The 11th Circuit Speaks

Our court system is broken, perhaps beyond repair. 

The first prerequisite of the rule of law is that those charged with administering the law are committed to obeying it.  The Terri Schiavo case demonstrates that many of our judges have nothing but contempt with the law that they must interpret and apply.

First Judge Whittemore refused to obey the clear requirement of the law that he review Terri Schiavo's claims de novo.  Then two judges of the Court of Appeals for the Eleventh Circuit (one of whom is a legacy of the first Bush administration) affirmed Judge Whittemore's lawlessness.  We cannot sustain a government of laws when many of our judges feel free to ignore controlling legal authority.

Both Judge Whittemore's order and the 11th Circuit opinion are almost entirely devoted to matters that are beside the point.  They discuss in detail whether Terri's parents are likely to prevail on the merits of their suit because likelihood of success on the merits is traditionally one criterion for the issuance of a preliminary injunction.  But nobody is asking for a traditional preliminary injunction in this case.  Nearly everything both Judge Whittemore and the 11th Circuit have to say is, therefore, irrelevant.  All their talk about likelihood of success on the merits is just a fig leaf intended to cover the embarrassing reality that they are refusing to do what Congress obviously and authoritatively ordered them to do.

There is no ambiguity in the statute giving the courts jurisdiction over Terri's case.  Nobody is stupid enough to misunderstand what that law requires.  Congress charged the federal courts with a duty to find the relevant facts and apply the relevant law.  The courts manifestly cannot fulfill this duty if they let Terri die because they think federal proceedings would probably come to the same result the state courts already reached. 

Congress has determined that the state courts did not do their job properly in Terri's case and that the job must be done again.  The federal courts are bound by this determination.  They cannot properly say that the plaintiffs in the case before them probably won't succeed on the merits because the state proceedings look OK to them.  If they ignore Congress and sit on their hands they are demonstrating utter contempt for their obligation to the law.

  Reasonable people can differ about how the law should deal with severely brain-damaged people.  But there is no basis for rational dispute about the obligation of federal judges to obey federal law.  So far in the Schiavo case three federal judges have announced that they are above the law.  Regardless of how one feels about the merits of that case, this is a scandal and an outrage. 

Terri Schiavo's life is no longer the only precious thing at stake in her case.  If we are going to sustain a government of laws our judges have to understand that they have a limited role in the constitutional scheme and they have to play that role. 

Governments can resolve disagreements through reasoned debate and political compromise or they can suppress all disagreement by force.  If our judges won't respect the outcomes of the political process, reasoned debate will become pointless and we will ultimately fall back on force. 

Nobody wants that result.  Unfortunately many people are working hard to bring it about.  We need better judges urgently.  Are you listening Senator Frist?  Can we deal with those filibusters now?

Comments

[Luciferous]

Raw power is the common coin of today's judiciary. The only issue is how elected governors will recover the rule of law and constrain "the most dangerous branch" in its proper constitutional role.

[nicholas martin]

Sounds like a corroboration of Robert Bork's book, The Tempting of America.
Indeed, is Senator Frist listening ?!?!? We should not pussyfoot with this filibustering issue. We should take no prisoners. As long as the democratic party stands for destructive measures, distructive to our nation, we should have the moral courage to deal with them accordingly. With full determination and no hesitation whatsoever.

Many of today's "liberals" are indeed deeply influenced by marxist ideology - if we give them the benefit of the doubt, they might not be aware of it themselves. This ideology is extremely dangereous, it can, so to speak, destroy a nation's immune system ! It corrupts healthy instincts and sets one on an emotional path of destruction.

A good medical doctor is ALWAYS strict with his/her patients. In that sense I believe we should administer some good medicine to today's liberals, before they cause irreversible harm to themselves and everyone else.

[TomC]

This is a slow-motion replay of Kitty Genovese, in front of a nation. Is no one in this country both willing and able to intervene?

Shouldn't Congress have anticipated that this would happen? What was the point of the Shiavo bill?

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