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What would you have suggested?

Leave Greer and the entire state court case out of it. Don't even mention it.

The law stated that the US District Court shall have jurisdiction to hear, determine, and render judgement on a suit or claim by or on behalf of Theresa Marie Schiavo for the alleged violation of any right of Theresa Marie Schiavo under the Constitution or laws of the United States relating to the withholding or withdrawal of foods, fluids, or medical treatment necessary to sustain life.

As Whittemore himself noted in his decision, "The plain language of the Act establishes jurisdiction in this court to determine de novo 'any claim of a violation of any right of Theresa Schiavo within the scope of this Act.'"

In other words, "Bring me a brand new case premised on a violation of the Constitution of the United States or the federal law(s) of your choice."

But that isn't what Plaintiff filed. Here's Whittemore again:

This court has carefully considered the Act and is mindful of Congress' intent that Plaintiffs have an opportunity to litigate any deprivation of Theresa Schiavo's federal rights. The court is likewise mindful of Congress' directive that a de novo determination be made "not withstanding any prior State court determination." In resolving Plaintiff's Motion for Temporary Restraining Order, however, the court is limited to a consideration of the constitutional and statutory deprivations alleged by Plaintiff in their Complaint and motion. Because Plaintiffs urge due process violations are premised primarily on the procedures followed and orders entered by Judge Greer... their Complaint necessarily requires a consideration of the procedural history of the state court case to determine whether there is a showing of any due process violations.

The Congress wanted there to be a new trial on the facts. The judge was prepared to give it to them. But that isn't what the Plaintiffs asked for. Instead they treated it as a vanilla appeal, alleging procedural errors on the part of Greer and the state courts. The Schindlers' stupid lawyers, not the judge, dragged the whole state court case into what should have been a de novo determination on whether Terri Schiavo's federal rights had been violated.

A federal judge need not accept the substituted judgement of a family member to determine the incapacitated person's wishes concerning removal of life-sustaining food and fluids. In Cruzan, the U.S. Supreme Court held that "The Due Process Clause does not require a State to accept the 'substituted judgment' of close family members in the absence of substantial proof that their views reflect the patient's." One may therefore argue that the Due Process Clause does not require a federal judge to accept the substituted judgement. There being conflicting testimony concerning those wishes, and hence reasonable doubt concerning what those wishes might have been, let's have a trial and determine her wishes de novo by "clear and convincing evidence." And in the meantime, please put the tube back in so this doesn't all become moot.

There is probably another fountain of reasonable doubt in the conflicting testimony of the various doctors who assessed Terri Schiavo's condition. Cruzan is silent on what standard of evidence is appropriate there, but if we assume that it too is "clear and convincing," there's an opportunity to throw affidavits at the federal judge to convince him that there are at least some doctors out there who say the diagnosis of PVS is flawed, or that we'd really need an MRI or PET scan to be sure, and we don't have either. There's another reason to have a months-long trial, and some medical tests to boot, and in the meantime please put the tube back in so this doesn't all become moot.

The trick to getting the tube re-inserted was to convince the judge that there was a reasonable possibility that Plaintiff's claims might succeed on their merits. So you claim we don't know Terri's wishes, and we don't know whether she is really in a permanent vegetative state, and you file whatever the hell evidence you have to support those things. Since the judge is prohibited by the Act from taking the state court proceedings into account, he has to either hold the world's fastest trial, or grant the injunction and schedule a trial on the claims.

Instead, the Plaintiff's lawyers handed him a bunch of muck about procedural errors by Greer, who had been reviewed six ways from Sunday already and found to be procedurally error-free.

The Schindlers' stupid lawyers, not the judge, dragged the whole state court case into what should have been a de novo determination on whether Terri Schiavo's federal rights had been violated.

Indeed. The problem is that statute didn't authorize the court to examine the issues of whether Terri in fact made the statements attributed to her with the intention that she be fatally starved and dehydrated, and whether Terri was, in fact, PVS. The only issue the court was allowed to examine was whether or not Terri's 14th Amendment rights were being infringed. I don't see how that could be examined without considering Judge Greer's actions.

To my mind, the only approach I could see that might have worked would have been to 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 for Terri when he was required to do so. Florida statutes clearly required that such a surrogate be appointed in this case and did not allow a trial court judge to play the role. That an appeals court judge didn't think a surrogate would have added anything to the procedings does not excuse the surrogate's absense. I would have argued that Whittmore should disregard the appeals court's acceptance of this action and regard it as a willful violation of due process by Judge Greer indicating probable bias on his part. As a remedy, I would seek a de novo trial on the facts of the case with a new judge.

How would that be as an approach?