Patterico's Pontifications

3/31/2005

DeLay’s Talk About Impeaching Judges Is Outrageous and Wrong

Filed under: Politics,Schiavo — Patterico @ 6:28 pm

Tom DeLay has crossed the line by talking about the possibility of impeaching judges who ruled against Terri Schiavo’s parents.

Congressman DeLay and others argue that the federal courts simply ignored Congress’s intent that there be a new evidentiary hearing. But after reading the numerous opinions issued in this case, my view is that this argument doesn’t fly. The law required the federal courts to determine whether Terri Schiavo had been deprived of any federal rights. Absent the violation of a federal right, the law didn’t require the federal courts to re-determine whether Florida had properly applied state law in adjudicating the Schiavo dispute.

DeLay and other appear to argue that the clear intent of the law was that the courts determine the entire case anew. But that wasn’t what the law said. Courts discern intent primarily from the plain language of the statute that is passed — and the plain language of this statute required a violation of Terri Schiavo’s federal rights before the federal courts could take any action.

I have argued (in the postscript to this post) that the limited nature of the law is what made it appropriate and constitutional. I would have had a very different opinion if I thought the law passed by Congress had required the federal courts to simply second-guess the Florida courts’ application of state law issues. But the law didn’t do that. Terri Schiavo’s federal rights were the only thing the federal courts were authorized to consider. Nothing more.

And the federal courts did exactly that, ruling that Schiavo’s federal rights were not violated.

These federal judges were not entitled to read the law in a manner different than it was written. Nor were they authorized to start making up Constitutional rights that don’t exist. As conservatives, we don’t want our judges to engage in that sort of behavior.

This doesn’t mean that I am comfortable with the federal courts’ decision in every respect. I had two specific and related problems with the way that the courts ruled: 1) the case was decided with an unseemly haste that would never pass muster in a death penalty appeal; and 2) I thought Judge Tjoflat (the dissenting judge in the denial of en banc review) articulated a plausible potential federal constitutional law violation: the failure of the state courts to properly apply a “clear and convincing” standard — a standard that may arguably be required under the federal Constitution.

But, ultimately, this is an argument that might well be a loser. The existence of the argument provides no support for the view that the federal courts’ decisions were so outrageous that the judges deserve to be impeached.

I had many problems with the way that the Schiavo case was decided in the Florida courts. I have articulated some specific problems with the judge’s factfinding. But ultimately, my problem is one of process: I simply don’t think that a life-or-death decision should be made by a single probate judge according to a “clear and convincing” standard. It should be made by a jury according to a “beyond a reasonable doubt” standard — at least in the absence of a prior written directive, or agreement among the patient’s close family members concerning the patient’s wishes. The specific problems with the Florida courts’ handling of the case, to me, simply point up the need for these stricter procedures.

But my suggestions, while I think they are good ones, are apparently not required by the Constitution or the laws of the United States. And it is a painful truth, though one not widely understood, that not every good idea is constitutionally required.

What happened to Terri Schiavo today was wrong. The process for deciding cases like hers is flawed. So let’s work to pass a good law in this area that can benefit future people in Terri Schiavo’s position. But let’s shelve the talk about impeaching judges. That’s pure political opportunism. If Tom DeLay had any valid argument that he had acted on principle, that argument is now dead.

P.S. Not that I am surprised. I said previously that I don’t like DeLay — even as I defended him against the outrageous decision by the L.A. Times to print a front-page story about the death of DeLay’s father.

40 Responses to “DeLay’s Talk About Impeaching Judges Is Outrageous and Wrong”

  1. “Tom DeLay has crossed the line by talking about the possibility of impeaching judges who ruled against Terri Schiavo’s parents.”

    Its funny how these ideas percolate from winger freepi-land up on to one of the more powerful elected officials in this country. Good show for calling him out on it. There’s some nice organizations working on ousting him.

    actus (f9abe0)

  2. I’d certainly prefer to have a more credible person in his position. His is not a face I want representing the Republican party.

    Patterico (756436)

  3. OK so what’s wrong with Delay? I saw him on TV tonight and he said Congress had asked the Federal courts to make sure Shiavo’z rights weren’t violated.

