Frist Says Courts in Schiavo Case Acted Fairly

Reuters ^ | 4/5/05 | Thomas Ferraro

[Crackingham]

U.S. Senate Republican leader Bill Frist said on Tuesday that courts had acted fairly in the Terri Schiavo "right-to-die" case, differing sharply from a vow of retribution by his House of Representatives counterpart, Tom DeLay.

"I believe we have a fair and independent judiciary today," said Frist, now trying to resolve a battle with Democrats over judicial nominations that threatens to tie his chamber into knots. "I respect that."

Frist and DeLay, as the Senate and House majority leaders, had led a charge for emergency legislation calling on the federal courts to review the Schiavo case. President Bush flew back from a Texas vacation to sign the bill into law. But federal courts refused to intervene and let stand a Florida state court order to remove a feeding tube from the brain-damaged woman. Schiavo's husband had said she would not have wanted to live in her condition, but her parents fought against the tube's removal. Schiavo died last week after spending 15 years in what courts had ruled was a persistent vegetative state.

DeLay, a Texas Republican, said afterward: "We will look at an arrogant, out-of-control, unaccountable judiciary that thumbed their nose at the Congress and president when given jurisdiction to hear this case anew."

In a written statement, DeLay said: "The time will come for the men responsible for this to answer for their behavior."

Frist, asked about the furor over the case, told reporters, "I will let members (of Congress) ... speak for themselves."

But the Tennessee Republican said he believed the courts "acted in a fair and independent way."

The Schiavo case was unique, Frist said. "Our bill said, 'let's let the courts take another look,"' he said.

[Vicomte13]

"Do they care more about appealing to moderates than having any core principles?"

They have core principles.
Notice how diligently focused on certain economic sectors and taxes they are. The things on which they never waver are their core principles.
Perhaps you do not share their principles.

[Nick Danger]

The only issue the court was allowed to examine was whether or not Terri's 14th Amendment rights were being infringed.

It doesn't really say that. The court was given jurisdiction to adjudicate any claim arising under the Constitution or laws of the United States. If you wanted to, you could go fish; there has to be some federal law out there that you could bring a reasonable claim under, in addition to the Constitutional issues. You don't need to win the case in this plea. To get the feeding tube back in, all you have to do is get the judge to agree that we need a trial to figure it out. I'll bet you David Boies could have found one.

I don't see how that could be examined without considering Judge Greer's actions.

Simple. You get Congress to pass a law that says "In such a suit, the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings."

What Judge Greer? There is no such judge in these proceedings. Nothing that happened before counts. And notice that Whittemore is not questioning this; he's prepared to do it. All you had to do was bring him the case.

Think about what the Congress did there. That wording virtually guarantees a months-long, if not years-long, proceeding — during which time Terri's feeding tube is held in place by a federal court order. It took a really stupid lawyer to screw that up. But Schindler found just the lawyer to do it. And screw it up he did.

focus on a few erroneous actions by the appeals courts. Most notable of these would have been the appeal's courts acceptance of Judge Greer's failure to appoint an independent surrogate

Read Whittemore's decision. They tried that, along with a few others. No sale. They had tried all of those, dozens of times before. Greer is clean-as-a-whistle on the procedures. It's his damned findings of fact that are questionable, and here was the one shot to get the facts re-visited. And Schindler's lawyer pissed it away.

[don-o]

Is there a Tennessee Freeper that could contact Frist's office and ask for an explanation of this Reuter's article?

That be me. Note to self made for first business on Wednesday.

[ladyjane]

The insurance companies, managed care, HMO and long term care insurance industry must have pictures on every one of these turncoats. Every one of them has caved. Lots of money is at stake here.

[expatguy]

Care to explain your smarmy remarks?

[expatguy]

Do we have a right to die?

I say we don't.

[pollywog]

I cannot believe that he just said this!!!!!!!!!!! Guess he will hear from alot of us tomorrow!!!!!!!! I am getting more and more convinced by the day now, that we will see a significant THIRD PARTY come into existence soon........!

