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 ...
If the will of the people, as expressed by Congress, is that Terri Schiavo should not be starved to death, aren't they going against the grain by upholding Greer's rulings?
"aren't they going against the grain by upholding Greer's rulings?"
No. They are doing the old "I'll scratch your back" routine...judges are loathe to overturn their fellow jurists rulings...and none of them that have to stand for election in the next two years are going to be "the one" who overturns any of Greers decisions. IMHO, They are placing their own political security over the life of one person and doing what's right.
Thatn's not going against the grain...that's cowardice.
That's ridiculous. Rulings and court cases are overturned every day.
and none of them that have to stand for election in the next two years are going to be "the one" who overturns any of Greers decisions. IMHO, They are placing their own political security over the life of one person and doing what's right.
The Federal judges never have to stand for election. They are appointed for life, and don't have to worry about political security, yet they are still upholding Greer's rulings.
In any case, by your logic, the ones who have to stand for election should be overturning Greer's rulings, because on the whole people don't seem to think Terri Schiavo should be starved to death, and they might vote against the judges who supported that.
So far your case doesn't hold water.
bill of attainder
n. pl. bills of attainder
Passing a law protecting Terri Schiavo is NOT a bill of attainder. A Bill of Attainder applies ONLY to CRIMINAL acts, not civil judgments.
If anything Judge Greer's prohibition against using natural means of feeding is the judicial equivalent of a Bill of Attainder pronouncing her guilty of some kind of capital crime.
"That's ridiculous. Rulings and court cases are overturned every day."
They why praytell aren't they doing it in this case where there is more than enough black letter law for them to hand their hat on?
" They are appointed for life, and don't have to worry about political security, yet they are still upholding Greer's rulings."
The Federal ones yes. The other layers of appeals courts where this is being fought? No. They are elected.
As for the Federal Judges, most of them in that area are Clintoon appointees anyway.
"In any case, by your logic, the ones who have to stand for election should be overturning Greer's rulings, because on the whole people don't seem to think Terri Schiavo should be starved to death, and they might vote against the judges who supported that."
No because where Greer is on the bench is still a very heavily Democratic area of Florida. He is a RAT as well. Schiavo's mouthpiece has contributed to his election fund. For this guy to follow the law and rule for Terri's parents would be political suicide.
Spin it how you want Amelia. The fact of the matter remains that the other judges will not overturn one of their fellow jurists decisions because they do NOT want to be targeted by the people that might vote for them. Their fear of being voted out of office in their largely DemocRATic areas where this is going in causes them not to be brave enough to set new prescedent.
It's the civil equivalent of a Bill of Attainder. As I said before. It may not be unconstitutional under the Bill of Attainder clause, but it certainly is under the Equal Protection Clause. There cannot be a unique jurisdictional for Terri Schaivo alone. That blatently violates the Equal Protection Clause.
(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".)
Jude, there is no such thing as "civil equivalent" of a Bill of Attainder. What kind of silly judical fiction are you attempting to write? Are they teaching you that crap in law school?
As far as "equal protection" goes, the constitution is not violated by specifically giving one person rights that another person has not specifically been given, but only if one person is DENIED rights freely given to entire groups of other people. All congress attempted to do was to give Terri a right that others could also petition congress for pursuant to Amendment III.
As far as equal protection is concerned, "statutes create many classifications which do not deny equal protection; it is only 'invidious discrimination' which offends the Constitution." Ferguson v. Skrupa, 372 U.S. 726, 732 (1963); Williamson v. Lee Optical Co., 348 U.S. 483, 489 (1955).
What is invidious about trying to save Terri Schiavo's life from the clutches of judicial tyranny?
I take it you have not taken your Con-Law final yet?
Nor have we covered Amend. XIV yet. Haven't gotten out of the Articles and Amend XI. Amend XIV starts tomorrow.
Sorry, make that "Bill of Rights, Article the third, Amendment I."
ContraryMary Marry wrote: "It's unfortunate that liberals are espousing traditional conservatism to bash conservatives. But the article raises effective arguments." - You bet it stings! And wait till they throw the culture of life back at us - culture of life? Why cut Medicaid health care (Terri was using)? Why make bankruptcy harder (most cases are due to medial bills), My make malpractice cases harder (Terri would probably not have won her case under new Repup rules), you are against abortion but make no provisions for infant health care, etc. This has opened up a socialist nanny state nightmare I can not see Social Conservatives able to fight off unless they one up the Dems.
Wait for the next proposal - national health insurance from conception till the age of 18 - How will Social Conservatives rise against that proposal? Pro fetus - anti-child care?
Florida statue states that life support includes feeding tune - I can link if you so want.
If that is the case then the Schiavos could petition Congress or the Executive branch for a redress of greivances and either Congress or the Executive Branch would have the power to grant such a redress.
So pursuant to the first amendment Bush could order the tube reinserted soley on the basis that the first amendment gives him that power.
Either there isn't as much as you think, or the Schindler lawyers are presenting it ineffectively.
Why didn't at least Thomas & Scalia dissent when the U.S.S.C. refused to hear the case? Do you think it was due to political expediency? Are they friends of Greer?
As for the Federal Judges, most of them in that area are Clintoon appointees anyway.
Yes. The one Federal judge in Atlanta who thought the feeding tube should be reinserted was a Clinton appointee. One of the ones who upheld Greer was appointed by Bush I.
No because where Greer is on the bench is still a very heavily Democratic area of Florida.
The state appeals judges are not all from heavily Democratic areas.
Spin it how you want Amelia.
You're the one who appears to be continuing to assert that even Federal judges who don't have to stand for election are supporting this due to political expediency.
Make that the Schindlers.
Each party is more than guilty of it.
Regardless of whether you think PVS is or is not a valid diagnosis, that is the standard Florida law uses in cases like Terri's for better or worse. Thus, it is far from being irrelevant.
If you don't like it, now is the time to start lobbying elected officials to change it.
No one has been denied equal protection, and Congress has acted within its authority.
Congress can pass a bill that affects the judiciary. If you know that much, then you know all you need to know.
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