Ideal System...Schiavo as an illustration
 

In a case such as the Schiavo case, which part of our government should be last to act? Which branch of government should be the final arbiter of what happens?

For those who think the president (or governor) should step in...is that just for 1 case with particularly difficult facts, or is that in all cases?

Should we have the legislature essentially overruling court decisions...again, just for this case or in all cases?

The Schiavo case is highlighting a few important issues for us to consider - the life and death issues are the most obvious. However, it also highlights what I consider to be a bastardization of the system (or at least an attempted bastardization of the system.)

Re: Ideal System...Schiavo as an illustration
 

I think the judicial system should decide, but on the condition that they interpret the law, which is their job. There was a law passed that asked that this case be given de novo review and that didn't happen. So we have the judicial branch defying both the legislative and executive branches at both a state and federal level.

Re: Ideal System...Schiavo as an illustration
 

Congress makes the laws

The executive enforces the laws

The courts interpret the laws

I see no conflict in the Schiavo case. If Congress doesn't like the court's interpretation they can revise and create new laws. This has been done many many times, and as the democratically elected body, this is good and right. The check on Congress is the difficulty of getting a majority together to pass a law.

The courts should try to interpret honestly and objectively, rather than try to make their own laws. Many courts fail in this, and this is a problem that needs to be corrected.

The decision of what the law should be should belong to the political branches. The courts should only clarify the truly fuzzy areas.

Re: Ideal System...Schiavo as an illustration
 

[ QUOTE ]
There was a law passed that asked that this case be given de novo review and that didn't happen.

[/ QUOTE ]

Yes, but that isn't the procedure for the relief sought by the parents in the federal action(Temporary Injunction.) The procedure for a temporary injunction has to be truncated, because by its very nature actions seeking temporary relief are time sensitive and a de novo review is not possible.

Re: Ideal System...Schiavo as an illustration
 

[ QUOTE ]
The courts should try to interpret honestly and objectively, rather than try to make their own laws. Many courts fail in this, and this is a problem that needs to be corrected.

[/ QUOTE ]

The blanket, ridiculous critical statements about the judicial system seem keep proliferating.

My friend, your statement is not accurate. "Many courts" do not fail to enforce the law as written. You will find that it is the most unusual circumstance that would have a court doing so, and that court would be reversed on appeal, every time.

The problem is not the courts. It is with a Congress or a legislature that, for political purposes, passes vague laws. They then throw it into the laps of the courts to interpret the law and try to figure out what the legislature intended. In this manner, the legislature avoids taking an overtly unpopular opinion, and can point the finger at the courts when they necessarily reach the unpopular conclusion.

Don't fault the courts. Fault your lawmakers for not passing clear bills.

I don't fault you or the others for such statements, however. The genesis is the cabal that loves to scream about "activist judges" and blames the judicial system every time there is a ruling that they don't like. It's all a fiction. If you don't like a ruling, criticize the rationale, but don't criticize the courts. The rule of law requires that our elected officials foster respect for the judicial process. Unfortunately, some of them don't do so, and that's a dangerous thing.

Re: Ideal System...Schiavo as an illustration
 

Sure, Congress deserves some blame for nonclarity, but judges are political decision makers all the time.

It is not an accident that the 9th Circuit gets overruled by he Supreme Court all the time - they don't follow the precedents and insist on making decisions based on their own personal beliefs.

Courts "find" new rights and "hidden" provisions in long standing laws all the time, much more than can be explained from fuzzily worded laws.

Judges must earn the respect they feel they are due, by acting like judges instead of like politicians.

Re: Ideal System...Schiavo as an illustration
 

[ QUOTE ]
It is not an accident that the 9th Circuit gets overruled by he Supreme Court all the time - they don't follow the precedents and insist on making decisions based on their own personal beliefs.


[/ QUOTE ]

Do you have anything to back that claim up?


Some stats I could find (didn't spend much time)
2002 term:
9th circuit cases to the US Supreme court: 30% of court's total cases; 30% of the overturned cases --- exactly what you would expect.

The overall reversal rate was lower in the 9th Circuit than the 4th, 5th, 8th and 10th circuits.

I haven't found in my cursory look any broader statistics that look at more than 1 term...it would be interesting to see.

Re: Ideal System...Schiavo as an illustration
 

[ QUOTE ]
It is not an accident that the 9th Circuit gets overruled by he Supreme Court all the time - they don't follow the precedents and insist on making decisions based on their own personal beliefs.

