Sunday, April 24, 2005

Terri Schiavo, The Courts, and Personal Policy Preferences

As many know I opposed the murder of Terri Schiavo, I made no attempt to cover up that stand. Also as you can read I am commenting on Justice Scalia's book about interpretation of the law and about how judges should read and interpret law not make law.

Here is the instigating blog.

A reader of Blogger Beer (thanks to that reader for reading Blogger Beer and for commenting, this is why I take time to write this blog) JPE states:
The same trick in Holy Trinity was at issue in the Schiavo case, in which conservatives urged justices to overlook the plain language of the statute and instead defer to the intent of Congress.
Source: JPE's comment on Blogger Beer - Justice Scalia and The Courts.

Here are a couple of questions I have before I am ready to believe people were clamoring for judicial activism in the Schiavo case. Please note I do not refer to this as a left vs. right case as this case did cut across the left right divide (Jesse Jackson, Ralph Nader, a unanimous Senate, other lesser well known leftists were also fighting for Terri).

  1. What Florida laws were in play?
  2. This is where I am inclined to believe where the charge made by JPE is the strongest. I also believe (based on various reports) the Schindlers were out-lawyered from the very beginning and only towards the end did they get adequate representation but it was too late. The first courts to hear this fight were the ones who established the facts, and Schiavo's lawyer did a superb job of getting the court to accept their presented facts.
  3. What about the law passed by the Florida State Legislature and signed by Governor Bush?
  4. I recall it was deemed unconstitutional. What did the law state and on what grounds was it found unconstitutional? I take it, the bill was contrary to the Florida State Constitution. I do not recall the nitty-grittys here.
  5. The Congress issued a subpoena for Terri to appear before it.
  6. Why was that request flouted by a judge?
  7. The Federal Bill ordered the Federal court system here to conduct a De Novo review. Why did it not happen?
  8. James Sensensbrenner made a big deal over one word to make sure Congressional will was clear. The words were "may" and "shall". IIRC this is the objected to version (a paraphrase here) "the court may conduct a de novo review" here is the version that passed "the court shall conduct a de novo review".

    Mind you the constitution grants the power of determining the jurisdiction of the federal courts. What in the Federal Terri law gave the judge license to thumb his nose at it?

The Federal Congress passing Terri's law (with the unanimous consent of the Senate) was not out of bounds and the federal court was to perform a de novo review of the case. The court did not and I would like to know on what grounds did they refuse?