Tuesday, March 22, 2005

The Judge rules

Judge Wittemore ruled earlier today in the Terri Schiavo case. I haven't posted about it earlier, in part because I was so shocked at the result and couldn't really believe that it happened the way it did. My shock and disbelief prevented me from properly articulate how unbelievable it was. Thankfully, Hugh Hewitt was able to articulate what I would have said:
Judge Wittemore's ruling is shocking. The crucial discussion in his opinion begins:

"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 'notwithstanding any prior State court determination.'"

Then, without a single witness having been called, and relying on a few hours review of a handful of affidavits, the judge announces that Terri's parents don't have a substantial likelihood of success at trial, and refuses to order any relief that will allow that trial to occur. "This court appreciates the gravity of the consequences of denying injunctive relief," he writes, as though this expression of seriousness on his part will somehow oblige us to ignore his contempt of Congressional intent.

It was clearly the intention of Congress that Terri receive nutrition and hydration throughout the course of a "de novo" trial on the merits of her claim. Her parents could well lose that trial and subsequent appeals, but the Florida legislature might also act in the interim. The judge rushes through his part in this drama and punts to the 11th Circuit, which would have been fine by me if he had resumed nutrition and hydration.

But he didn't. Citing case law having to do with other settings in which injunctive relief has been sought and denied is another sideshow. Tom Delay, in the Sunday press conference where this was announced, stressed that the legislation had been crafted to get Terri back on hydration and nutrition pending a de novo review of the facts in federal court. Judge Wittemore is wrong to rely on other precedents when the Congress gives such an explicit charge.

At a minimum, Judge Wittemore ought to have ordered resumption of hydration until the 11th Circuit and, if necessary, Supreme Court appeals are heard. Convicted felons don't get executed until all the appeals are heard. Their executions are stayed even when they haven't got a prayer of a chance of success. Not so in this setting. And that is what is so shocking.
But it is a wholly different matter when a court simply ignores the obvious intent of an overwhelming majority of the Congress and the agreement of the president. Once again we have on display a judiciary that has grown contemptuous of the directly elected branches. When the Senate returns, the clash over judges will commence again, and proponents of nominees who understand that it is the role of judges to apply the law as intended by Congress will have another powerful example of why such nominees are so needed on the bench.

I hope the panel of the 11th Circuit Court of Appeals does not conduct itself with such contempt of the coordinate branches, and quickly issues the obvious order resuming food and water until the hearings that Congress intended be held are in fact held.

Again, to review, the "de novo" order was so that the Court would review the case, from the beginning, and not standing on other rulings. Clearly there was no time for this to have happened.

It's amazing to me that the Left is so against Congress, again, elected by citizens of the states, involving itself in this matter, but cheers when Judges involve themselves by allowing death. Some may think that Judge Wittemore's decision to not re-insert the feeding tube is not involvement, but is inaction is more decisively a firm action.

As Hugh stated in the final paragraphs, a situation like this, where the Judiciary ignores a direct intent of the Legislative branch, the Left is simply revealing to everyone else why their obstructionist stance against Judicial nominations is such a big deal. Democrats are being burned on all sides because of this, and they're not even doing it to SAVE a life.