Patterico's Pontifications

4/17/2005

The Power of the Jump™: If David Savage Covered the Supreme Court in 1973

Filed under: Dog Trainer,Humor,Judiciary — Patterico @ 9:04 pm

(Note: “The Power of the Jump”™ is a semi-regular feature of this site, documenting examples of the Los Angeles Times’s use of its back pages to hide information that its editors don’t want you to see.)

Here is today’s Page A1 L.A. Times story, as it would have been written in 1973. I have left unchanged the headline and the sub-headline. The opening paragraph and much of the other language is substantially the same:

Judges Battle Transcends Numbers

Republicans already rule most federal courts. The issue is how far right the GOP can take them.

By David G. Savage, Times Staff Writer

WASHINGTON — The looming battle over judicial nominees probably won’t make much difference in the federal courts. That’s because Republican appointees already dominate them.

For example, currently, six of the nine seats on the U.S. Supreme Court have been filled by Republican appointees. The Chief Justice of the Supreme Court has been a Republican appointee for two decades. And for more than a decade, the two intellectual leaders of the Supreme Court were Republican appointees. One of those men has been replaced by yet another Republican appointee, and the other remains on the Court, and is still considered one of its most influential members.

Though it remains a staple of conservative rhetoric that the courts are “out of control” and driven by “liberal activists,” the GOP’s control of the Supreme Court has given Republicans — if not conservatives — a firm grip on the federal judiciary. Although many conservatives have complained about decisions issued this year, the most important decision of the year was written by yet another Republican appointee.

It is true that party labels don’t necessarily mean much on the bench. For Republicans, that has become especially clear as the party has moved further to the

[See Judges, Page A32]

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A Legal Argument Why the Federal Courts Should Have Granted the Schiavo Injunction

Filed under: Court Decisions,Schiavo — Patterico @ 4:32 pm

The Terri Schiavo case is over, but it continues to have importance to the looming battle over judicial confirmations. For example, in a commentary titled Latest Assault on Judges Threatens Rule of Law, University of Chicago law professor Cass Sunstein argued:

The problem, as the legal battle over Terri Schiavo demonstrated, is that whatever their politics, judges are unlikely to ignore the law. In that case, the law clearly did not authorize federal judges to order Schiavo’s feeding tube reinserted — but some Republicans are outraged that the judges did not have it reinserted anyway.

Sunstein is wrong. The law clearly did authorize federal judges to order Schiavo’s feeding tube reinserted. The courts got it wrong.

The courts’ fundamental error was brushing aside the Schindlers’ meritorious argument that the Due Process Clause of the Constitution requires a showing of clear and convincing evidence for the withdrawal of a feeding tube under these circumstances.

If the Constitution requires a clear and convincing evidence standard, that changes everything. It means that the question whether that standard was met is a federal issue rather than a purely state law issue. And that means that the federal courts were required to take a fresh look at whether the evidence was sufficient under that standard.

I do not believe this means a new evidentiary hearing was required. But, at a minimum, such a determination would require the federal district court to comb through a mountain of transcripts from various proceedings — something Judge Whittemore could not possibly have done in the few hours that he allowed himself to decide the Schindlers’ final claims.

The extended entry discusses the Schindlers’ claim that the federal Constitution requires “clear and convincing evidence” of the patient’s wishes in a case like that of Terri Schiavo. It analyzes how that claim was cavalierly dismissed by the federal courts. It also explains why this was, indisputably, a solid claim that justified the reinsertion of the feeding tube while the merits of the claim were reviewed.

[NOTE: This post is about a legal issue. I welcome any comments about the soundness of my arguments. But any comments that revisit tired arguments about the facts of the Schiavo case will be unceremoniously deleted. You have been warned.]

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Schiavo Original Documents and Testimony

Filed under: Schiavo — Patterico @ 11:32 am

I have discovered a fascinating resource for those still interested in the facts of the Terri Schiavo case. It is a website that contains much original material from the case, including documents and transcripts of testimony that I haven’t seen anywhere else.

There are excerpts of Michael Schiavo’s testimony at the trial over her wishes, here. The excerpts contain all of his direct testimony, and the beginning of the cross-examination. Here are some of the excerpts I found interesting:

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