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March 24, 2005

Terri-- A Glimmer of Hope?

I think the "Glimmer of Hope" headline of this story has been undermined by unfolding events-- there's very little that can be done now; the Florida legislature won't act, and every court has rejected appeals on Terri's behalf-- but at least Andrew McCarthy is documenting the judicial travesty:

Judge Wilson, a former United States attorney in Florida whom President Clinton appointed to the Eleventh Circuit in 1999, disagreed — intensely. Principally, he seized on a new issue — not considered below by Judge Whittemore, but now raised by both the Schindlers and the Bush Justice Department under Attorney General Alberto Gonzales, who intervened by filing a supportive “Statement of Interest” with the court. That issue is the All Writs Act (28 U.S.C. Sec. 1651).

This act is a special power of courts to issue orders in aid of their own jurisdiction. As Judge Wilson explained, the authority of a court to command that an action (such as the reinsertion of Terri’s feeding tube) be taken under the All Writs Act is significantly different in its purpose from an order having the same effect but issued as a preliminary injunction. In the latter case, the injunction is for the benefit of the litigant, who is thus called on to satisfy the test that requires a demonstration of probable success on the merits. To the contrary, the All Writs Act is for the protection and integrity of proceedings before the public’s courts. It does not allow courts to create jurisdiction, but it does empower them to preserve the jurisdiction they already have by staying the hand of outsiders whose actions could prevent the court from considering issues and bringing litigation to a natural, rather than a forced, conclusion.

Most of the judges of the 11th Circuit ignored this, of course. Perhaps, as Kevin Pollack said, they were absent on the day they taught law at law school.

Several commenters here have noted that "many judges" have reviewed this case. But it must be borne in mind that those "many judges" all showed the same deference to Judge Greer's original rulings that the federal courts did here-- despite the fact that the act passed by Congress, and signed by President Bush, specifically and unabiguously authorized a de novo (i.e., new, without any deference to previous rulings) of the case for any possible constitutional violations.

So, to say that "many judges" have reviewed this is misleading. Even when authorized to do a complete de novo review, they balk and simply affirm Judge Greer's earlier findings, stating that there's no evidence Greer "abused his discretion" or the like.


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posted by Ace at 01:25 PM

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