Police 'showdown' averted
BY CAROL MARBIN MILLER
cmarbin@herald.com
Hours after a judge ordered that Terri Schiavo was not to be removed from her hospice, a team of state agents were en route to seize her and have her feeding tube reinserted -- but they stopped short when local police told them they would enforce the judge's order, The Herald has learned.
Agents of the Florida Department of Law Enforcement told police in Pinellas Park, the small town where Schiavo lies at Hospice Woodside, on Thursday that they were on the way to take her to a hospital to resume her feeding.
For a brief period, local police, who have officers at the hospice to keep protesters out, prepared for what sources called ``a showdown.''
In the end, the squad from the FDLE and the Department of Children & Families backed down, apparently concerned about confronting local police outside the hospice.
''We told them that unless they had the judge with them when they came, they were not going to get in,'' said a source with the local police.
''The FDLE called to say they were en route to the scene,'' said an official with the city police who requested anonymity. ``When the sheriff's department and our department told them they could not enforce their order, they backed off.''
The incident,known only to a few and related to The Herald by three different sources involved in Thursday's events, underscores the intense emotion and murky legal terrain that the Schiavo case has created. It also shows that agencies answering directly to Gov. Jeb Bush had planned to use a wrinkle in Florida law that would have allowed them to legally get around the judge's order. The exception in the law allows public agencies to freeze a judge's order whenever an agency appeals it.
CONSTITUTIONAL CRISIS
Participants in the high-stakes test of wills, who spoke with The Herald on the condition of anonymity, said they believed the standoff could ultimately have led to a constitutional crisis and a confrontation between dueling lawmen.
''There were two sets of law enforcement officers facing off, waiting for the other to blink,'' said one official with knowledge of Thursday morning's activities.
In jest, one official said local police discussed ``whether we had enough officers to hold off the National Guard.''
''It was kind of a showdown on the part of the locals and the state police,'' the official said. ``It it was not too long after that Jeb Bush was on TV saying that, evidently, he doesn't have as much authority as people think.''
State officials on Friday vigorously denied the notion that any ''showdown'' occurred.
''DCF directed no such action,'' said agency spokeswoman Zoraya Suarez.
Said Bush spokesman Jacob DiPietre: ``There was no showdown. We were ready to go. We didn't want to break the law. There was a process in place and we were following the process. The judge had an order and we were following the order.''
Tim Caddell, a spokesman for the city of Pinellas Park, declined to discuss Thursday's events.
SHELTER FOR SCHIAVO
The developments that set Thursday morning's events in motion began the previous afternoon, when the governor and DCF chief Lucy Hadi held an impromptu news conference to announce they were considering sheltering Schiavo under the state's adult protection law. DCF has been besieged, officials say, by thousands of calls alleging Schiavo is the victim of abuse or neglect.
Alerted by the Bush administration that Schiavo might be on her way to their facility, officials at Morton Plant Hospital went to court themselves Wednesday, asking Circuit Judge George Greer, who ordered the removal of Schiavo's feeding tube last week, what to do.
''It's an extraordinary situation,'' said Beth Hardy, a hospital spokeswoman. ``I don't think any of us has seen anything like it. Ever.''
Greer signed an order Wednesday afternoon forbidding DCF from ''taking possession of Theresa Marie Schiavo or removing her'' from the hospice. He directed ''each and every and singular sheriff of the state of Florida'' to enforce his order.
But Thursday, at 8:15 a.m., DCF lawyers appealed Greer's order to judges at the Second District Court of Appeal in Lakeland.
That created the window of time to seize Schiavo. When DCF filed its appeal, it effectively froze the judge's Wednesday order. It took nearly three hours before the judge found out and canceled the automatic stay, shortly before 11 a.m.
Administrators of the 72-bed hospice, who have endured a withering siege of their facility by protesters since Greer ordered Schiavo's feeding tube removed on March 18, declined to discuss Thursday morning's events in any detail.
''I don't really know, or pretend to know, the specifics of what is going on behind the scenes,'' said Mike Bell, a spokesman for Hospice of the Florida Suncoast, which operates Woodside.
DCF INTENTIONS
According to sources, DCF intended to take Schiavo to Morton Plant Hospital, where her feeding tube had been reinserted in 2003 following a previous judicial order allowing its removal. But hospice officials were aware that the hospital was not likely to perform surgery to reinsert the tube without an order from Greer.
''People knew that taking [Schiavo] did not equate with immediate reinsertion of the feeding tube,'' a source said. ``Hospital officials were working with their legal counsel and their advisors, trying to figure out which order superseded which, and what action they should take.''
Hardy, the hospital spokeswoman, said she does not believe the hospital was made aware Thursday morning that DCF and state police planned to bring Schiavo in. ''We were not aware of that three-hour period,'' she said. ``It's not a discussion we even had, really.''
George Felos, Michael Schiavo's attorney, said he does not think DCF officials knew of the window of opportunity they had created until well after they filed their appeal.
''Frankly, I don't believe when they filed their notice of appeal they realized that that gave them an automatic stay,'' Felos said. ``When we filed our motion to vacate the automatic stay . . . they realized they had a short window of opportunity and they wanted to extend that as long as they could.
