Tuesday, March 29, 2005

Schiavo: Federalism and Separation of Powers
What is, from the legal analyst for CBS News:
Terri Schiavo's parents did not lose their federal case because they didn't try hard enough, ... because everyone conspired against them, ... because Congress ticked off the judiciary over the weekend with its over-the-top custom-made legislation, ... for lack of money or because they failed to file a court paper on time, ... 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.
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.

If you ponder that notion you will realize just how astounding it is. If accepted, it would have meant the end of state courts as we know them. No decision at the state level ever would be final, because every losing litigant at the state court level would be able to walk into federal court and declare a federal constitutional violation. State court trials thus would become like practice sessions and the federal courts, which are supposed to be of "limited jurisdiction," resolving only certain kinds of disputes, would become free-for-alls.

It's true that there are many federal claims that run concurrent with state law. And sometimes, in rare cases, it is necessary for the federal courts to look behind the curtain of a state court ruling. And sometimes it is required. In capital cases, for example, the law requires a federal review of a state court death penalty conviction. In such cases, the government is seeking to kill someone on behalf of the people. In the Schiavo case, a private guardian (a husband) was seeking permission to fulfill his wife's wishes, as determined by the state court of Florida. Yes, there is a difference, one that has been recognized in law and tradition.

If we were to open the doors of federal courts to every losing side in a guardianship case, or a child custody case, or any other matter traditionally left to state courts, we would be changing the very nature of the balance between federal power and states' rights. And we would be doing so at the request of politicians who have spent a generation trumpeting states' rights over the intrusion of federal power.

So how has the federal judiciary reacted to this terrible idea? ... The federal trial judge in this latest case, U.S. District Judge James D. Whittemore, specifically rejected it. The argument by Schiavo's parents, he wrote, "effectively ignores the role of the presiding judge as judicial fact-finder and decision-maker under the Florida statutory scheme …. [Michael Schiavo] is correct that no federal constitutional right is implicated when a judge merely grants relief to a litigant in accordance with the law he is sworn to uphold and follow."

It is no wonder that the federal appeals court refused to reverse Whittemore's ruling. And it is no wonder that the conservative U.S. Supreme Court decided for a fourth time to stay out of the case. This harsh reality won't make it any easier for the Schindlers, but government cannot run on passion or emotion or sympathy. As the U.S. 11th Circuit Court of Appeals wrote: "There is no denying the absolute tragedy that has befallen Mrs. Schiavo…. In the end, and no matter how much we wish Mrs. Schiavo had never suffered such a horrible accident, we are a nation of laws."

I don't blame the Schindlers and their lawyers for coming up with any and every argument they could think of. Grief expresses itself in many ways. By refusing to accept the Florida court decisions, Congress and the White House enabled this grief, falsely encouraged it and then used it, and the Schindlers, for political purposes. The federal courts, on the other hand, by refusing to change the Constitution for one family, acknowledged this grief and tried to deal with it as humanely as possible while still providing the finality that our legal system provides and that our society needs.
What is not, from Hullabaloo:
By now most people who read liberal blogs are aware that George W. Bush signed a law in Texas that expressly gave hospitals the right to remove life support if the patient could not pay and there was no hope of revival, regardless of the patient's family's wishes. It is called the Texas Futile Care Law. Under this law, a baby was removed from life support against his mother's wishes in Texas just this week. A 68 year old man was given a temporary reprieve by the Texas courts just yesterday. ... [We] are also aware that Republicans have voted en masse to pull the plug (no pun intended) on medicaid funding that pays for the kind of care that someone like Terry Schiavo and many others who are not so severely brain damaged need all across this country. ... [We] also understand that that the tort reform that is being contemplated by the Republican congress would preclude malpractice claims like that which has paid for Terry Schiavo's care thus far. ... [We] are aware that the bankruptcy bill will make it even more difficult for families who suffer a catastrophic illness like Terry Schiavo's because they will not be able to declare chapter 7 bankruptcy and get a fresh start when the gargantuan medical bills become overwhelming. ... And [we] also know that this grandstanding by the congress is a purely political move designed to appease the religious right and that the legal maneuverings being employed would be anathema to any true small government conservative.

Those who don't read liberal blogs, on the other hand, are seeing a spectacle on television in which the news anchors repeatedly say that the congress is "stepping in to save Terry Schiavo" mimicking the unctuous words of Tom Delay as they grovel and leer at the family and nod sympathetically at the sanctimonious phonies who are using this issue for their political gain.


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