[/ QUOTE ]

This is misleading. Yes the 9th Circuit is the most overturned of the circuits. But the number of times even it is reversed is miniscule. In 2002 (the year I could most easily find data for on the internet), the 9th Circuit decided about 5100 cases. The Supreme Court reversed it 24 times. Do you think that means the Supreme Court reverses the 9th Circuit "all the time"? I don't.

[ QUOTE ]
Courts "find" new rights and "hidden" provisions in long standing laws all the time, much more than can be explained from fuzzily worded laws.

[/ QUOTE ]

Nonsense, particularly with reference to "all the time". You need to stop believing what you hear from those who love to bash the judicial system. It's all exaggeration. And if you stop to think about it, you'd realize that it's ridiculous.

Re: Ideal System...Schiavo as an illustration
 

[ QUOTE ]
"Many courts" do not fail to enforce the law as written. You will find that it is the most unusual circumstance that would have a court doing so, and that court would be reversed on appeal, every time.

[/ QUOTE ]
Wouldn't the very nature of a reversal due to an appeal mean the lower court made a mistake in interpreting the law (in a lot of cases, not all mind you)?

Re: Ideal System...Schiavo as an illustration
 

All three branches of the federal government are too powerful as it is. This should be handled at the state level. Now if only we could get our representatives to represent he will of the people.

Judiciary Under Attack?
 

Scary. I got a little worried when some folks in Florida started asking Jeb Bush to ignore the court order. After looking at this law Congress passed it was probably unconstitutional but don't know for sure.

Re: Judiciary Under Attack?
 

[ QUOTE ]
After looking at this law Congress passed it was probably unconstitutional but don't know for sure.

[/ QUOTE ]

I don't know either. It's certainly extraordinary and goes against the spirit of the constitution. However, I doubt that it was technically unconstitutional.

The Law Congress Passed Regarding Terri Schiavo
 

Text of the Law

For the relief of the parents of Theresa Marie Schiavo.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
Related Links:
The Terri Schiavo Case

Powers of Attorney, Living Wills, and Advance Directives

Lawyers in the Case

Health Care Lawyers

Wills, Trusts, and Estate Planning Lawyers



SECTION 1. RELIEF OF THE PARENTS OF THERESA MARIE SCHIAVO.


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.

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.

SEC. 3. RELIEF.


After a determination of the merits of a suit brought under this Act, the District Court shall issue such declaratory and injunctive relief as may be necessary to protect the rights of Theresa Marie Schiavo under the Constitution and laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.

SEC. 4. TIME FOR FILING.

Notwithstanding any other time limitation, any suit or claim under this Act shall be timely if filed within 30 days after the date of enactment of this Act.
SEC. 5. NO CHANGE OF SUBSTANTIVE RIGHTS.

Nothing in this Act shall be construed to create substantive rights not otherwise secured by the Constitution and laws of the United States or of the several States.
SEC. 6. NO EFFECT ON ASSISTING SUICIDE.

Nothing in this Act shall be construed to confer additional jurisdiction on any court to consider any claim related--
(1) to assisting suicide, or
(2) a State law regarding assisting suicide.

SEC. 7. NO PRECEDENT FOR FUTURE LEGISLATION.

Nothing in this Act shall constitute a precedent with respect to future legislation, including the provision of private relief bills.
SEC. 8. NO AFFECT ON THE PATIENT SELF-DETERMINATION ACT OF 1990.

Nothing in this Act shall affect the rights of any person under the Patient Self- Determination Act of 1990.
SEC. 9. SENSE OF THE CONGRESS.

It is the Sense of Congress that the 109th Congress should consider policies regarding the status and legal rights of incapacitated individuals who are incapable of making decisions concerning the provision, withholding, or withdrawal of foods, fluid, or medical care.


Bill of Attainder? I don't have an informed opinion but would like to know from those that do have one if they feel inclined. Here's a link to some info on the Bill of Attainder I dug up.

Bill of Attainder

Seems like this law could be based on:

"The Bill of Attainder Clause was intended not as a narrow, technical (and therefore soon to be outmoded) prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function or more simply - trial by legislature." U.S. v. Brown, 381 U.S. 437, 440 (1965).



Haven't had a chance to read the Supreme Court rulings cited but I will. TIA for any input.

