Hugh Hewitt: In the Spirit of Pontius Pilate

Hat tip: levi from queens, THANKS LEVI!

In the Spirit of Pontius Pilate: Congress and the President be Damned, Terri gets no food or water.


Judge Wittemore's ruling is shocking. The crucial discussion in his opinion begins:
"This court has carefully considered the Act and is mindful of Congress' intent that Plaintiffs have an opportunity to litigate any deprivation of Theresa Schiavo's federal rights. The Court is likewise mindful of Congress' directive that a de novo determination be made 'notwithstanding any prior State court determination.'"

Then, without a single witness having been called, and relying on a few hours review of a handful of affidavits, the judge announces that Terri's parents don't have a substantial likelihood of success at trial, and refuses to order any relief that will allow that trial to occur. "This court appreciates the gravity of the consequences of denying injunctive relief," he writes, as though this expression of seriousness on his part will somehow oblige us to ignore his contempt of Congressional intent.

It was clearly the intention of Congress that Terri receive nutrition and hydration throughout the course of a "de novo" trial on the merits of her claim. Her parents could well lose that trial and subsequent appeals, but the Florida legislature might also act in the interim. The judge rushes through his part in this drama and punts to the 11th Circuit, which would have been fine by me if he had resumed nutrition and hydration.

But he didn't. Citing case law having to do with other settings in which injunctive relief has been sought and denied is another sideshow. Tom Delay, in the Sunday press conference where this was announced, stressed that the legislation had been crafted to get Terri back on hydration and nutrition pending a de novo review of the facts in federal court. Judge Wittemore is wrong to rely on other precedents when the Congress gives such an explicit charge.

At a minimum, Judge Wittemore ought to have ordered resumption of hydration until the 11th Circuit and, if necessary, Supreme Court appeals are heard. Convicted felons don't get executed until all the appeals are heard. Their executions are stayed even when they haven't got a prayer of a chance of success. Not so in this setting. And that is what is so shocking.

Several voices have been raised against the action of the president and the Congress, and bogus opinion polls circulated. Fine. Anyone who wants to run for office on the basis of that position is welcome to do so.

But it is a wholly different matter when a court simply ignores the obvious intent of an overwhelming majority of the Congress and the agreement of the president. Once again we have on display a judiciary that has grown contemptuous of the directly elected branches. When the Senate returns, the clash over judges will commence again, and proponents of nominees who understand that it is the role of judges to apply the law as intended by Congress will have another powerful example of why such nominees are so needed on the bench.

I hope the panel of the 11th Circuit Court of Appeals does not conduct itself with such contempt of the coordinate branches, and quickly issues the obvious order resuming food and water until the hearings that Congress intended be held are in fact held.