In an earlier post, I looked at the bill Congress was then considering and pointed out how strongly it contradicted conservatives' alleged "federalism." That is a theme that has been expanded upon since then by any number of editorialists and bloggers, along with a laughable rebuttal by the ever-amusing Wall Street Journal editorial page. I also noted that even if the bill passed, the federal courts were certain to dismiss the claims of Terri Schiavo's parents on the merits.
As you will know by now, a federal judge has refused even to grant a TRO to put the feeding tube back in pending a full hearing, which goes even further than I had predicted--I thought that perhaps a judge would grant a "stay" of the state-court judgments, as the federal bill permits, before finally dismissing the case and dissolving the stay. Given that the denial of a TRO almost guarantees that the case will be moot before there is a full hearing--in other words, that Terri S. will die by then--the denial of a TRO expresses quite clearly that the judge thinks the parents have virtually no chance of prevailing on their claims. The same can be said of the appeals court's middle-of-the-night denial of a renewed request for an injunction.
That is no surprise, as it's been clear from the outset that there really was no federal case. Which is why I accused DeLay et al. of grandstanding: they passed a bill that they knew wouldn't make any difference. In fact, the federal judge's decision traces almost exactly my off-the-cuff analysis of the bill.
The bill allows Terri Schiavo's parents to bring a claim on her behalf that she is being deprived of her rights under the federal Constitution or federal law. There is no way--none--that such a claim has any chance of winning. What's the argument going to be? A denial of due process, after all of the endless proceedings in Florida state court? A claim that Terri Schiavo has a constitutional right to have the Florida courts intercede to force the hospital to continue feeding her? Remember, any constitutional claims will have to be against state action, not against the actions of private persons like Michael Schiavo or the doctors, so the Schindlers' lawyers will have to contend that by failing to stop those private persons from removing the tube, Florida has violated a constitutional duty.Sure enough, the federal judge said essentially two things: the Schindlers have no due process claim because the Florida courts provided all of the process that is required under the Constitution; and, as to their claims that removing the tube violated Terri S.'s religious freedom, the people who removed the tube were private persons, and simply because the state courts didn't stop them doesn't make the removal a state action.
Before the Schindlers' lawyers had even filed a complaint or made any argument, I knew, without doing any legal research, what claims they would make and why they would fail--which means that the crack legal staff on Capitol Hill would surely have been able to advise their bosses of what was going to happen.
Now that the inevitable seems to be coming to pass (though it still could be delayed by the 11th Circuit en banc or the Supreme Court), Ed Kilgore, subbing for Josh Marshall, raises the interesting question of what the WBA will do next. The GOP political strategists who have been behind this circus had to know, assuming they had competent legal advice, that Terri's parents were going to lose. Which means they must have a plan for what to do when that happens. Are they simply going to blame "activist judges" and let it go at that? Although the "activism" charge is an absolute joke under these circumstances,* Sen. Man-on-Dog, along with the WBA and the amazing video-diagnosis doctor have already responded with the usual rhetoric along those lines. The shock troops on the scene are verging on the paranoid in the wake of the 11th Circuit's ruling, believing that a score of state and federal judges are out to get them: "This is a clear cut case of judicial tyranny. All the judges who have ruled against Terri are tyrants, and we fully expected this decision," said one of them last night. So perhaps this is all about getting the base riled up about the judge wars, maybe in anticipation of a Supreme Court vacancy. But as Kilgore points out, given the rhetoric used by the bill's supporters, is it not possible that they are committed to an even more radical assault on the separation of powers and federalism in the form of yet another attempt to dictate the result of this case through legislation?
Stay tuned, if you have the stomach for it.
*OK. Here's the one bit of potentially useful information in this post: a short explanation of what the judge said and why he shouldn't be accused of ignoring the new statute. The statute, as I mentioned in the earlier post, requires a trial de novo. In other words, the federal court is not to show any deference to the factual findings or legal conclusions of the Florida courts. It is to analyze the evidence and the law afresh. What Sens. Santorum and Frist and Rep. DeLay say is that the judge failed to do that, because he said that the Florida judicial process had adequately protected Terri S.'s rights. This might sound plausible at first, but it's a load of crap (I hope I'm not losing anyone with the legal jargon).
Under the statute, Terri S.'s parents can go to federal court, but they still have to show that Terri's rights under federal law are being violated. As I mentioned in the earlier post, it's really hard to see how that could possibly be the case. The most obvious possibility would be that the State of Florida is depriving her of life without due process of law, which would violate the Due Process Clause of the 14th Amendment. But to prevail on that claim, the Schindlers have to show that the "process" provided by Florida was less than what Terri was "due" under the Constitution. That means the federal judge has to look at the state proceedings, not because he's going to defer to the state judges' findings, but to see whether the process was up to the constitutional minimum. (In fact, the judge explains this very clearly at page 4-5 of his decision, which I assume the esteemed Members of Congress must have read before publicly lambasting the judge). So when he says that the Florida judicial process adequately protected Terri S.'s rights, the federal judge isn't saying he agrees with what the Florida courts decided, let alone that he's going to defer to their conclusions; he's just saying that by providing a neutral forum with a fair decision-maker and an adequate opportunity for both sides to be heard, Florida has provided all the process that the federal Constitution requires.
Which means that even if the Florida courts are wrong, and in fact it's likely that Terri will fully recover in time for Easter and she would have wanted to be kept on a feeding tube indefinitely in any case, there's no violation of federal law. The only thing that federal law requires is that (at most) the state provide a fair procedure for deciding the case, not that the state get it right. So even if some Congressmen thought that by requiring a de novo hearing of any claims brought by the Schindlers, they were requiring the federal court to re-determine factual issues like whether Terri will recover, all that they really required--and all that they constitutionally could require--was that the federal court would re-determine all factual issues necessary to resolve federal claims. And, on the due process claim, the only issues that the court had to determine involved the adequacy of the process afforded by the Florida courts, not whether they were ultimately right or wrong about the factual disputes.
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