Update I guess this shows how naive I am but I was totally surprised that this law was written for Terri Schiavo only.

Re: The Law Congress Passed Regarding Terri Schiavo
 

[ QUOTE ]
"The Bill of Attainder Clause was intended not as a narrow, technical (and therefore soon to be outmoded) prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function or more simply - trial by legislature."

[/ QUOTE ]

This is probably true. However, the founding fathers could have (should have) used broader language if that's what they wanted to implement. Instead they chose a narrow term with a narrow definition.

Re: Ideal System...Schiavo as an illustration
 

There was a law passed that asked that this case be given de novo review and that didn't happen. So we have the judicial branch defying both the legislative and executive branches at both a state and federal level

Exactly right.

Re: Ideal System...Schiavo as an illustration
 

The problem in this case was not an inability of the courts to determine what the legislative enactments called for. They simply refused to follow them at both the state and federal level.

Re: Ideal System...Schiavo as an illustration
 

[ QUOTE ]
There was a law passed that asked that this case be given de novo review and that didn't happen. So we have the judicial branch defying both the legislative and executive branches at both a state and federal level

[/ QUOTE ]

I don't want to get overly bogged down in an argument about the process, but let me just add to this.

The federal law specifically applicable to Terri was silent as to what the standard for a Temporary Injunction would be. The general standard for a Temporary Injunction is, partly, that the moving party has to establish a substantial likelihood of success on the merits of the case. Basically, this means that the court will temporarily require a party to do something so as to avoid irreparable harm where the moving party will likely win anyway.

The Schindler's moved for a Temporary Injunction. The court followed the law by applying the Temporary Injunction standards.

The De Novo review standard only comes into play when there is a full trial on the merits, not in a hearing on temporary relief.

Re: Ideal System...Schiavo as an illustration
 

"The De Novo review standard only comes into play when there is a full trial on the merits, not in a hearing on temporary relief."

Precisely the reason why the standard applied with respect to the TRO is wrong. No way a final non-appealable resolution of the case comes about prior to Terry's having already died.

Re: Ideal System...Schiavo as an illustration
 

Only an activist court would change existing law for one case. If the legislature wanted to do that, they could have. The existing law for a temporary injunction is that you have to prove a substantial likelihood of success on the merits.

Re: Ideal System...Schiavo as an illustration
 

[ QUOTE ]
[ QUOTE ]
The courts should try to interpret honestly and objectively, rather than try to make their own laws. Many courts fail in this, and this is a problem that needs to be corrected.

[/ QUOTE ]

The blanket, ridiculous critical statements about the judicial system seem keep proliferating.

.

[/ QUOTE ]

He means, they should rule according to my beliefs. Courts doing that are working honestly and objectively. If they rule against my set of beliefs, then they are "making their own laws" and are activist bastards.

Re: Ideal System...Schiavo as an illustration
 

Whatever the "usual" standard in the case of a TRO may be, in this case in particular the standard you suggest does not work. It is a standard judicial axiom that you do not interpret laws in such a manner that they will be rendered meaningless. The fact that the legislation provided for a de novo review of this case coupled with the fact that Terry would die prior to any final resolution of the matter make the standard used by the court inappropriate.

Given the unique nature of this case I fail to see why "precedents" of more general TRO cases apply here. What would be interesting is the question of whether there was a case where such a standard was applied when a stay of execution in a capital case was requested and denied PRIOR to any federal review of the case where federal jurisdiction was proper.

I'll acknowledge that your position on this matter happens to currently be the law in the federal circuit that Florida sits by virtue of the opinion of 2 out of 3 judges. I, for one, found the opinion of the dissenting justice and the arguments supplied by the same to be more compelling. I also suspect that there are many federal judges that would also agree.

Re: Ideal System...Schiavo as an illustration
 

[ QUOTE ]
It is a standard judicial axiom that you do not interpret laws in such a manner that they will be rendered meaningless

[/ QUOTE ]

Right, and the law wouldn't be meaningless --- it would fit (as all new laws do) within the confines of larger processes and laws. The family could (and would) have had a full de novo hearing had they met the Temporary Injunction standards. You just want special new rules created for this particular case --- essentially asking for an activist court to ignore existing precedent and law. Fortunately, the judge's in this case have consistently had more self-control and integrity than their respective legislatures and executive branch actors.