    So I am calling this BS … Delay did not say impeach anyone, he said the House Judiciary would take a look at how the judges responded. He did not say impeach. Repeat he did not say impeach, even when asked if that is what he wanted.

    Hello, is that you Mr. Soros? Maybe you should look into Whitewater, Waco, Elian Gonzales or a few other things that still need answers. Be a help not a stooge.

    Moonbats infest Patterico? Could be.

    bill (26027c)

  4. Impeaching judges will never happen no matter who tries. It’s all talk, IF he said it. But I’m all for term limits for all of Congress and eliminating lifetime appointments for all judges. Make ’em run for re-election where they can be defeated if they are ‘way out in La La Land. (OOPs! That’s CA.)

    Bachbone (de6b7a)

  5. Patterico:

    I simply don’t think that a life-or-death decision should be made by a single probate judge according to a “clear and convincing” standard. It should be made by a jury according to a “beyond a reasonable doubt” standard – at least in the absence of a prior written directive, or agreement among the patient’s close family members concerning the patient’s wishes.

    But “agreement among the patient’s close family members” as a standard ignores the law of kinship. The husband is the next of kin. And would this standard of agreement depend upon unanimity? Who would be considered “close family” for this purpose?

    Anyway, you’ve been arguing for a Fourteenth Amendment review of this case at the Federal level. When a jury finds for one side in such a case, the other side wouldn’t have the benefit of a jury’s standards at the appellate level, anyway, so your proposal breaks down at that point. Either a judge is competent to determine the facts or he is not, at whatever level he is in the process.

    (Please don’t hurt me too much; I am very obviously not a lawyer.)

    Toby Petzold (cd28cf)

  6. Asked about the possibility of the House’s bringing impeachment charges against judges in the Schiavo case, DeLay said, “There’s plenty of time to look into that.”

    That’s consistent with what I said.

    Patterico (756436)

  7. Your link is messed up. I presume you meant to link here. However, that story says nothing about impeaching any of the judges involved in this case. The closest it comes to that is its reference to the House Judiciary Committee hearings on the definition of “good behavior” for judges. Granted, those hearings could turn into some kind of witch hunt, but I don’t think it’s fair to assume that in advance.

    I’m also unclear as to why you think a broader statute – y’know, the one 99% of the citizenry and 90% of the voting Congressmen thought Congress voted on two weeks ago – would have been unconstitutional. On what basis? Once a court has federal question jurisdiction to hear a case, there’s no constitutional bar to it also hearing related claims under state law. The only thing unusual about it this case (aside from the fact that it applied to only one person) was that the state law matters had already been litigated in state court. If another state tried to re-litigate such a matter, it would be clearly barred under the full faith and credit clause, which applies only to the states. What’s to stop a federal court from doing the same?

    Xrlq (c51d0d)

  8. But “agreement among the patient’s close family members” as a standard ignores the law of kinship.

    Irrelevant. No one, including your next of kin, has a right to murder you, even in Florida. However, if your spouse, your parents and your adult children all agree you wanted the doctor to pull the plug, chances are pretty damned good that they’re right.

    Forget what you think you know about the Schiavo case in particular, and think about the issue in general. Statistically speaking, apart from suicides, the one person most likely to murder you is your spouse. If your parents were going to do it, they probably would have done so when you were a kid, but it’s not unheard of for parents to murder their adult children as well (cf. Marvin Gaye). But when was the last time anyone’s spouse and parents conspired to do him/her in?

    Xrlq (c51d0d)

  9. Patterico,

    I suppose you are only attempting to protect your profession.

    The judges should be impeached. They are in rebellion against the Constitution and the people of the United States.

    Note that you have yet to take me up on my offer. It stands without refute–all you have on your side here is professional self-interest and opinion.

    That will not do.

    Paul Deignan (8d12a4)

  10. X, let’s just be clear about one thing: you don’t respect the legality of the union of one man and one woman in the sacred bonds of marriage. That is to say, you don’t get around the fact that Michael Schiavo was Terri Schindler Schiavo’s next of kin. Everything else you’re saying is simply in obfuscation of that.

