DeLay’s Talk About Impeaching Judges Is Outrageous and Wrong
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.