Re: Ideal System...Schiavo as an illustration
 

You speak of precedents where there are none - this is a unique case. And the law becomes meaningless without the grant of injunctive relief - news flash - Terry Schiavo will die without it, so what purpose in your mind is served by the law congress enacted last weekend?

Question: If congress passes a law requiring review of a death penalty case (which case was never reviewed by the federal courts in the first place) and a federal judge stays a state execution scheduled for a few days following the enactment of the new federal law using the logic of the dissenter in the Schiavo case - in your mind is that judge being an "activist" judge or following the law?

Re: Ideal System...Schiavo as an illustration
 

"Fortunately, the judge's in this case have consistently had more self-control and integrity than their respective legislatures and executive branch actors. "

I also suspect that many judges see themselves in this same arrogant light. This is why many see the judiciary as being out of line. This case is yet another example of this. If the Florida legislature were to now enact legislation that provides for a "no will/no kill" standard in cases such as these (a standard other states have adopted), my guess is the SCOFLAW would see themselves as having authority to pass on the constitutionality of such laws which are plainly nonjusticiable.

The reputation that the courts are getting for "legislating from the bench" is well earned, notwithstanding the fact that some posters here seem to find such claims tiresome and overstated. Quite simply, they are not.

Re: Ideal System...Schiavo as an illustration
 

[ QUOTE ]
You speak of precedents where there are none - this is a unique case. And the law becomes meaningless without the grant of injunctive relief - news flash - Terry Schiavo will die without it, so what purpose in your mind is served by the law congress enacted last weekend?

[/ QUOTE ]



After temporary relief is granted a full de novo review of the case is held at the district court level.

There is precedent for what standards to apply for a temporary injunction. Just because this case is somewhat unique (though similar to a capital case) doesn't mean that the precedent doesn't apply. I will say, once again, that if congress wanted a different temporary relief standard, they could have legislated one. They didn't.

[ QUOTE ]
Question: If congress passes a law requiring review of a death penalty case (which case was never reviewed by the federal courts in the first place) and a federal judge stays a state execution scheduled for a few days following the enactment of the new federal law using the logic of the dissenter in the Schiavo case - in your mind is that judge being an "activist" judge or following the law?

[/ QUOTE ]

It depends on if they were following existing law and precedent. If the standard for a temporary stay were met, then they would not be an activist judge.

Re: Ideal System...Schiavo as an illustration
 

[ QUOTE ]
The reputation that the courts are getting for "legislating from the bench" is well earned...

[/ QUOTE ]

just a tad bit ironic coming from someone who wanted the federal courts to change the temporary injunction standards for this particular case.

[ QUOTE ]
I also suspect that many judges see themselves in this same arrogant light.

[/ QUOTE ]

I hope they do. If they are the only ones following the law and the ideals and principles of the founding documents, then they should be very proud of themselves (if not a bit arrogant.)

[ QUOTE ]
If the Florida legislature were to now enact legislation that provides for a "no will/no kill" standard in cases such as these (a standard other states have adopted), my guess is the SCOFLAW would see themselves as having authority to pass on the constitutionality of such laws which are plainly nonjusticiable.


[/ QUOTE ]

Of course they have the right to pass on the constitutionality of it. That's their job. If Florida wants to require a living will, then they should do it through the legislature. If the legislature doesn't do that and they maintain that people's intentions if not documented in a living will can be found from past statements, then people should stop bitching about "hearsay" evidence proving intent.

Re: Ideal System...Schiavo as an illustration
 

"It depends on if they were following existing law and precedent. If the standard for a temporary stay were met, then they would not be an activist judge."

I submit that the standard you suggest should be applied, based upon "precedent," could never be met - neither in the Schiavo case nor in my hypothetical. The basis for the court's determination in Schiavo that there was not a substantial likelihood of prevailing on the merits was based upon the fact that other Florida state courts had passed on the law. Such would always be the case in my hypothetical, as otherwise federal intervention would not be necessitated in the first instance. For that reason I think the federal law was rendered meaningless by the courts refusal to allow injunctive relief (i.e. the de novo standard itself had no meaning based upon the court's analysis - it was a moot portion of the new law by the court's application of the standard they applied).

I think we both see where the other is coming from, though, so let's just agree to disagree.

I would be curious whether there were any cases comparable to my hypothetical in a capital case, though. My guess is the answer is no, but just curious if you were aware of any.