    Toby Petzold (cd28cf)

  11. Xrlq,

    Here is a better link, and the one I meant to include originally anyway (I ditched it for a secondary link due to registration issues that I didn’t want to deal with). Again, the relevant language:

    Asked about the possibility of the House’s bringing impeachment charges against judges in the Schiavo case, DeLay said, “There’s plenty of time to look into that.’’

    That’s irresponsible. There’s plenty of other language in the piece about the judiciary “thumbing its nose” at Congress — which it just didn’t do.

    I think a statute would be unconstitutional that simply said: relitigate the state-law claims in federal court. There is no federal question jurisdiction there. That’s what I said in the post.

    Patterico (756436)

  12. X, let’s just be clear about one thing: you don’t respect the legality of the union of one man and one woman in the sacred bonds of marriage.

    Toby, let’s just be clear about one thing: you don’t know WTF you are talking about. It’s all well and good to wax poetic about the “sacred” (whatever that is supposed to mean in a legal context) bond of marriage, but it has nothing to do with the issue at hand, namely, did Terri Schiavo ask to be taken off of life support if incapacitated? All the “sacredness” in the world does not affect the substantial likelihood that she did not. No one has a right to kill anyone else. That the killer is the victim’s next of kin is immaterial. Scott Peterson was Laci’s next of kin, too.

    Xrlq (c51d0d)

  13. Asked about the possibility of the House’s bringing impeachment charges against judges in the Schiavo case, DeLay said, “There’s plenty of time to look into that.”

    That’s irresponsible.

    I disagree. There is plenty of time to look into that, and there’s nothing irrepsonsible about doing so. It would be irresponsible to have said “Hell yeah, we’re gonna impeach their asses first and ask questions later,” but he didn’t say that. He suggested they’ll look into it. And they should.

    There’s plenty of other language in the piece about the judiciary “thumbing its nose” at Congress – which it just didn’t do.

    Sure had me fooled. That Birch guy went out of his way to thumb his nose at Congress for daring to intrude upon their judicial empire.

    I think a statute would be unconstitutional that simply said: relitigate the state-law claims in federal court. There is no federal question jurisdiction there. That’s what I said in the post.

    True, but it’s not what you said in this post. Here, you argued that “the limited nature of the law is what made it appropriate and constitutional.” That implies that the mere presence of state law issues – as opposed to the absence of a federal one – would have rendered the law unconstitutional. Which, of course, is wrong. The statute could (and, IMO, should) have called on the court to revist all federal and state issues applicable to the case.

    In any event, despite the limited scope of the statute, I’m sure why you think there was no legitimate federal issue for the courts to consider that would have required more than a 90 minute mini-trial. I think a pretty decent argument can be made that clear and convincing evidence is required not only by the Florida statute, but also by the 14th Amendment. And if I’m right, the questions of Terri’s intent and her PVS state, if nothing else, should have been reviewed de novo by the federal courts. Maybe I’m right, or maybe I’m wrong, but we’ll never know because the federal judges let her starve to death before she ever got the trial the statute called for.

    Xrlq (c51d0d)

  14. X,

    You gotta read the post more carefully.

    1) You said:

    True, but it’s not what you said in this post.

    Yes, it is. I said:

    I would have had a very different opinion if I thought the law passed by Congress had required the federal courts to simply second-guess the Florida courts’ application of state law issues.

    You’re pretending the word “simply” wasn’t there. But it was and is.

    2) You said:

    In any event, despite the limited scope of the statute, I’m [not] sure why you think there was no legitimate federal issue for the courts to consider that would have required more than a 90 minute mini-trial. I think a pretty decent argument can be made that clear and convincing evidence is required not only by the Florida statute, but also by the 14th Amendment.

    But I said:

    I thought Judge Tjoflat (the dissenting judge in the denial of en banc review) articulated a plausible potential federal constitutional law violation: the failure of the state courts to properly apply a “clear and convincing” standard – a standard that may arguably be required under the federal Constitution.

    I said that argument might be a loser, and rejecting it is not outrageous — but I thought it was a plausible argument. How does that translate to my *not* thinking there was a legitimate federal issue? My position is that there may have been — and if there was, it’s the one that Judge Tjoflat identified.