[pollywog]

Figures. This kind of thing is why I left the Republican Party and re-registered as "Decline to State

ME TOO!!! I am sick to death of gutless wonders running our government!!!!!!

[Vicomte13]

Forgive me, but I have noticed in death penalty cases, on review, that the judges themselves, at the appellate level, often start to fiddle around with the findings of fact, citing "constitutional fairness" concerns and other similarly nebulous justifications. Or they just do it without any particular compulsion on their part to much explain their justification (and, so long as the Supremes don't grant cert, those excursions work).

I have watched judges over the year make the law they want to make, when they really want to make it.

So, while everything you've said about procedure and law is true, I don't think it should have taken David Boies hopping on a plane and heading to Florida to change the outcome of this case.

Hell, in death penalty cases, appellate judges practically retry the facts when they decide that they can colorably argue inadequate representation. If they want to, they can do it.

Now, before you point out that this is not a death penalty case, remember that what made death penalty cases death penalty cases, with all of their arcane special law and procedures and limitations, is that courts decided to make up those procedures and common law. Judges decided "death is different", and made law that makes it different.

Had judges wanted to do that in the case of Terri Schiavo, they could have quite irrespective of the lawyers in the case.

Yes, you're right, the judges adhered to the pleadings and therefore ruled as they did. But you also know that when judges really want to do something, they maneuver around the pleadings and the law. That is, after all, how we got Griswold v. Connecticut and Roe v. Wade: shadows of penumbras. That's how we got to the law that says we can't execute murderers who committed their crimes as juveniles.

I note that judges always find great flexibility, it would seem, to do the evil thing. And therefore I am unpersuaded by pleas of tied judicial hands and the inability to shape or make law or penetrate beyond the pleadings in the life-or-death case of Terri Schiavo.

[Eastbound]

Thought-provoking, expat. I don't either.

[falpro]

I agree polly.

Not impressed with certain leaders. I AM impressed with Tom Delay & Rick Santorum.

Last week changed my whole perception of the Rep party. Eyes are wide open now. Wonder if it has registered with Rove & Company yet?

[Nick Danger]

I agree with that. I don't really want to sound like I'm letting Whittemore off the hook for what he did. His decision, while meticulous, is chillingly cavalier in dismissing claim after claim, when he must have known as he was writing it that a human being was going to die as a result. In fact this entire proceeding just reeks of bureaucrats following procedure, while the woman starves to death right in front of them.

Whittemore could have, for example, taken the plea filed by the Schindlers' attorneys as prima facie evidence of inadequate representation, since they totally missed the point of the proceeding. Had he looked at some of the lawyering in the State court proceeding, he would have found equally egregious "inadequate representation." That option was always there, and you're right — he didn't take it.

He could have dismissed the plea for lack of jurisdiction. The law Congress passed did not authorize a federal-level appeal of the State court cases. He could have explained that in his decision in a way that would hit the lawyer over the head with a board, to make him understand what he was supposed to do next.

Instead he kind of acts like a cat playing with a mouse; batting him around easily, while offering clever hints on how to escape. Maybe that's appropriate in a suit over money, but it's a hell of a game to play when a woman is starving to death.

All of that said, I still think the primary blame goes to the attorneys for not knowing what they were doing.

[Vicomte13]

"All of that said, I still think the primary blame goes to the attorneys for not knowing what they were doing."

You're a lawyer, and you are looking at this professionally.

I am too, but I have seen in this case something that transcends law. Here, the law was allowed to become a vehicle, sword and shield, to do evil.

It's also exposed a fault line between the "strict constructionists", who think that the abuses of the law can be tamed by just having the right legal interpretation rules, and the Natural Lawyers, of which I am finding myself, who simply hold that there is a universal moral law, and the law - especially the equitable power of the law - has got to find it and execute it when the law is being an ass.

When I look at the case, I see judge after judge after judge who took the most perverse and hard position they possibly could, knowing what the result would be, and perfectly willing to do that in service of some "higher purpose".