``I believe that as soon as DCF knew they had an opportunity, they were mobilizing to take advantage of it, without a doubt.''
FV SAYS: Terri was murdered in cold blood because Jeb's law enforcement team/agents turned around on a Thursday, I think a week prior to the 31st? I may have the wrong Thursday.
Nothing is more inexcusable than that. Vigilers were waiting for an ambulance and instead they noticed two Sheriff's vehicles. FLORIDA IS BROKEN. FREEPERS, HELP US FIX IT. Your State could be next. Mae in Georgis is already next.
We do need to stop the filibusters.
Here's background about one of the more famous ones via a letter from Gonzales to Schumer:
February 25, 2003 11:10 a.m.
White House to Schumer: You’re Wrong.
The White House defends Miguel Estrada — again.
With the Democratic filibuster of the appeals-court nomination of Miguel Estrada continuing today in the Senate, White House counsel Alberto Gonzales has responded to comments made over the weekend by Sen. Charles Schumer, a leader of the opposition to Estrada. In an appearance on ABC's This Week With George Stephanopoulos, Schumer claimed, among other things, that Estrada "answered no questions" at his confirmation hearing; that "no judicial nominee that I'm aware of for such a high court has ever had so little of a record"; that "there is no legal precedent" against turning over Justice Department documents Estrada wrote while working in the Solicitor General's office; and that Democrats "are not filibustering" the nomination. In his letter to Schumer, seen in its entirety below, Gonzales responds to each of those points, as well as some others. — Byron York
February 24, 2003
Dear Senator Schumer:
Based on your public comments yesterday, I am concerned that you may have inaccurate and incomplete information about Miguel Estrada's qualifications and about the historical practice with respect to judicial confirmations. Therefore, I write to respectfully reiterate and explain our conclusion that you and certain other Senators are applying an unfair double standard — indeed, a series of unfair double standards — to Miguel Estrada.
First, your request for confidential attorney-client memoranda Mr. Estrada wrote in the Office of Solicitor General seeks information that, based on our review, has not been demanded from past nominees to the federal courts of appeals. We are informed that the Senate has not requested memoranda such as these for any of the 67 appeals court nominees since 1977 who had previously worked in the Justice Department — including the seven nominees who had previously worked in the Solicitor General's office. Nor have such memoranda been demanded from nominees in similar attorney-client situations: The Senate has not demanded confidential memoranda written by judicial nominees who had served as Senate lawyers, such as memoranda written by Stephen Breyer as a Senate counsel before Justice Breyer was confirmed to the First Circuit in 1980. Nor has the Senate demanded confidential memoranda written by judicial nominees who had served as law clerks to Supreme Court Justices or other federal or state judges. Nor has the Senate demanded confidential memoranda written by judicial nominees who had worked for private clients.
The very few isolated examples you have cited were not nominees for federal appeals courts. Moreover, those situations involved Executive Branch accommodations of targeted requests for particular documents about specific issues that were primarily related to allegations of malfeasance or misconduct in a federal office. We respectfully do not believe these examples support your request. Our conclusion about the general lack of support and precedent for your position is buttressed by the fact that every living former Solicitor General (four Democrats and three Republicans) has strongly opposed your request and stated that it would sacrifice and compromise the ability of the Justice Department to effectively represent the United States in court. In short, the traditional practice of the Senate and the Executive Branch with respect to federal appeals court nominations stands in contrast to your request here and supports our conclusion that an unfair double standard is being applied to Miguel Estrada. (Also, contrary to your suggestion yesterday, please note that no one in the Executive Branch has reviewed these memoranda since President Bush took office in January 2001.)
Second, you suggested that "no judicial nominee that I'm aware of, for such a high court, has ever had so little of a record." I respectfully disagree. Miguel Estrada has been a very accomplished lawyer, trying cases before federal juries, briefing and arguing numerous appeals before federal and state appeals courts, and arguing 15 cases before the Supreme Court, among his other significant work. His record and breadth of experience exceeds that of many judicial nominees, which is no doubt why the American Bar Association — which you have labeled the "gold standard" — unanimously rated him "well-qualified." In noting yesterday that Mr. Estrada's career had been devoted to "arguing for a client," you appeared to imply that only those with prior judicial service (or perhaps "a lot of [law review] articles") may serve on the federal appeals courts. But five of the eight judges currently serving on the D.C. Circuit had no prior judicial service at the time of their appointments. Indeed, Supreme Court Justices Rehnquist, White, and Powell — to name three of the most recent — had not served as judges before being confirmed to the Supreme Court. And like Mr. Estrada, two appointees of President Clinton to the D.C. Circuit (Judge David Tatel and Judge Merrick Garland) had similarly spent their careers "arguing for a client," but were nonetheless confirmed.
