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Unprincipled Republicans, Unprincipled Judges
Posted by: Dale Franks on Wednesday, March 23, 2005

Law professor Jonathon Turley also comments in today's USA Today, vis a vis the Schiavo case: 

The Framers expressly sought to keep Congress from intervening in legal cases or imposing forms of punishment. The Constitution imposes a separation of powers, requires due process and prohibits forms of legislative intervention. Yet such principles become mere abstractions when the discussion turns to feeding tubes. For members, the Schiavo bill offered a sudden surge of popularity and clarity after weeks of punishing debate over Social Security plans...

In intervening in Florida, the only thing that legislators had to give up was any claim to principle. The sponsors admitted that their intervention was a flagrant violation of federalism, but insisted that they simply could not let principle stand in the way of "doing the right thing." Of course, the test of principle is the ability to remain faithful regardless of personal preference. If you comply with principle only when it is convenient or popular, it is a pretense of principle.

This, of course has been precisely my argument—to the enormous irritation of some commenters—that the Republicans have been entirely unprincipled in their lame defenses of the Terry Schiavo law, passed in a midnight session a few days ago.

Moreover, it is, in my mind, simply another illustration of the lack of commitment to principle that the Republicans have shown in recent years.  The party of free trade, less government, and fiscal responsibility has saddled us with all manner of steel, textile and softwood tariffs, passed a hugely pork-laden farm subsidy bill, and presided over a massive expansion of government spending and tax cuts that have led to a ballooning deficit.

Although, admittedly, I am more upset about government spending increases than tax cuts, since I prefer to starve the beast as much as possible.  But only if that starvation actually leads to smaller government, in which case it's simply irresponsible pandering.

Republicans yammer on incessantly about the superiority of their principles, yet it seems they are peculiarly unable to actually implement them, even with a government majority.  And now, in the case of Ms. Schiavo, apparently even eager to abandon them, as long as they can try to ensure the desired political outcome results.

In fact, the term unprincipled, doesn't even begin to cover it.

Still, the Courts have so far been no more principled than the Congress.  Despite the Congressional mandate for de novo review, the 11th Circuit has simply decided to ignore the law, and the clear intent of congress in providing a preliminary injunction to re-insert Ms. Schiavo's feeding tube.  As conservative radio host, author, blogger, and Constitutional Law professor Hugh Hewitt writes:

 Judicial contempt for the coordinate branches on this scale is simply staggering. Anyone defending this morning's majority or yesterday's ruling has to defend this disregard of Congressional action.  Had either court ruled that the law was unconstitutional, that would have at least clothed the Pontius Pilate approach with some legal cover.  But reciting irrelevant standards for granting injunctive relief in advance of trial in a case where Congress intended the injunction to issue is simple sophistry.  As I wrote yesterday, there are many different standards governing the issuance of injunctive relief, and when Congress intends great caution —as with imminent harm to endangered plants and animals— the trigger for injunctive relief is very sensitive. The 11th Circuit has now ruled that the Congress intended a higher standard of review in Terri's case than in the routine case of imminent harm to, say, Munz's Onion or the snail darter. Absurd, and obviously so.

Apparently, the courts, deciding that Congress' new Schiavo Act was just silly, decided to simply ignore it, without any of that tedious business about declaring it unconstitutional.  Or providing a preliminary injunction for the Schindler's.  Drag it out a couple of more days, after all, and there will be no more controversy about Ms. Schiavo's status since she'll be dead, and the whole issue will disappear.

No one appears willing to abide by the traditional legislative or judicial processes, and we should all be offended.

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Previous Comments to this Post 


This has gone far enough.  Let’s look at the what the law says:

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 . . .

The district court determined that no injunctive relief was necessary to protect Terri’s rights.  You may disagree with that decision, Congress could have easily said:  the district court shall enjoin the order of the Florida court taking away the feeding tube.  BUT IT DID NOT!  What  is so freaking hard to understand? 

Here is what Sen. Frist had to say on the issue: 

Sen. Frist: I share the understanding of the Senator from Michigan, as does the junior Senator from Florida who is the chief sponsor of this bill. Nothing in the current bill or its legislative history mandates a stay.

