March 25, 2005


I watched a number of the cable TV news analysis shows last night (and in the last few days), and I am appalled at the failure even to raise the most basic legal point about the statute Congress passed. Time after time, I heard people -- like Fred Barnes on Fox News's "Special Report" -- say that everyone knows that Congress intended to give Terri Schiavo a de novo hearing, in which the federal court would disregard everything the state courts have done, and that the federal courts ignored the statute that Congress went to such extraordinary lengths to pass. . . .

Regardless of what people like Barnes think Congress intended, the federal courts were given a statutory text to follow, and the fact is they followed that text. Yet the TV commentators -- at least what I heard -- never made this most basic point. . . . The federal courts in no way flouted the federal statute. It's irrelevant that Congress managed to make people think it was doing things that it never put in the statutory text.

Actually, I made that point on Kudlow last night, noting that Congress enacted a procedural statute, in the hopes of getting a substantive result. But this point keeps getting missed. It's also worth noting -- as Ann does -- that the parents' case was simply quite weak on the law. I thought conservatives were supposed to care about the law, but I see a lot of people being as result-oriented as, well, liberals are supposed to be . . . .

UPDATE: Jonathan Adler observes:

Congress knew how to require a stay -- indeed a prior draft of the legislation included language that would have required a stay -- but such language was not in the final statute. Quoting one, ten or twenty legislators doesn't change this fact. The 11th Circuit panel was required to review the district court's decision for abuse of discretion -- a very demanding standard -- and the majority properly exercised that obligation. This does not mean there was no injustice in the Florida courts, only that there was not a federal constitutional violation.

I'm quite astonished to hear people who call themselves conservatives arguing, in effect, that Congress and the federal courts have a free-ranging charter to correct any injustice, anywhere, regardless of the Constitution. And yet my email runneth over with just those kinds of comments. And arguing that "it's okay because liberals do it too" doesn't undercut my point that conservatives are acting like liberals here. It makes it.

Every system generates unjust results. This may (or may not) be one of them, but there's no reason to think that Congressional action on an individual legal case is likely to improve things. My lefty law professors used to think that more procedures were always better, and seemed willing to tie the Constitution and the rules of procedure into knots to get to the result they liked. Even they have learned, to a degree, that more procedure doesn't necessarily lead to better outcomes overall. And conservatives, as opposed to bleeding-heart liberals, are supposed to understand that there's more at stake than the outcome in individual cases, and that there are real costs to putting whatever thumb-pressure on the scales it takes to get to a desired outcome in each case. Or so I thought.

ANOTHER UPDATE: Reader Bill Oliver emails:

Conservatives do not believe that a law must be obeyed no matter how wrong or evil that law happens to be, nor do they necessarily believe that a court decision must be obeyed no matter how evil that decision. Certainly our founding fathers did not believe so.

I gather that you would have opposed the civil rights movement, since it involved resistance to immoral laws? I gather you would have supported the continuance of slavery?

See, this is what I'm talking about. The fact is that we have a hard case. I think that the courts involved, and there have been a lot of them, have been doing a conscientious job. But don't trust me, listen to Daniel Henninger in the WSJ today:

It is true that Judge Greer has ruled against Terri Schiavo's parents, the Schindlers, many times. But by my count, in the five years from the original circuit court decision, the rulings against them include the following:

Florida's appeals court: eight times; the Florida Supreme Court: five times; U.S. federal courts: five times; the U.S. Supreme Court: three times.

This is a lot of judges. Some of the opinions are long discourses combing back through the details of the case. It is difficult for me to believe that these are all "liberal" judges intent on "killing" Terri Schiavo.

So the question is, do we overturn courts that are conscientiously doing their job because we think they got it wrong this time? Do we trust a bunch of Congressmen who often don't even read the bills they vote on to do a better job?

If you think that nobody should ever be taken off a feeding tube regardless of their condition, maybe so. But if you think the real question is whether Terry Schiavo is brain-dead or not, then it seems to me that absent some pretty strong reason to think the courts can't be trusted, it makes sense to let them do the job. And judging by all the discussion of her condition, the second question is the one that's the big issue.