I grope to find that "higher purpose", and come to the conclusion that it was either: (a) some notion of the regal sanctitude of the law itself, or (b) a political turf fight, or (c) the behavior of men whose internal code has completely embraced the inexorable logic of the culture of death.

And, of course, I believe that the first two things are the obvious things that everyone sees, but that there is actually an intelligent and malevolent Devil in the world, and his game is (c).

What I saw was the judiciary frankly siding with the Devil, for death, and being positively Pharisaic about it...all during Easter Week.

This made a powerful impression.

In the course of it all I learned a fascinating fact that completely changed my outlook on a region of the world. I did not know until last week that abortion is illegal in all Latin American countries EXCEPT Cuba and Puerto Rico.

Fascinating that Latin America is morally superior to the United States and Canada.

[FairOpinion]

Frist thinks that now that Terri is dead, people will just forget the whole thing.

I think and I hope, he is wrong.

People better not forget, or people better hope they won't become inconvenient for someone, who will decide to take water and food away from them, until they are dead.

[FairOpinion]

He thinks judges have a full right to condemn innocent people to death, just because they are inconvenient to someone.

[uvular]

Can you please ping me when you get a response?

I read his speech on his website made before the sentate vote, and sounded like he didn't know alot about Terri's fight previously, but that he did seem to agree that a 2nd look was entirely valid. As he is also a doctor, it's not impossible, but find it hard he can accept what the judiciary system did to Terri and her family.

Thanks, don-o

[claudiustg]

---DeLay risks losing the House with his crusade against the judiciary.---

No way! He needs to escalate!

[supercat]

It doesn't really say that. The court was given jurisdiction to adjudicate any claim arising under the Constitution or laws of the United States. If you wanted to, you could go fish; there has to be some federal law out there that you could bring a reasonable claim under, in addition to the Constitutional issues. You don't need to win the case in this plea. To get the feeding tube back in, all you have to do is get the judge to agree that we need a trial to figure it out. I'll bet you David Boies could have found one.

Perhaps he could have, but I don't quite see on what basis. I don't think that merely asking for a de novo trial on the facts of the case would suffice for this judge, although there might be some for whom it would.

Greer is clean-as-a-whistle on the procedures.

I've read the appeals court decision that found that the appeals court didn't think Greer's decision not to appoint a surrogate affected the case, but how does that mean Greer is "clean as a whistle"? Sounds to me like the trial court deliberately failed to follow statute, regardless of whether an appeals court is willing to ignore it.

[Vicomte13]

"Frist thinks that now that Terri is dead, people will just forget the whole thing."

He's right, you know.
People will forget, most people anyway.
The 2006 election is almost 2 years away.
And between now and then, many things will happen.
All sorts of new battles will break out, and the Republicans will successfully demonize the Democrats (and vice versa, of course), such that people who have the habit of voting Republican will, for the most part, stick to habit even while thinking less of them.

But there will be those who do not forget, because their core principles, the only reason they became political in the first place, were offended beyond redemption by the behavior of Republicans in stepping aside for the murder of Terry Schiavo. In the interim, as time passes, the Senate will probably get around to passing the nuclear option. But it will not be soon.

When it happens, it will be carefully spun as the Republicans reaching back out to pro-lifers.

And at that point, if we care about protecting life, we will have to take their hands and vote for them, because they will put the judges on the bench that MAY eventually change the abortion laws and other life-destroying practices.

But there will be some who were so heartbroken by this that they leave off politics and even voting, and never return. And if that happens, the Republicans are sunk and have no-one to blame for themselves.

Right now is the time for them to shore up their base by passing the Nuclear Option. But they are not going to do it.

Why?
Because many Republicans are not pro-life, not really. They give it lip service.

[claudiustg]

---No, Illogical is voting for conservative republicans, and getting the same result as with Demoncrats.---

NO NEW ANTI-GUN LEGISLATION! Has everyone gone mad?