disconnected be proved by "clear and convincing" evidence. Lawyers for Schiavo's parents argued that hearsay testimony of husband Michael Schiavo and others about statements that they say Ms. Schiavo made in the late 1980s does not rise to the evidentiary level necessary to pass constitutional muster. They also argued that a federal judge in Tampa had a sworn duty under the new federal law passed by Congress to conduct a new and full trial to examine for himself whether the evidence was clear and convincing.

Instead, US District Judge James Whittemore framed the entire federal case as an application for a temporary restraining order to reinsert the feeding tube. He declined to order the tube reinserted after ruling that lawyers for Schiavo's parents had failed to raise any substantial claims.

Some analysts say that in bypassing the letter of the Schiavo law, Judge Whittemore's judicial inaction became a form of judicial activism.

"What we usually hear of judicial activism is a judge finding some right in the Constitution that isn't there. In this case, it was a statute that clearly was there but was being ignored," says Wendy Long, a former law clerk to Supreme Court Justice Clarence Thomas and counsel to the Judicial Confirmation Network, which supports Mr. Bush's judicial nominees. "The court, in a sense, was making a policy decision that it didn't want to look at the issue that Congress and the president wanted it to look at."

Others praise Whittemore's approach. "If one was looking for a model of a district court judge to have been given this assignment, I think we found one," says Douglas Kmiec, a constitutional law professor at Pepperdine University School of Law in Malibu, Calif. "He understood that it was both an emotionally charged issue but also one that arose in the context of a preexisting constitutional structure and a preexisting body of law

.

Ten hours later, Schiavo passed away.

In the emotional moments after the announcement, pro-life and disability-rights supporters lashed out at a judicial system that they said was being run by activist judges who favor death over life.

House majority leader Tom DeLay went one step further. "The time will come for the men responsible for this to answer for their behavior," he said Thursday. He called upon the Judiciary Committee to launch an investigation of what he says is "an arrogant, out-of-control, unaccountable judiciary that thumbed their nose at Congress and the president."

But was the Schiavo case influenced by so-called "activist" judges who allowed their ideological convictions and policy preferences to overshadow the law and influence the outcome of the case? Legal analysts are divided on the issue.

Perceptions of how the Schiavo case was handled are important - for one, because they could play a key role in looming battles in the US Senate over President Bush's judicial nominees, and a potential Supreme Court vacancy. Those battles may begin as early as this week, with the conservative camp somewhat split over the propriety of congressional intervention in the Schiavo case.

Religious conservatives are angry and primed for a fight. But many other conservatives were alarmed at what they saw as federal intervention into a private family matter that has historically been entrusted to state courts and state judges.

Many legal analysts say that for the most part, judges performed their duties as neutral, dispassionate arbiters of the law.

"An enormous spotlight and an enormous amount of pressure have been placed upon the judiciary, and yet they have behaved in a lawlike fashion," says Charles Baron, a Boston College law professor and expert in right-to-die issues. "These judges, if you look at their record, are not people who have records as being right-to-diers or left-wing activist judges. These are people who wrote opinions that track the law."

But others say that some judges appear to have avoided confronting serious, substantive legal issues by relying on formalistic devotion to legal process.

"The judiciary, both state and federal, have failed miserably in the Schiavo case," says Virginia Armstrong, national chairman of the Eagle Forum's Court Watch. "It is one of the poorest performances we have ever seen in American justice."

Supporters of the judiciary's performance in the Schiavo case note the large number of state and federal judges involved. They say familiar conservative-liberal distinctions do not seem to have played a major role in the outcome, particularly at the 11th US Circuit Court of Appeals, where seven of the 12 judges were appointed by Republican presidents.

"It is not like the judges appointed by one kind of president are voting one way and judges appointed by a different kind of president are voting a different way," says Vikram Amar, a constitutional law professor at San Francisco's Hastings College of the Law.

Perhaps the biggest irony of the case was the extent to which conservative, pro-life lawyers acting on behalf of Schiavo's parents sought to persuade federal judges and justices to embrace an expansive constitutional right to life that would mandate affirmative steps to protect Schiavo's life. According to some analysts, it would have necessitated the same kind of liberal reading of the Constitution that upheld a right to abortion in Roe v. Wade - a constitutional holding denounced by conservatives as the epitome of judicial activism.

