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« Funny Because It's True: The Questions the Press Really Wants to Ask | Main | ..But Score One For French Judges: Soros Conviction Upheld »
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.


posted by Ace at 01:25 PM
Comments



One of many sad things is that the "many judges" are mostly Judge Greer, over and over and over again.

Posted by: OCBill on March 24, 2005 01:51 PM

I believe the Shindler family did not ask the court for a de novo review, rather they appealed that there was a constitutional violation of her religious rights in all the previous FL judicial proceedings.

I'm not an attorney, but if the above is correct, the judge can only rule on what was put before him, and if they put the wrong thing before him.......

Posted by: on March 24, 2005 02:06 PM

The family didn't need to request a de novo review. Congress specifically directed the court to perform one, so a request wasn't necessary.

Posted by: Jimmie on March 24, 2005 02:16 PM

The congress authorized a de novo review, and the lawyer didn't ask for one.

If they asked for one, the judge was authorized to grant it. If they ask for a cheese pizza with olives and sausage, the judge would have addressed THAT request.

Posted by: Gutter Glitter on March 24, 2005 02:26 PM

I don't think they taught that one in my law school. But then, I was absent a couple of times.

Posted by: Birkel on March 24, 2005 03:03 PM

Terri's going to die, horribly.

It's sad.

Posted by: TallDave on March 24, 2005 03:05 PM

The problem her is that as usual liberals are lying. ONE JUDGE has reviewed the facts in this case, and done a very poor job of it. The other judges reviewed only process.

We conservatives are at a huge natural disadvantage in this type of dispute, because we prefer the gov't generally not act against Americans. Therefore, when we control the gov't, we don't do things like Ruby Ridge, Waco, or Elian.

Activist creeds always enjoy the advantage, even when they're wrong.


Posted by: TallDave on March 24, 2005 03:09 PM

A Florida judge has denied Florida's bid to take custody of Terri Schiavo.

I wonder which judge. No, I don't.

"Bush's request cited new allegations of neglect and challenged the diagnoses that Schiavo is in a persistent vegetative state, but Pinellas Circuit Judge George Greer wasn't convinced."

Posted by: OCBill on March 24, 2005 03:27 PM

Agressive, extended rehabilitation was given to Terry for several years - AND IT DIDN'T WORK!

The Wolfson Report

Please people, let her rest in peace...

Posted by: Glenn Dixon on March 24, 2005 04:19 PM

There are two problems with that Glenn

1) Wolfson's report is WRONG. Terri did show response, according to several nurses, who say their reports were removed and destroyed by Michael. One of them as fired after she went to the police over the matter.

2) Starving her to death is not letting her rest in peace. At the very least give her a painless death.

Posted by: TallDave on March 24, 2005 04:26 PM

Glenn Dickson's blog says:

I really didn’t plan on diving into this particular topic, but I just ran across some information that disproves just about everything all of Terri Schiavo’s supporters are saying.

One-stop shopping. Now that's what I call research.

Posted by: on March 24, 2005 04:33 PM

BTW, those are sworn, notarized affidavits, and they include testimony that Michael apparently tried to kill Terri by injecting her with insulin, said "When is that bitch going to die?" to several staff members, and talked about how he was gong to be rich every time she fell ill.

Posted by: TallDave on March 24, 2005 04:36 PM

Also in the Wolfson report on page 31, there is a note that Terri said 'No' during one of her physical therapy sessions, the quote is:

"There is evidence early in her records of care that she said “no” during physical therapy session."

Posted by: OCBill on March 24, 2005 05:00 PM

Anon,

Well, that's the big intellectual difference today. Conservatives look at both sides of an issue and reach a conclusion. Liberals adoringly quote experts on their side and then talk smugly about how ignorant conservatives are.

That's why Fox News is so wildly popular. Imagine! Two sides to an issue!

Posted by: TallDave on March 24, 2005 05:10 PM

It's pretty simple -- I saw this on freerepublic.com and it sums it up perfectly:

Man "finds" Wife unconscious.
Man keeps Wife unconscious.
Man gets malpractice money for Wife.
Man wants Wife's money.
Man wants Wife dead so Man can have money.
Man gets Lawyer.
Lawyer is secret Hospice Chairman.
Lawyer promises Man that Wife will die at Hospice he Chairs...

Nuff said.

-b

Posted by: Ben on March 24, 2005 06:54 PM

Let's stipulate for the sake of discussion that Michael Schiavo is the greediest and most conniving of all human beings. Even if he is, I still wish the federal government had not been convulsed by this case and had not suffered such a huge loss of popular respect. The federal government was made to handle affairs on a national and international scale, not a personal scale. I don't think human beings and human institutions can be expected to handle issues at every level and still do it well.

In fact, it occurs to me that the one great point of agreement of the people on either side of this case is that the federal government has in one way or another failed: It's failed to "save Terri," "keep free of Church control," "preserve our individual rights," "preserve limited government and federalism," "stop murder," or "let a vegetable die." The federal government is either in the grip of wicked theocrats or wicked atheists, etc., etc.

I think the federal government just wasn't designed to be involved in this--and it shows. While all of us have our horrifying knockdown-dragout, the federal government could have been sailing along, taking care of national and international matters of treasure, war, justice, and state.

Will someone gratify me by explaining why my choice of "treasure, war, justice, and state" to describe the national concerns of the federal government isn't merely an arbitrary list?

Posted by: Halleck on March 24, 2005 09:17 PM

"the federal government could have been sailing along, taking care of national and international matters of treasure, war, justice, and state."

I contend the Congress was trying to take care of matters of justice. The fact that a man who has an economic interest in his wife's death should not be her guardian and if he is that is injustice.

Posted by: BrewFan on March 24, 2005 09:48 PM

Brewfan said, "I contend the Congress was trying to take care of matters of justice. The fact that a man who has an economic interest in his wife's death should not be her guardian and if he is that is injustice."

The fact that there is a question of justice here is a worthy point, Brewfan.

In the Constitution, The Congress was given a list of matters about which it has the formal power to make law; those powers are usually called "the enumerated powers." Without actually going back and rereading the list, I'd venture to say that all of them relate to matters the individual states couldn't reasonably be expected to handle on their own. Matters of justice between persons were left to the states. Formerly, about the only constitutionally permitted role the Congress was considered to have in matters between individuals was in regard to interstate matters. Thus, for instance, kidnapping was a federal crime--but only interstate kidnapping. Also, we have federal categories of fraud such as "mail fraud" and "wire fraud" because these so often were perpetrated across state lines.

You're right that there's a question of justice in the Schiavo case. In fact, I think a political matter almost always involves a question of justice. It's just that the Constitution recognizes the great value in letting people in each state handle things according to their own lights and the great value in having a separate, federal government that's concerned with matters of national and international scope. I'm careful to use the word "scope," not "importance," because of course the proper handling of cases like Terri Schiavo's is important anywhere in the nation. It's just that the scope of any single such case is local, unlike (for example) fighting al-Qaeda, which has a global scope.

That brings up a point: The decline of federalism scares me. I know that Florida is going to badly botch things sometimes, but even when Florida is making a mess of things, I'd like all 50 states to be protected from foreign powers (and each other, for that matter). And even when Florida can't settle a hard case in 15 years, I'd still like the Congress to have their attention solidly on the federal budget.

Posted by: Halleck on March 25, 2005 12:49 AM

Right. But we do have a fourteenth amendment.

I suggest we use it. For once we can actually do some good with this very dangerous tool that has been the rise of so much federal overreach in the past.

Posted by: See-Dubya on March 25, 2005 12:53 AM
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