of 19 Judges and Ignoring the Will of Congress
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
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.
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.
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.
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
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.
ignored the clear meaning of the law passed by Congress and rubberstamped
the decision to remove Terri Schiavo's feeding tube.
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
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.
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.
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
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.
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.
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.
2005 Creators Syndicate
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