    While it’s tempting to put stock in what Congress purports to have “meant” — at the expense of what they said — that’s not the law. I initially thought there would be enough of a federal issue there for the courts to issue a stay and have a judge take a second look at everything — but having read the opinions, I can’t say the 11th Circuit clearly got it wrong.

    And they certainly didn’t thumb their nose at Congress, and there should be no suggestion of impeachment — and there was, folks. There was. And it was irresponsible.

    But what do you expect from Tom DeLay?

    Patterico (756436)

  15. Paul,

    Sorry. I forget what your offer is.

    Patterico (756436)

  16. X:

    Toby, let’s just be clear about one thing: you don’t know WTF you are talking about. It’s all well and good to wax poetic about the “sacred” (whatever that is supposed to mean in a legal context) bond of marriage,

    That was me being a smartass, see, because I figure you’re all about the sanctity of marriage, so long as it’s strictly between a man and a woman, and only so long as the exercise of its legal privileges and responsibilities coincides with your religious attitudes. Am I off my mark?

    but it has nothing to do with the issue at hand, namely, did Terri Schiavo ask to be taken off of life support if incapacitated?

    That’s what the Florida courts determined. A long time ago. And, so, once again, we have people like you deciding that the authority and legitimacy of a state judiciary —most particularly in the case of a private individual whose fate was without any Federal ramifications— can be undermined by the Congress of the United States for the purpose of political theater. Is it possible that a conservative can fail to grasp the damage this has done to the principle of limited government? For whose benefit did “our” party make this extreme gesture?

    All the “sacredness” in the world does not affect the substantial likelihood that she did not.

    That’s lawyer-talk disguising a personal wish.

    No one has a right to kill anyone else. That the killer is the victim’s next of kin is immaterial. Scott Peterson was Laci’s next of kin, too.

    You can throw around your ignorant slanders and make stupid comparisons because, presumably, this didn’t happen to you. Were you a young married man whose wife’s bulimia caused her to have a heart attack that left her in a vegetative state? Did you spend years caring for her and even go so far as to become a registered nurse to better help her? It’s easy to dump on Michael Schiavo because it’s just a hypothetical. But you would expect the ideal reaction and miracles derived from therapy, even though it’s unreasonable and morbid to expect any improvement from a woman whose mind is completely gone from her body.

    It all comes down to what human dignity is. Your notions of this are different from mine. That’s all. And so to bed.

    Toby Petzold (cd28cf)

  17. A key component of politics is confusion, something inconsistent with logic. It is a mistake to try to make sense of the words coming out of DeLay’s mouth.

    Ladainian (91b3b2)

  18. I believe that Delay is wrong because personnell is not the problem, but rather that the judiciary and lawyers have gained so much power that the federal government and state governments are no longer democratic (small “d”) nor are they any longer republics. We now have a lawyer-ocracy or maybe a judicial-ocracy. Until there is constitutional change bringing checks and ballances back into our political system, the systemic tyranny by the judiciary is a given. Merely changing the members of the arrogant, anti-democratic judiciary will avail nothing.

    john (e6dc5c)

  19. Patterico:

    DeLay and other appear to argue that the clear intent of the law was that the courts determine the entire case anew. But that wasn’t what the law said.

    It wasn’t? But surely it was:

    “SEC. 2. PROCEDURE.

    Any parent of Theresa Marie Schiavo shall have standing to bring a suit under this Act. The suit may be brought against any other person who was a party to State court proceedings relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain the life of Theresa Marie Schiavo, or who may act pursuant to a State court order authorizing or directing the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life. In such a suit, the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings. The District Court shall entertain and determine the suit without any delay or abstention in favor of State court proceedings, and regardless of whether remedies available in the State courts have been exhausted.” [emphasis added]

    http://thomas.loc.gov/cgi-bin/query/D?c109:3:./temp/~c109VcEqvk::

    This is the version that passed both houses, was signed by the president, and became Public Law No: 109-3.

    In order to determine “de novo” whether any federal rights of Schiavo were violated, the federal district court would have had to call witnesses and reintroduce the evidence, along with any new evidence since Judge Greer decided the state case.

    Simply reading the trial transcript seems on its face to violate the bolded portion of the law above.

    Courts discern intent primarily from the plain language of the statute that is passed – and the plain language of this statute required a violation of Terri Schiavo’s federal rights before the federal courts could take any action.

