March 25, 2005

Is it possible to explain the Schiavo statute on television?

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. Those who took the other side of the question and supported what the federal courts did kept making statements about how wrong it was for Congress to want to disregard the work of the state courts, how Schiavo's plight shows why one ought to have a "living will," or why Schiavo is really better off dead. Christopher Hitchens did an especially abysmal job on "Hardball," repeatedly saying that Schiavo was "brain dead" and that there simply was no life even to be talking about.

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. Barnes and his ilk relied on material in the second part of the statute, headed "Procedure." That section gives Terri Schiavo's parents standing to bring a lawsuit and says:
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.
But the substance of the statute -- as opposed to the procedure -- is in Section 1:

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.
Those procedures outlined in Section 2, including the authority rehear claims de novo, apply to the "suit or claim" provided for in Section 1. Read the boldface text: the statute only authorized the parents to bring federal law claims. It gives no authority to redo the state law claims, which is what the state courts relied on in appointing the husband as the decisionmaker and so forth.

The parents' complaint in federal court had only a few skimpy federal claims to make, and the federal court denied preliminary relief because there was very clearly no "substantial likelihood of success on the merits" on these federal claims. The main federal claim was a violation of due process, which had to include consideration of the quality of the state court's work. 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.

Did any of the talking heads on the news analysis shows make this point? I didn't hear it. Yet this is the main legal point that explains what the federal courts did. Maybe somehow it's too technical or dry to say on television. The other night, Harvard lawprof Laurence Tribe was on Greta Van Susteren's show and not only didn't he make this point, he asserted that every legal expert thinks the statute is completely unconstitutional. But it wasn't so obviously unconstitutional that the federal courts started there. If it was so unconstitutional -- "up, down, and sideways," as Tribe put it -- why didn't the court begin with that? It's a jurisdiction-granting statute. If there is no jurisdiction, there's nothing more to say. It should have been easy -- if Tribe is right about blatant unconstitutionality -- to say the statute purports to give the court jurisdiction, but the statute is unconstitutional and therefore void. Why then did the court presume jurisdiction and move on to the likelihood of success on the merits? Because the unlikelihood of succeeding on the federal claims -- the only claims that could be at stake under the statute -- was so painfully obvious.

I was tearing my hair out last night listening to all this TV analysis and not hearing any focus or even mention of the need for federal claims under the new statute. There is so much talk on TV talk news -- round and round with emotional assertions and clips of suffering faces -- but there is an abject failure to explain the actual legal points. The judges who did the work in this case can't go on the show and explain what they did, and no one serves as a proper voice for them. The audience is left to think that judges are arrogant, insulated, illegimate, and heartless. What a sorry display!

UPDATE: Welcome Instapundit readers. And sorry I missed Glenn's presentation on Kudlow, which did try to explain the legal distinction on television. He writes:
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.
Yes, it really undercuts what these so-called conservatives can say about judicial appointments now, doesn't it? They've blown their credibility.

ANOTHER UPDATE: And thanks to AmbivaBlog for the plug.

YET MORE: Here's the "Hardball" transcript with the Hitchens material referred to in the post. An excerpt:
The thing is, there‘s no role for anyone in this case, because there isn‘t a life, unfortunately, to save. Mrs. Schiavo is dead and has been for some time. ...

I don‘t know whether Mr. Schiavo was able to interpret his wife‘s wishes or not when she was alive. But she‘s now dead. ...

I‘m a materialist. We don‘t have bodies. We are bodies. When the brain is gone, you are gone. No physician who‘s attended her in any capacity has said that she‘s anything but totally brain-dead. She‘s not disabled. She‘s gone....

Her brain has shrunk to a point where it‘s no longer human. As you say, the—full of fluid. All people want to know at the point like this is how one can decently put an end to it. I must say, I find it revolving, the idea of—even if she can‘t feel anything, something in me rebels against the idea of, as they say, starving her. If I was a physician, I would just give her a morphine injection. And that is what is often done.

AND EVEN MORE: Hugh Hewitt links to this post. My response to him is here.

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