March 22, 2005
I called it

Me, earlier today:

I'm sure Judge Whittemore's ruling won't be the end of [the Terri Schiavo case], just as I'm sure that pre-ruling stories which proclaimed him fair and unbiased will be non-operative within the next hour or so.

Senator Rick Santorum, later today:

U.S. District Court Judge James Whittemore has defied Congress by not staying Terri Schiavo's starvation execution for the time it takes him to hold a full hearing on her case, a leading Republican senator said Tuesday.

"You have judicial tyranny here," Santorum told WABC Radio in New York. "Congress passed a law that said that you had to look at this case. He simply thumbed his nose at Congress."

"What the statute that [Whittemore] was dealing with said was that he shall hold a trial de novo," the Pennsylvania Republican explained. "That means he has to hold a new trial. That's what the statute said."

"What he's saying is, 'I don't have to hold a new trial because I've already determined that her rights have been protected,'" Santorum said.

"That's nice for him to say that But that's not what Congress told him to do," he added. "Judges should obey the law. And this judge - in my mind - simply ignored the law."

One wonders why they didn't just cut out the middleman and pass a law that orders Terri Schiavo's feeding tube be kept in place ad infinitum. Certainly it wasn't a respect for longstanding, established legal principles that held them back.

UPDATE: John Cole called it, too.

UPDATE: Via The Stakeholder, the scandal-plagued Tom DeLay has now reacted to Judge Whittemore's ruling:

House Majority Leader Tom DeLay, a Texas Republican, said in a statement Whittemore's ruling is "at odds with both the clear intent of Congress and the constitutional rights of a helpless young woman."

The legislation Congress passed requires a "new and full review" of the case, DeLay said. "I firmly believe the circuit court will give the case a full and appropriate review."

Once again I say: if there was only one thing the judge could do that would have been acceptable to DeLay and Santorum and their henchmen, then why bother giving it to the judge at all? If you're going to abuse your power, you may as well go whole hog. I'm sure this will be a lesson to them.

Posted by Charles Kuffner on March 22, 2005 to National news | TrackBack

Senator Santorum's comments reminds me of a sign I saw when I was in Florida earlier this month:

No, you can't have it your way.
This isn't Burger King!
You'll either have it my way,
Or no damn way at all!

Posted by: William Hughes on March 22, 2005 2:06 PM

I always knew that the judiciary's job was to do what Congress told them. Now if we could only get Congress to do as the people tell them.

Posted by: Chris on March 22, 2005 4:03 PM

Senator Santorum should have his general counsel explain to him what "review" means. De novo refers to the standard of deference with which a reviewing court will scrutinize a prior court opinion. The "de novo" aspect of the statute, which is by far the most egregious feature, means that the federal judge doesn't need to give ANY deference whatsoever to what 7 different Florida courts did over 19 years of interminable, intractable litigation.

The reviewing court was entitled to completely ignore all of the prior state court proceedings.

Regardless, however, "de novo" does not mean that the judge had to hold an entirely new "trial." (this again displays Santorum's failure to educate himself even fundamentally on the nature of these proceedings, b/c the statute does not authorize a trial, but an evidentiary hearing, which is most assuredly not equivalent to a full-blown trial). It means that the federal judge was not required to give any deference to the state court decisions on the matter. Nothing Judge Whittemore did flouts that. He reviewed the decisions de novo -- giving no deference to the state courts -- and rendered his decision.

I actually have more than a few connections to clinical ethicists, hospital and health care attorneys, and people who helped draft the Texas advance directive statute (which is quite progressive, actually), and all of them I've spoken with, to a man/woman, are simply agog at what is going on in this case right now (and more than a few of them are quite socially conservative).

Posted by: TP on March 22, 2005 5:18 PM

How about, ... Congress is at odds with the clear intent of the American public. Considering that a supermajority of them don't think it was the place of Congress to do a damn thing. What authoriy does congress have if they are at odds with the country?

Posted by: Karl-Thomas on March 22, 2005 6:14 PM

I was reading through the Guardian ad litem report earlier today, and I came across this little nugget. I wonder if the GOP knew that their Judicial poster-child isn't exactly on board with them, at least historically. just in case the link doesn't work.

Posted by: 'stina on March 22, 2005 7:06 PM

I wonder how intentional the current posing and monologing is planned. The judge can only act on motions put before him and not on congressional intent. I don't see how a motion that was as unsound as the one sent to the federal court fits unless it was supposed to be denied for TV.

My big question is the oft-quoted republican playbook issue. Is this a losing issue for Congressional Democrats? I'd have scoffed at the notion, but I've found that I'm a lousy predictor of what issues have traction.

Posted by: Michael on March 22, 2005 7:19 PM

TP: I believe the Senator is well aware of what review means. But, as the dissenter in the appeals court pointed out, the temporary injunction to reinsert the tube would only have bought the court time actually to review the case thoroughly. If Terri Schiavo's dead, of course the substance of the case becomes moot.

Now, if folks want to question whether Congressional intent actually needs to be taken into account (and thus take issue with that dissenting judge), be my guest. But there is a certain logic to the argument, whether you find it compelling or not.

As for knowing some people who are socially conservative and agog... you're usually much more thorough and analytical than that.

This isn't directed at TP or anyone in particular, but it seems to me that the vilifying of people and questioning of motives in this case (whatever one's position) take us away from issues that are complex, and deserve our conversation. Many of us have a view on this particular case (mine is established in bits and pieces elsewhere), but that doesn't mean every other view is motivated by evil intent or cynicism or power grabs or whatever.

Posted by: kevin whited on March 24, 2005 7:51 AM


I'm not at all sure the good Senator understands what "de novo" review means. Because if he did, he would well understand that nothing Judge Whittemore did actually flouts the plain text of the statute Congress passed. They instructed him to consider the issue de novo, which he did. What Senator Santorum is upset about is that the judge did not decide it the way Santorum wanted him to. That has nothing to do with the standard of review. The statute did not order the Judge to make a given decision. It ordered him to consider the issue de novo.

As for knowing some people who are socially conservative and agog... you're usually much more thorough and analytical than that.

I really don't know what you mean by this. I was making an observation -- that many clinical ethicists, lawyers, doctors, and nurses I've spoken with about this issue, even conservative persons, are "agog" at what is going on here. That's not an argument against the side opposing Michael Schiavo, nor was it intended to be. It was simply a personal observation. I don't think "thoroughness" and analyticity is required.

Posted by: TP on March 24, 2005 2:48 PM

I say: if there was only one thing the judge could do that would have been acceptable to DeLay and Santorum and their henchmen, then why bother giving it to the judge at all?

Two theories:

1. Some Rethugs may well have considered the Florida court system "biased." After all, they did (try to) grant Al Gore a statewide recount. They may have actually believed that all they needed was a de novo review in a "friendlier" court to get the ruling they wanted.

2. More cynical Rethugs may, deep down, not have wanted to interfere in the Schiavo case at all. After all, it's patently clear that the whole point of their shenanigans is to feed red meat to their fundie base. But they can't keep doing that unless they can continue to pose as "defenders of life" against a thoroughly hostile judiciary. (In fact, this may all be an elaborate setup for exercising the "nuclear option" on judicial filibusters.)

Posted by: Mathwiz on March 25, 2005 4:01 PM