    Okay. Didn’t the “plain language of the statute” require a de novo hearing? Yet none was granted: the district court decided solely on the basis of the transcript from the earlier proceeding.

    Dafydd

    Dafydd (df2f54)

  20. Dafydd:

    You placed part of the language in bold type. Allow me to emphasize another part:

    In such a suit, the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings.

    And what rights of hers were within the scope of the Act? Her federal rights:

    The United States District Court for the Middle District of Florida shall have jurisdiction to hear, determine and render judgment on a suit or claim by or on behalf of Theresa Marie Schiavo for the alleged violation of any right of Theresa Marie Schiavo under the Constitution or laws of the United States relating to the withholding or withdrawal of food, fluids or medical treatment necessary to sustain her life.

    The District Court was required to consider the claims de novo — but only claims of a violation of a federal right. That is not the same thing as requiring the court to “determine the entire case anew.” Just any claims based upon violations of the federal Constitution or federal statute.

    Patterico (756436)

  21. Thanks for being able to speak up honestly about the political mashing from the speaker. It looks as if DeLay has left behind any pretense of responsible leadership of the Republican party, and of the Congress, and what he is doing is a disservice to us all. I can’t regret that the Democrats look like paragons of respectability in contrast, but even an often partisan Democrat like me doesn’t want to see the country endangered by this precipitous balderdashery in the highest offices.

    Ruth (8aebe0)

  22. Isn’t the matter of Congressional subpoenas still out there too? Did not the Florida judge defy Congress in that sense? If one of us defied a judge in that fashion would be not be slapped at least with contempt of court? Or did Congress just say they were going to do the summons and never actually issue one?

    Dan S (b4ecc1)

  23. “We now have a lawyer-ocracy or maybe a judicial-ocracy. Until there is constitutional change bringing checks and ballances back into our political system, the systemic tyranny by the judiciary is a given.”

    You should read the concurrence in the last 11th circuit denial for a rehearing en banc.

    “Isn’t the matter of Congressional subpoenas still out there too? Did not the Florida judge defy Congress in that sense?”

    The subpoenas were withdrawn. Probably around time that congress got wind of the fact that they were acting against the wishes of the people.

    actus (f9abe0)

  24. Not sure if I’m being bold or stupid in wading into this, but there’s two points I’d like to make:

    (1) All the discussion of de novo this and de novo that seems to be somewhat off point to what happened. I don’t think the federal judge (and the appellate courts) ever ruled that they parents were not entitled to a de novo hearing, but rather that the parents were not entitled to relief (reinsertion of the feeding tube) prior to such a hearing due to the judge’s determination that the parents were unlikely to prevail at such a hearing. Isn’t this approach consistent with the way death sentence appeals are heard? Not every appeal automatically results in a stay of execution, only those deemed to have a glimmer of success. In both the Schiavo case and ‘traditional’ death penalty cases, there is always the possibility that the condemned could prove their argument after sentence was carried out – too late for them, which wouldn’t be good, but neither is the alternative of always granting a stay of sentence upon the filing of an appeal would preclude a death sentence from ever being carried out.

    (2) As for the general idea of impeaching judges, I’m all in favor of doing so.. but on grounds of incompetence, with incompetence defined as judges who are consistently overruled by appellate courts (trial judges overturned on appeal, or appellate judges overturned by either full circuits or the Supreme Court)… which wouldn’t apply in this case as the decisions of both the trial judge and the appellate judges were upheld on appeal.

    steve sturm (e37e4c)

  25. but it has nothing to do with the issue at hand, namely, did Terri Schiavo ask to be taken off of life support if incapacitated?

    That’s what the Florida courts determined. A long time ago.

    So what? Just because a gullible judge “determines” something doesn’t mean it’s true. Do you even know what that “determination” was based on? It’s about as credible as another court’s “determination” that O.J. never killed anybody.

    Xrlq (c51d0d)

  26. Patterico:

    I said that argument might be a loser, and rejecting it is not outrageous – but I thought it was a plausible argument. How does that translate to my *not* thinking there was a legitimate federal issue?