In a 1990 right-to-die case, Chief Justice William Rehnquist wrote for the five-justice majority: "It cannot be disputed that the Due Process Clause [of the Constitution's 14th Amendment] protects an interest in life as well as an interest in refusing life-sustaining medical treatment."

But while the high court has established a constitutional right to refuse medical treatment and a right to abortion, it has never spelled out the contours of a constitutional right to life. The Schiavo case was seen by some as a possible battleground to do just that, perhaps to the detriment of abortion rights. But the courts refused to get involved.

"What is driving this case is not the constitutionality of the federal [Schiavo] statute, or the intrusion on federalism," says John Eastman, a constitutional law professor at Chapman University School of Law in Orange, Calif. "The underlying connection with abortion is driving this."

But Professor Eastman says a pro-life ruling in the federal courts would not amount to a conservative version of judicial activism. Rather, he says a right-to-die, pro-abortion approach to constitutional law has inverted the principles of the Founding Fathers."It turns what is supposed to be a government devoted to protecting rights to life, liberty, and the pursuit of happiness [into a government that enforces] a court-crafted right to die," he says.

But even if the courts declined to read a broad, substantive right to life into the Constitution, some legal analysts say the Schiavo case was strong enough to justify more judicial review than was received. One issue: whether the Florida court acted in violation of federal due process rights.

Florida law requires that Schiavo's wish to have her feeding tube disconnected be proved by "clear and convincing" evidence. Lawyers for Schiavo's parents argued that hearsay testimony of husband Michael Schiavo and others about statements that they say Ms. Schiavo made in the late 1980s does not rise to the evidentiary level necessary to pass constitutional muster. They also argued that a federal judge in Tampa had a sworn duty under the new federal law passed by Congress to conduct a new and full trial to examine for himself whether the evidence was clear and convincing.

Instead, US District Judge James Whittemore framed the entire federal case as an application for a temporary restraining order to reinsert the feeding tube. He declined to order the tube reinserted after ruling that lawyers for Schiavo's parents had failed to raise any substantial claims.

Some analysts say that in bypassing the letter of the Schiavo law, Judge Whittemore's judicial inaction became a form of judicial activism.

"What we usually hear of judicial activism is a judge finding some right in the Constitution that isn't there. In this case, it was a statute that clearly was there but was being ignored," says Wendy Long, a former law clerk to Supreme Court Justice Clarence Thomas and counsel to the Judicial Confirmation Network, which supports Mr. Bush's judicial nominees. "The court, in a sense, was making a policy decision that it didn't want to look at the issue that Congress and the president wanted it to look at."

Others praise Whittemore's approach. "If one was looking for a model of a district court judge to have been given this assignment, I think we found one," says Douglas Kmiec, a constitutional law professor at Pepperdine University School of Law in Malibu, Calif. "He understood that it was both an emotionally charged issue but also one that arose in the context of a preexisting constitutional structure and a preexisting body of law."

[tessalu]

Should an adultereous spouse who has lived with another mate for ten years, be allowed total guardianship over one that they are still legally married to, when they have a clear conflict of interest, and no longer have the best interest of the disabled spouse at heart?

[D Rider]

Well then, I guess it is a good thing we have Arlen Specter to lead the charge.</sarcasm>

[Diogenesis]

"Even a convicted murderer gets their last meal (and a drink of water) on the same day they die."-Paloma_55

Worth repeating.

---

Pinellas county, Florida subhuman murderer uncertified Judgenfuhrer Greer:
"First, I want demand the Judical right to torture and exterminate by dehydration.
Second, there are some people who are now in Florida who were just born victims.
Third, we in Florida are exempt from ALL rules and law.
I did not even take the oath of office.
The US Constitution - I ignored it.
18 USC Section 1505 - I ignored it.
Title 2 of the US code - I ignored it.
Florida Statute 765.309 which prevents mercy killing and assisted suicide - I ignored it.
Florida Statute 744.3215 which requires that incapacitated people cannot be deprived of food and water - I ignored it.
Florida Statute 765.404, which says that clear and convincing evidence of the ward's intent for medical treatment must be established - I ignored it..
I conspired to murder Terri to celebrate Holocaust Remembrance Month.
So what are you --and the gonadless pussies in Congress-- dare gonna do about it?"

---

Judge Greer's crimes to Murder Terri

---

Law conveniently changed by Hospice where Terri was Judicially murdered

---

[ClancyJ]

Of course this mere point was totally ignored by every court.

