March 25, 2005
Myth of 19 Judges and Ignoring the Will of Congress
By Thomas Sowell

Liberals have repeatedly used the talking point of how many judges have heard the case of Terri Schiavo. But that is as misleading as most of the rest of what they and the mainstream media have been saying.

When a case goes up to a higher court on appeal, the issue before the appellate court is not whether they agree with the merits of the decision of the lower court. In a criminal case, for example, the issue before the appellate court is not whether the defendant was guilty or innocent, but whether the trial was conducted properly.

In other words, the defendant is not supposed to be tried again at the appellate level. So, no matter how many appellate judges rule one way or the other, that tells you absolutely nothing about the fundamental question of guilt or innocence.

Similar principles apply in a civil case, such as that of Terri Schiavo. Liberals can count all the judges they want, but that does not mean that all these judges agreed with the merits of the original court's decision. It means that they found no basis for saying that the original court's decision was illegal.

What the law just passed by Congress did was authorize a federal court to go back to square one and examine the actual merits of the Terri Schiavo case, not simply review whether the previous judge behaved illegally. Congress authorized the federal courts to retry this case from scratch -- "de novo" as the legislation says in legal terminology.

That is precisely what the federal courts have refused to do. There is no way that federal District Judge James Whittemore could have examined this complex case, with its contending legal arguments and conflicting experts, from scratch in a couple of days, even if he had worked around the clock without eating or sleeping.

Judge Whittemore ignored the clear meaning of the law passed by Congress and rubberstamped the decision to remove Terri Schiavo's feeding tube.

Nor could the judges on the Court of Appeals have gone through all of this material "de novo" in a couple of days after Judge Whittemore's decision. They have added to the number of judges that liberals can count but they have not followed the law -- which is what really counts.

The federal judges have rushed to judgment -- in a case where there was no rush legally, despite a medical urgency. Terri Schiavo was not dying from anything other than a lack of food and water. These federal judges could have ordered the feeding tube restored while they gave this issue the thorough examination authorized -- and indeed prescribed -- by the recent Congressional legislation.

As dissenting Judge Charles Wilson of the 11th Circuit Court of Appeals put it, the "entire purpose of the statute" is to let federal courts look at the case "with a fresh pair of eyes." But, by the Circuit Court's decision, "we virtually guarantee" that the merits of the case "will never be litigated in a federal court" because Terri Schiavo will be dead. Never -- regardless of how many judges are counted as talking points.

The liberal line, both in politics and in the media, is that Congress somehow behaved unconstitutionally. All federal courts except the Supreme Court are created by Congress. The Constitution itself gives Congress the authority to define or restrict the jurisdictions of federal courts, including the Supreme Court.

Is the Constitution unconstitutional?

The lessons of this tragic episode are as momentous as they are painful, if only because we should never want to see such a miscarriage of justice again. The issue is not only whether Terri Schiavo should live or die, important as that is.

Another important issue is whether self-government in this country will live or die. Judges who ignore the laws passed by elected representatives are slowly but surely replacing democracy with judicial rule. Meanwhile, the media treat judges as sacrosanct and any criticism of them as almost blasphemy.

All this adds more urgency to the need to put judges on the courts who will follow the written law, not their own notions. We can only hope that the Senate Republicans have the guts to do that.

Copyright 2005 Creators Syndicate

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