    That part doesn’t. What does is your conclusion that the courts didn’t thumb their noses at Congress by allowing her to starve/dehydrate to death before that question could even be litigated.

    You’re pretending the word “simply” wasn’t there. But it was and is.

    Great. But that doesn’t explain this statement:

    I have argued (in the postscript to this post) that the limited nature of the law is what made it appropriate and constitutional.

    What would have been so “limited” about a statute that required the federal courts to review all relevant issues, state and federal, de novo? It’s not the limitation that made the law constitutional, just the inclusion of a federal question. Excluding the state law questions was dumb.

    Xrlq (c51d0d)

  27. Good point, and yet is IS time to think about removing judges for extra-constitutional behavior in many other situations.

    Captain Mainline (7529b9)

  28. I’m coming late to this discussion with my .02. I’m not a lawyer — just the daughter of one. I heard portions of what DeLay said, but what stuck out to me wasn’t any mention of impeachment. It was his distress that we have a whole lot of arrogant, out-of-control and unaccountable judges in this country.

    I don’t know if I like DeLay or not, but I happen to agree with him on this issue.

    Ann (3953c4)

  29. Patterico,

    This case will be a historic landmark in constitutional law I believe. Yet, we have not considered that this is simply outside the constitutional construction of our legal system.

    For example, you have the “right” to breathe. Where do you get this right? Its based in the natural law upon which our constitution rests as stated in the preamble, “We the People ….”.

    The preamble makes it clear that the constitution is a construction of the people–that the sovereignty of the United States is derivative of the sovereignty of the people. Then the constitution goes about describing how the governmental system is constructed and how the constitution can be ratified and brought into effect–it is a grant of partial sovereignty from the people.

    The grant cannot be absolute–the people must retain some intrinsic sovereignty that as a minimum includes the natural right to life minus that which is ceded under the condition that due process is followed in the adjudication of capital offenses. The people must retain this natural right to life otherwise there could be no continuing constitutional government–the grant of partial sovereignty is a continuing grant over generations.

    So, given that reasoning, I posed this challenge to the law bloggers.

    I believe this is the critical question that will endure in the landmark studies of this case, not the procedural issues which were erroneously determined. This is a question of scope.

    Paul Deignan (2eb9f3)

  30. BTW, this case smells of small town corruption.

    Here we have Greer accepting election contributions from Felos, allowing Schiavo to pay Felos from the earmarked trust, Felos being on the board of directors of the hospice where Terri was moved to (a hospice for terminal patients) along with Rice, who himself hired Schiavo as Sheriff and later as state senator blocked a bill designed to save her.

    In the midst of this Greer ORDERS a quick execution of Terri while there are lucrative offers floating about for Schiavo to relinquish custody–a move that Greer and Felos make very difficult.

    At the same time, Greer refuses to recuse himself. The list of improprieties goes on.

    They all should be investigated. Greer in particular has demonstrated corrupt behavior and should be impeached.

    Paul Deignan (2eb9f3)

  31. Generally I have found your blog to be thoughtful, but in this case you simply seem to be a spokesman for the union (lawyers). Unable to grasp that you have mistated Delay and unable to grasp that the final authority that limits judges must be the people in their representatives, you simply confirm most peoples assumptions about the elitism and unreliabilty of attorneys.

    Arctic Fox (156555)

  32. Patterico:

    The District Court was required to consider the claims de novo – but only claims of a violation of a federal right. That is not the same thing as requiring the court to “determine the entire case anew.” Just any claims based upon violations of the federal Constitution or federal statute.

    Yes, I’m aware of that. I made exactly that same point — using exactly the same quotation you did — when I argued in another forum that the Congress was not infringing on the authority of the several states but rather protecting the federal rights of Terri Schiavo.

    But the point is, Congress required that the federal court conduct a de novo hearing in order to determine whether her federal rights had been violated — and they did not do so. They took no evidence whatsoever. The dissent in the decision of the 11th Circus Court to affirm the District Court ruling on this law made that clear.

    No court found Public Law 109-3 unconstitutional; one judge made the claim in dicta, but the appellate court did not strike down the law. Yet neither did any court obey it. They simply ignored it, as if the will of Congress is of no effect to the judiciary.