Re: Ideal System...Schiavo as an illustration
 

"Of course they have the right to pass on the constitutionality of it. That's their job."

I disagree. If the legislature makes the determination that a "no will/no kill" standard is necessary to ensure that an individual's right not to be deprived of life without due process of law is maintained, why are judges (possibly unelected and not subject to accountabillity of the people in the district they serve) uniquely qualified to find otherwise.

Re: Ideal System...Schiavo as an illustration
 

Because that is part of the checks and balances that we have in our sytem. Them being unelected is a plus. You (at least I) don't want the meaning of what is constitutional being directly based on what is popular. Granted, judges still are influenced by the outside, but to a much lesser extent than elected officials.

Re: Ideal System...Schiavo as an illustration
 

"just a tad bit ironic coming from someone who wanted the federal courts to change the temporary injunction standards for this particular case"

Again, I don't see the courts as "changing" anything. This case was decided wrongly based upon standards of judicial interpretation which are applied in the here and now. The fact that you disagree with my opinion as to the proper manner for resolving this case does not mean I advocate what you perceive to be "judicial activism."

Re: Ideal System...Schiavo as an illustration
 

Wisdom of Judiciary >>>>>>> Wisdom of guy posting on poker forum.

Re: Ideal System...Schiavo as an illustration
 

[ QUOTE ]
There was a law passed that asked that this case be given de novo review and that didn't happen. So we have the judicial branch defying both the legislative and executive branches at both a state and federal level.

[/ QUOTE ]


hahahahahahahahahahahaha. Good one.

Re: Ideal System...Schiavo as an illustration
 

[ QUOTE ]
I submit that the standard you suggest should be applied, based upon "precedent," could never be met - neither in the Schiavo case nor in my hypothetical. The basis for the court's determination in Schiavo that there was not a substantial likelihood of prevailing on the merits was based upon the fact that other Florida state courts had passed on the law. Such would always be the case in my hypothetical, as otherwise federal intervention would not be necessitated in the first instance. For that reason I think the federal law was rendered meaningless by the courts refusal to allow injunctive relief (i.e. the de novo standard itself had no meaning based upon the court's analysis - it was a moot portion of the new law by the court's application of the standard they applied).

I think we both see where the other is coming from, though, so let's just agree to disagree.

I would be curious whether there were any cases comparable to my hypothetical in a capital case, though. My guess is the answer is no, but just curious if you were aware of any.

[/ QUOTE ]

Nonsense. From Robinson v. Crosby, 358 F.3d 1281: " For these reasons, the district court properly dismissed Robinson's § 1983 complaint for lack of jurisdiction. Accordingly, this Court concludes that Plaintiff Robinson has not shown a substantial likelihood of success in his appeal of the district court's dismissal of his § 1983 lawsuit for lack of jurisdiction. Therefore, we deny Robinson's Motion for a stay of execution pending appeal and pending Nelson."

See also In re Holliday: "We consider four factors in determining whether a stay of execution is appropriate under 28 U.S.C. § 2251: '{W}hether the movant has made a showing of likelihood of success on the merits and of irreparable injury if the stay is not granted, whether the stay would substantially harm other parties, and whether granting the stay would serve the public interest.' Bundy v. Wainwright, 808 F.2d 1410, 1421 (11th Cir.1987)"

Note that in Holliday the standard was met, so it is hardly "impossible".

More to the point: Exactly what "de novo" review do you think did not happen? What claim should the federal courts have considered "de novo" that they did not so consider?

Re: Ideal System...Schiavo as an illustration
 

This insight coming from some guy posting on a poker site.

Re: Ideal System...Schiavo as an illustration
 

Neither of these "precedents" compelled the Florida federal courts to deny the injunctive relief sought in this case.

The opinion of the dissenter at the appellate court level was more compelling than the majority opinion as well as better in line with the legislative intent of the law in question.

Also, precisely what harm would have come from reinsertion of the feeding tube pending the review at the federal level that was contemplated by the law in question - i.e. other than supposedly "following the law"?

Re: Ideal System...Schiavo as an illustration
 

[ QUOTE ]
Neither of these "precedents" compelled the Florida federal courts to deny the injunctive relief sought in this case.

[/ QUOTE ]
These precedents speak to your "hypothetical".

[ QUOTE ]
The opinion of the dissenter at the appellate court level was more compelling than the majority opinion as well as better in line with the legislative intent of the law in question.