So if nothing mandates a stay, how in the world can it be unprincipled to not issue a stay? 

Hugh Hewitt either knows better, and is lying, or he doesn’t, and should shut up. 

And how do you know the district court did not look at the issue de novo?  How do you know that?  Really?  In fact, de novo review is hardly uncommon - in the vast majority of cases courts exercising de novo review do not reach a different judgment than the decisions they are reviewing.  Indeed, because the district court found there had been no misapplication of Florida law and no federal constitutional violation, there was no reason to issue a stay - it was not necessary to protect Terri’s rights, rights which had been lawfully ajudicated. 

Congress is acting in an unprincipled manner - but the courts aren’t.  Enough again with the false moral equivalency. 


Written By: mkultra
URL: http://

God help me, but MK is right on here.  I like Hugh Hewitt (and Dale), and am generally in agreement with him (and Dale) on most things, but I think emotion has clouded his ability to see this case clearly.  Honestly, I’m not sure I can see it clearly myself, but I tend to believe that if all of the various court judgements at all levels have reached effectively the same conclusion, that maybe, just maybe, there is factual information that led them to their conclusions.  The courts appear to have followed the process as it was intended, and have reached at least as plausible a conclusion as those on the keep Terri alive side have reached.

For all of the invective flying across the web on both sides, I am left wondering:

From what I understand, there is little, if any, money left for the husband to collect after Terri’s death.  Where is his rational motive for trying to allow her to die rather than simply abdicating responsibility for Terri’s care to her parents? 

I’ve heard the theories that maybe he tried to kill her, and that he’s afraid that she might recover and implicate him.  If there is any evidence of this, why haven’t the authorities chased this down?  I suspect they have tried, because suspicion of the spouse is one of the first things the cops look at in a potential domestic violence case.  I can only assume that there was insufficient evidence to press charges.  I don’t know, but neither do any of you, really.

So why did the husband wait seven years to mention Terri’s supposed wishes?  Perhaps he too was hoping that she would recover, and it was only when he had reconciled himself to the fact that she would not that he said she would not have wanted to live like that.  Perhaps it was the parents who simply couldn’t come to terms with her condition.  I don’t know, but neither do any of you, really.

I’ve heard it suggested that the husband has givfen up his right to make the decision because he has a paramour and two children by her.  I have also heard that Terri’s parents introduced the couple, and encouraged the husband to enter the relationship because Terri’s condition was irreversible.  I’m not sure what any of that has to do with his legal rights as Terri’s husband.  I don’t know, but neither do any of you, really.

One explaination that makes sense to me is that he truly knows/believes/feels that Terri did not want to live this way, and is honestly trying to respect her wishes.  I don’t know, but neither do any of you, really.

And for all of you who say we should err on the side of life and allow the parents to keep her alive, what if that is not at all what Terri wanted, and what if she is actually suffering inside her shell?  Now that would be cruel and unusual punishment.  Again, I don’t know, but neither do any of you, really - and my suppositions are no less plausible than yours, and are likely more so.

So, since I wasn’t there, I’m back to trusting the courts, who have had access to the most information, in a forum where it could be fully vetted and challenged.  I heard during the Robert Blake jury deliberation that you couldn’t guess what the jury woul decide unless you had been in court for every minute of the trial, because you might not have all of the facts, and you wouldn’t know the effect of those facts in the courtroom.  I think the same principle applies here.  It’s time to take a step back and trust the system.


Written By: S.
URL: http://
Where is his rational motive for trying to allow her to die rather than simply abdicating responsibility for Terriā€™s care to her parents?
Has anyone bothered to determine if Mr. Schiavo is Catholic?  How about the woman he’s living with? Perhaps she doesn’t believe in divorce and won’t consider him eligable to marry unless Terry kicks the bucket.  Perhaps he doesn’t believe that either.

What’s rational about killing something that isn’t supposed to be Terry anymore?
Written By: Mark Flacy
URL: http://

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