    You have not answered the basic question: does the term “de novo” have any meaning at all, or is it, too, of no effect? Not only the clear intent but the clear wording of the law duly enacted by Congress and the president were that the federal court shall (not may) hold a hearing on the issue anew, taking evidence, in order to determine whether a citizen of the United States has any right to life under, say, the Fourteenth Amendment, against the desire of the state of Florida to put her to death. Here is one possible grounds for the contention: was her right to due process denied when a single judge decided the facts of the case on the wrong standard — not “beyond reasonable doubt,” not even “clear and convincing,” but something even lower than that?

    Another possible grounds that could have been raised: was there an inherent problem in continuing to allow Michael Schiavo to serve as guardian of the person when he clearly had disassociated himself from Terri, divorcing her in all but name?

    If you now object that no such violations of due process were shown, then rem acu tetigisti, Patterico! Absent a de novo hearing, how could it possibly have been shown? The previous federal hearings considered only the question of whether there was any evidence at all by which Judge Greer could have arrived at his decision — they never heard original evidence whether Terri’s federal rights were violated.

    And now they never will. If the case is even pursued, which I doubt, they will dismiss it as moot, since she’s no longer sucking air.

    In a case as complex as this, with such a long judicial history, yet which was entirely dependent upon a series of factual determinations made at the very beginning by a single judge (she had no access to a jury, and in fact, no access to her own lawyer) — fact determinations that have been the precise subject of contention ever since they were first decided but which have never been evaluated for reasonableness by any appellate court since the day Judge Greer made them… what would have been the harm of one, single federal hearing as new, to see whether, in such a life-and-death case, Terri Schiavo’s federal constitutional and legal rights were violated?

    No prisoner would ever be executed in this country on the basis of fact determinations by the standard that the judge clearly used. A new trial would be ordered instead. But Terri, never convicted of any crime, did not receive any such justice.

    Greer speaketh, and judicial review can never second-guess his determinations of fact — no matter how questionable they may appear on their face.

    Dafydd

    Dafydd (df2f54)

  33. Patterico, consider this analogy.

    It’s 1962, and a white woman in Alabama is raped. Vigilantes grab the “colored” handyman who works on her property; they try to lynch him, but the local sheriff stops them and takes the man into custody instead.

    At trial, the sheriff claims, rather improbably, that he eyewitnessed the attack. The sheriff, it turns out, is a member of the same fraternal organization as the judge and spends many evenings with him.

    The mayor and the barber, both poker-buddies of the sheriff, also claim to have witnessed the attack. On the other side, two black friends of the defendant who are upstanding members of the local black community swear he was with them in a different town at the time; and a white taxi driver testifies that he dropped off the woman and the son of a city councilman at her house twenty minutes before she says the attack occurs.

    The defendant is bound and gagged throughout the trial. His attorney is appointed by the court… and is another poker buddy of the sheriff. The attorney calls those three witnesses but fails to call any others, engages in inept cross-examination of the state’s witnesses, and makes a feeble and half-hearted closing argument.

    No jury is requested… the PD says the defendant “doesn’t want one,” but the defendant is gagged, so the court takes the lawyer’s word for it. The judge determines that the defendant is guilty, remarking from the bench that he’s not 100% sure, but it sure seems likely that the kid committed the rape. The judge remarks that he doesn’t believe one of the black witnesses because he’s sure “that boy” was up before him in a previous trial… but later it develops that the judge was wrong, the witness has never been arrested — they just “all look alike” to that judge.

    The ACLU finally gets wind of this and files an appeal with the federal courts, alleging violation of the kid’s constitutional rights to a fair trial.

    Patterico… wouldn’t the most likely outcome be that the District Court or the Circuit Court would overturn the state court’s verdict and order a new trial, probably in a different venue? Certainly, we would all agree that it would be a monstrous injustice and constitutionally violative were the federal courts simply to rule that, since there was testimony by which the judge could have made his decision, that therefore their hands were tied: nobody could ever take a second look at the trial itself and say the facts themselves were improperly decided, or the wrong standard was used, or there was improper conflict of interest on the judge’s part, or the defendant was not allowed to properly defend himself, or that he should have been allowed to request a jury, or all of the above?