[/ QUOTE ]

"More compelling"? Why? Because it supported your preferred result? "Legislative intent"? As determined by what? HINT: The primary indicator of "legislative intent" is the words the legislature used in the statute in question.

[ QUOTE ]
Also, precisely what harm would have come from reinsertion of the feeding tube pending the review at the federal level that was contemplated by the law in question - i.e. other than supposedly "following the law"?

[/ QUOTE ]

What does this have to do with anything? But I will answer your question if you will answer mine: What claim, exactly, do you believe was supposed to get "de novo" review by a federal court and did not, in fact, get such review?

Re: Ideal System...Schiavo as an illustration
 

Well let's start by answering your question, b/c I am curious as to what the harm would be in permitting the federal courts to actually review the case in question in a manner which would be meaningful were the Schindlers to ultimately prevail:

One possible de novo claim would come under the Fourteenth Amendment - the state of Florida had denied Terry Schaivo's right to life without due process of law. Note that for these purposes this claim does not have to be a winner, it is just representative of the type of claim that the new federal law would permit the Schindlers to bring and for which de novo review would be applied - and absent a determination that the federal law was unconstitutional, the federal court should operate on the assumption that such a claim could, in fact be brought.

I was unable to locate online the "In re Holliday" case (if you could provide me a link or the actual cite of the case that would be great), but in looking at the other, it was clearly not a precedent which dealt with the hypothetical I described. The hypothetical I was looking for was a situation where a federal court, having been giving jurisdiction to newly consider whether a defendant's rights have been violated, would deny a request to stay an execution in a case where the defendant in question NEVER had the opportunity to bring claims he was permitted to bring under that federal law. The Robinson case involved a defendant who, as would be expected, had previously brought his case through the federal courts and lost on the merits. As such, it is not remotely on point, and doesn't address the fundamental complaint I have with the decision of the court; namely, that an injunction was requested so that the family would be able to bring an action in the federal courts to determine if any of her rights were violated (no such action had been brought - the law which provided the family with the right to bring any such actions was passed the day the injunction was requested) - by denying the injunctive relief that was requested, the family would not be able to bring such an action b/c Terry would die prior to any resolution of such claims. As such, the court effectively rendered the law meaningless, as the law serves no purpose to a dead Terry Schaivo. It is also the reason the dissenting opinion is more compelling to me; it gives the family the right to bring a federal claim of action that the law provided for, and as I have previously explained, for purposes of ruling at the point when the court ruled, two things should have been taken as a given: (a) that the newly enacted federal law was constitutional and (b) that the law was meant to serve some purpose. I would have been fine with the federal courts ultimately determining that Florida's handling of the case was conducted such that Terry's due process rights were not violated - that is, if, in fact, the court actually ever considered this issue. I suspect that such would have been the likely outcome and probably should have been.

Unfortunately, no claims were brought at the federal level in respect of a law which was passed less than 2 weeks prior to her actually dying simply because the federal courts rendered a decision which for all intents and purposes mooted the newly enacted federal legislation. It is also why I find odd your contention that I need to identify for you what "claims" should be subject to de novo review - the federal courts, in rendering the opinions it did, prevented any such "claims" from being passed on at all.

Re: Ideal System...Schiavo as an illustration
 

[ QUOTE ]
This insight coming from some guy posting on a poker site.

[/ QUOTE ]

Actually, it's rather simple. It takes one idiot to recognize another. I know my shortcomings. The slew of Oliver Wendell Hellmuth's on this site is amazing.

Can you imagine Justice Warren on 2+2? Discussing how Brown v. Board be bad 'law' but is necessary as a practicality for society to move forward...and then jumping over to OOT and voting on whether he'd give Shana Hiatt a rimjob.

Actually, a rather interesting question...

Re: Ideal System...Schiavo as an illustration
 

"Actually, a rather interesting question... "

The question itself or how the good justice would vote?

Re: Ideal System...Schiavo as an illustration
 

[ QUOTE ]

One possible de novo claim would come under the Fourteenth Amendment - the state of Florida had denied Terry Schaivo's right to life without due process of law. Note that for these purposes this claim does not have to be a winner, it is just representative of the type of claim that the new federal law would permit the Schindlers to bring and for which de novo review would be applied - and absent a determination that the federal law was unconstitutional, the federal court should operate on the assumption that such a claim could, in fact be brought.