As the Chief Justice noted in his 2001 Year-End Report, moreover, "[t]he federal Judiciary has traditionally drawn from a wide diversity of professional backgrounds." The Chief Justice cited Justice Louis Brandeis, Justice John Harlan, Justice Byron White, Judge Thurgood Marshall (as nominee to the Second Circuit), Judge Learned Hand, and Judge John Minor Wisdom as just a few examples of great judges who had spent virtually their entire careers "arguing for a client" before becoming Supreme Court Justices or federal appeals court judges. As these examples show, had the "arguing for a client" standard been applied in the past, it would have deprived the American people of many of our most notable appellate judges. Based on our understanding, this standard has not been applied in the past. This further explains why we have concluded that an unfair double standard is being applied to Miguel Estrada.
Third, you stated that "when you went to those hearings, Mr. Estrada answered no questions." The record demonstrates otherwise. Mr. Estrada answered more than 100 questions at his hearing (and another 25 in follow-up written answers). He explained in some detail his approach to judging on many issues, and did so appropriately without providing his personal views on specific legal or policy questions that could come before him — which is how previous judicial nominees of Presidents of both parties have appropriately answered questions. Indeed, at his hearing, Mr. Estrada was asked and answered more questions, and did so more fully, than did President Clinton's appointees to this same court. Judge David Tatel was asked a total of three questions at his hearing. Judges Judith Rogers and Merrick Garland were each asked fewer than 20 questions. The three appointees of President Clinton — combined — thus answered fewer than half the number of questions at their hearings that Mr. Estrada answered at his hearing. What is more, like Mr. Estrada, both Judge Rogers and Judge Garland declined to give their personal views on disputed legal and policy questions at the hearing. Judge Rogers refused to give her views when asked about the notion of an evolving Constitution. And Mr. Garland did not answer questions about his personal views on the death penalty, stating that he would follow precedent. In short, we believe that your criticism of Mr. Estrada's answers at his hearing reveals that another unfair double standard is being applied to Mr. Estrada.
Fourth, you stated that the Founding Fathers "came to the conclusion that the Senate ought to ask a whole lot of questions" of judicial nominees. We respect the Senate's constitutional role in the confirmation process, and we agree that the Senate should make an informed judgment consistent with its traditional role and practices. But your characterization of the Senate's role with respect to judicial nominations is not consistent with our reading of historical or traditional practice. Alexander Hamilton explained that the purpose of Senate confirmation is to prevent appointment of "unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity." The Federalist 76. The Framers anticipated that the Senate's approval would not often be refused unless there were "special and strong reasons for the refusal." Id. Moreover, the Senate did not hold hearings on judicial nominees for much of American history, and the hearings for lower-court nominees in modern times traditionally have not included the examination of personal views that you have advocated. (My letter of February 12, 2003, to Senators Daschle and Leahy contains more detail on this point.) Indeed, just a few years ago, Senator Biden made clear, consistent with the traditional practice, that he would vote to confirm an appeals court judge if he were convinced that the nominee would follow precedent and otherwise was of high ability and integrity.
In short, it appears that you are seeking to change the Senate's traditional standard for assessing judicial nominees. We respect your right to advocate a change, but we do not believe that the standard you seek to apply is consistent with the Framers' vision, the traditional Senate practice, or the Senate's treatment of President Clinton's nominees. Rather, we believe a new standard is being devised and applied to Miguel Estrada.
Fifth, you stated yesterday that a "filibuster" is not an appropriate term to describe what has been occurring in the Senate. We respectfully disagree. Democrat Senators have objected to unanimous consent motions to schedule a vote, and they have indicated that they will continue to do so. That tactic is historically and commonly known as a filibuster, and is a dramatic escalation of the tactics used to oppose judicial nominees. Indeed, in 1998, Senator Leahy stated: "I have stated over and over again on this floor that I would refuse to put an anonymous hold on any judge; that I would object and fight against any filibuster on a judge, whether it is somebody I opposed or supported; that I felt the Senate should do its duty. If we don't like somebody the President nominates, vote him or her down. But don't hold them in this anonymous unconscionable limbo, because in doing that, the minority of Senators really shame all Senators." 144 Cong. Rec. S6522 (June 18, 1998). In our judgment, the tactics now being employed again show that Miguel Estrada is receiving differential treatment.
* * *
As I have said before, I appreciate and respect the Senate's constitutional role in the confirmation process. You have expressed concern that you do not know enough about Mr. Estrada's views, but you have not submitted any follow-up questions to him. We respectfully submit that the Senate has ample information and has had more than enough time to consider questions about the qualifications and suitability of a nominee submitted more than 21 months ago. Most important, we believe that a majority of Senators have now concluded that they possess sufficient information on Mr. Estrada and would vote to confirm him. We believe it is past time for the Senate to vote on this nominee, and we urge your support.
Sincerely,
/s/
Alberto R. Gonzales
Counsel to the President
http://www.nationalreview.com/york/york022503.asp
ping to 673. This was not everyone's imagination...
I keep wondering whether this was all scripted. Why would not the attorneys have known about an automatic stay of 3 hours when they filed? Why would Morton Hospital be the only hospital they could have taken the patient to? Why would two sheriff's cars be enough to withstand the entire State? Why would the Governor not have sent in a medi-vac helicopter to just fly over the two sheriff's cars? And so on.
They were so close to saving Terri.
It was such an emotional roller coaster for all of us.
I can only begin to imagine how her family must have felt.