    Fine. Does a woman accused only of incapacitation have fewer rights than a defendant accused of a heinous crime?

    (Oh, and if your response is going to be that the difference is that race is a factor, then simply change all the blacks to whites… now would such a trial be okay?)

    Dafydd

    Dafydd (df2f54)

  34. No court found Public Law 109-3 unconstitutional; one judge made the claim in dicta, but the appellate court did not strike down the law. Yet neither did any court obey it.

    Minor quibble: it wasn’t dicta. But it was the opinion of only one judge out of 12, so it didn’t really matter, either.

    Xrlq (6c76c4)

  35. Generally I have found your blog to be thoughtful, but in this case you simply seem to be a spokesman for the union (lawyers). Unable to grasp that you have mistated Delay and unable to grasp that the final authority that limits judges must be the people in their representatives, you simply confirm most peoples assumptions about the elitism and unreliabilty of attorneys.

    Now, now. While I agree that Patterico is wrong on this issue – both in coming down too hard on DeLay and in not coming down hard enough on the judges – I don’t think it’s fair to question his sincerity. He’s wrong on this, IMO, but he’s sincerely wrong, so what say we try to disagree without being disagreeable.

    Then again, I’m a member of the same union (two of them, actually), so lest you interpret my response as another example of union members banding together, let me assure you that if it were up to me, at least two of my union brothers, Felos and Greer, would have lost their union cards over this affair, and a third, Judge Whittemore, would be in severe danger of losing his, as well. I’d probably let Judge Birch off with a warning, five years’ probation, and the loss of his MCLE exemption during that probationary period. [MCLE = “mandatory continuing legal education,” a boondoggle of a requirement most bar members, but not judges, are required to comply with.]

    Xrlq (e2795d)

  36. Paul Deignan says, “This is a question of scope.”
    Exactly right. While the lawyers argue about procedure, I would argue there are areas of life and our society into which our courts should not intrude because they have neither the expertise to judge, nor do they have the knowledge, skill and competence to judge those who have expertise.
    This would include, but not be limited to certain problems of science, medicine and the environment.
    There might have been a time when our judges and courts contained the brightest and most competent people in our society and they could judge on everything that came before them and get it right most of the time. That time is gone.
    Our courts cannot judge by what is in the law books. It’s not there.
    It’s time for the courts to rely upon courts of arbitration with experts in the field of contest.
    It’s time for the courts to limit themselves or be limited.

    Boman (54daf3)

  37. In reference to courts of arbitration – it might be argued that such courts would be just that much further from the reach of the people, that they would contain experts who are not sensitive to the needs of our society.
    Such courts need not be government agencies. They could be courts that obtain power and prestige because of the scope of their expertise and the quality of their rulings.
    In other words, why do we choose the things we buy in our society? Is it not because we have found them worthy of purchase? So, why couldn’t we be allowed to buy the best kind of arbitration, rather than what we are forced to accept in the form of our courts because that’s what the law allows.
    You might say that we’re not forced to go to court. If we’re taken to court, then we’re forced to it. That’s where the court could say, “We’re not going to take your case. Go to arbitration”.
    That could be wise, less expensive and more likely to obtain a competent ruling.
    So, why don’t the courts do more of that? Because they’re not allowed to do so?
    Then the law needs to be changed.

    Boman (54daf3)

  38. Re Patterico’s comment no. 14–splitting infinitives OK now? “I would have had a very different opinion if I thought the law passed by Congress had required the federal courts to simply second-guess the Florida courts application of state law issues.”

    [When did I oppose splitting infinitives? — Patterico]

    Hal Hopp (fccc98)

  39. I goofed–you were on the side of splitting an infinitive when called for by the occasion, it was some law firm partner for whom you worked who thought otherwise.

    Hal Hopp (85e056)

  40. Re No. 4, “Impeaching judges will never happen no matter who tries.” DeLay’s in pretty good company: Thomas Jefferson had Supreme Court Justice Samuel Chase impeached, and for his conduct of two treason trials as a circuit judge. A majority in the Senate voted to convict, but not the two-thirds necessary. If Jefferson had succeeded, I’d suggest we’d have a healthier democracy, and a judiciary with a healthier respect for the other branches of government.

    Karl Maher (3501e1)


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