[/ QUOTE ]


But, in fact, such a claim *was* brought. Indeed, it is this claim that was at the heart of the Schindler's first federal suit. And the District Court looked at *this claim* (and the others that were brought). And it did it "de novo" -- the District Court properly did not consider any prior adjudication of *THIS CLAIM*. So, in fact, the district court did exactly what you seem to be saying the law required it to do.

[ QUOTE ]

I was unable to locate online the "In re Holliday" case (if you could provide me a link or the actual cite of the case that would be great), but in looking at the other, it was clearly not a precedent which dealt with the hypothetical I described. The hypothetical I was looking for was a situation where a federal court, having been giving jurisdiction to newly consider whether a defendant's rights have been violated, would deny a request to stay an execution in a case where the defendant in question NEVER had the opportunity to bring claims he was permitted to bring under that federal law. The Robinson case involved a defendant who, as would be expected, had previously brought his case through the federal courts and lost on the merits.


[/ QUOTE ]

I believe that you are changing your hypothetical, but let's set that aside. Tom Delay and his pals in Congress don't go around giving death row inmates new rights, so there isn't going to be anything precisely equivalent. The closest analogues will be cases involving newly announced Supreme Court decisions that death row inmates will say present new claims appropriate for federal review. Robinson was such a case (Robison was a state prisoner, btw, his "new" claim involved the constitutionality of the FORM of his execution, and that claim was never adjudicated in federal court). Holladay was another (citation 331 F.3d 1169). Note that it is clear in Holliday that had the inmate been unable to show a likelihood of prevailing on his claim that he is retarded, the Court would have denied the stay without the issue ever being fully adjudicated before his execution.

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As such, it is not remotely on point, and doesn't address the fundamental complaint I have with the decision of the court; namely, that an injunction was requested so that the family would be able to bring an action in the federal courts to determine if any of her rights were violated (no such action had been brought - the law which provided the family with the right to bring any such actions was passed the day the injunction was requested) - by denying the injunctive relief that was requested, the family would not be able to bring such an action b/c Terry would die prior to any resolution of such claims.

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That is simply not right. They brought the claims. They did not get a trial on the claims. The act conferred jurisdiction, it did not create any new rights.

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As such, the court effectively rendered the law meaningless, as the law serves no purpose to a dead Terry Schaivo.

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Nope. Their claims were considered in federal court and (properly) found wanting.


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It is also the reason the dissenting opinion is more compelling to me; it gives the family the right to bring a federal claim of action that the law provided for, and as I have previously explained, for purposes of ruling at the point when the court ruled, two things should have been taken as a given: (a) that the newly enacted federal law was constitutional and (b) that the law was meant to serve some purpose.

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The putpose of the law, as set forth in the statutory text, is to provide for jurisdiction and "de novo" review of federal claims. That was given. If congress wanted a specific result they should hav said so.

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I would have been fine with the federal courts ultimately determining that Florida's handling of the case was conducted such that Terry's due process rights were not violated - that is, if, in fact, the court actually ever considered this issue.

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It did. How do you think "substantial liklihood of success" was determined, anyway?


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I suspect that such would have been the likely outcome and probably should have been.

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Of course. There was plenty of due process here and the other federal claims were even worse.

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Unfortunately, no claims were brought at the federal level in respect of a law which was passed less than 2 weeks prior to her actually dying simply because the federal courts rendered a decision which for all intents and purposes mooted the newly enacted federal legislation.

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You are simply wrong about this. Read the text, read the lawsuit and read the court decisions. They were given the right to bring federal claims without prejudice to any prior determination, and the federal courts considered the federal claims without reference to any prior determination *OF THOSE CLAIMS*.

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It is also why I find odd your contention that I need to identify for you what "claims" should be subject to de novo review - the federal courts, in rendering the opinions it did, prevented any such "claims" from being passed on at all.

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Hopefully I have made the point clear to you in the above post.

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As for your question, there may or may not have been harm to Terri Schiavo depending on whether you believe there was any part of Terri left in there. Certainly if I wanted life sustaining treatment stopped and I was treated against my will I would find that harmful. I doubt, however, that she was aware of anything so I believe harm to her would have been preactically non-existent. I suppose there may have been some emotional harm to Micheal Schiavo but I don't believe that that is particularly relevant.