As was the law calling for a re-review of the case with new eyes, as was a federal subpoena.

Also unmentioned is - does the state legislature have the right to outsource law making to a designated panel which is not elected? Since when does any legislature give others the ability to make laws without oversight?

[anniegetyourgun]

Therein is the avoidance of serious legal questions involving the protection of life, liberty, and the pursuit of happiness for the "dispassionate" fixation on legalese.

BTW, John Eastman for SCOTUS!

[Cicero]

Some Freepers argued on the Terri threads that excessive attention to her case was detracting from the battle to appoint better judges. I don't think so. This is the second article I've seen in the liberal MSM admitting that Terri's death is bad for the pro-death camp. It will give Republicans who nominate pro-life judges an extra argument that people can easily understand.

Those who want a "right to die" were also mistaken in thinking that killing Terri would help their cause. Just the opposite, as the NY Times argued earlier. Killing a woman by depriving her of food and water when there was good cause to doubt whether that was what she wished weakens the position of those who think that those who freely choose to die should be helped along by doctors. If they can do this to Terri than can do it to anybody, not just those who really choose to die. The result is that hospitals will have to be a lot more careful about killing people, even those who signed living wills to that effect.

Most significantly, this will strengthen the push to nominate not just broadly conservative judges but specificially pro-life judges who can be trusted not to commit murder from the bench.

[GeekDejure]

Should an adultereous spouse who has lived with another mate for ten years, be allowed total guardianship over one that they are still legally married to, when they have a clear conflict of interest, and no longer have the best interest of the disabled spouse at heart?


=======

Jeepers creepers... you asked such an amazingly difficult question... surely we will need to seek advice from the World Court! Don't believe it? Just ask Ruthie Bastard Ginzbergerstein !!! ;-))

[anniegetyourgun]

Hey, I resemble that comment.....

[the invisib1e hand]

Should an adultereous spouse who has lived with another mate for ten years, be allowed total guardianship over one that they are still legally married to, when they have a clear conflict of interest, and no longer have the best interest of the disabled spouse at heart?

Not in a just world.

[the invisib1e hand]

correction to the tag line.

[mommadooo3]

I can remember growing up, 'cutting my teeth'(in school/at home) on the premise that THE ULTIMATE law of the land was the US Constitution. And that, ANY law after that, had to be in line with what the Constitution stated.

Maybe I should sue my parents/family for not allowing me the 'priviledge' of vacationing at an indoctrination center or two.

[AlbionGirl]

I hope you're right.

[Paladin2]

The guardianship issue is clearly where this case went wrong - years ago. How this could not have been reopened and redecided is beyond my comprehension.

[FairOpinion]

"an arrogant, out-of-control, unaccountable judiciary that thumbed their nose at Congress and the president."


This is exactly what happened, and if we let them get away with it, we don't need a President and a US Congress, just the Imperial Judiciary.

[GeekDejure]

This is exactly what happened, and if we let them get away with it,
we don't need a President and a US Congress, just the Imperial
Judiciary.

=======

Of course we need a president in control. Or are you also
suggesting that we scrap the Easter Egg Roll ??? ;-))

.

[MizSterious]

"Some Freepers argued on the Terri threads that excessive attention to her case was detracting from the battle to appoint better judges. I don't think so."

You have listed a number of good arguments, but I'd like to add that most of those who argued this also thought she should be killed allowed to die.

[FairOpinion]

I don't think people realize the magnitude of what happened: The Gov of Florida, the US Congress and the President of the US stood by helplessly, because anything they wanted, was overruled by judges, based on the ruling of a pipsqueak judge named Greer. Greer, a probate court judge -- the most powerful person in the US. If this doesn't scare people, I don't know what will, but people don't care, because as long as it's happening to someone else, they don't care.

[GeekDejure]

Somehow it gives me the creeps when I consider that all the
letters in "Judge Greer" are in my screen name "GeekDejure" !!!

.

HELP !!!

.

[EGPWS]

"The time will come for the men responsible for this to answer for their behavior,"

A boisterous yet well founded statement.

Kudos Tom.

[silverleaf]

the courts declined to read a broad, substantive right to life into the Constitution

Missing from this article is the role that "medical experts" played in this case, the evolving role that "medical experts" have played in the court's definitions and resulting decisions to date, and questions about the role "medical experts" may continue to play (unchecked and operating in a VERY gray area).......in defining (and limiting) "life" that is worthy of Constitutional protection.