Straight Up with Sherri

Tuesday, March 22, 2005

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.

41 Comments:

  • My first hat tip ever!!! Thank you eevil.

    By Blogger levi from queens, at 3:49 PM  

  • levi, you have contributed so much. I would have been lost often without the leads and support information that you were providing while Sherri was in Florida.

    By Blogger Right Wing Nut Job, at 3:53 PM  

  • levi

    IT IS LONG OVERDUE!!!

    YOU ARE AWESOME!!!

    By Blogger Straight Up with Sherri, at 3:58 PM  

  • I didn't know that M. Schiavo was a prison nurse.

    Anyway, from the Washington Times:

    http://www.washtimes.com/national/20050322-121622-9464r.htm

    By Anonymous Sarah D., at 3:59 PM  

  • The American Spectator chimes in:

    http://www.spectator.org/dsp_article.asp?art_id=7919

    "Just as the Democrats speak of "human rights" while basing their platform on the human rights abuse of abortion, so they speak of the value of the disabled while putting pressure on the disabled to die. Woe to the old and disabled under a Democratic ethos of "meaningful life." The Democrats will pal around with the disabled at Special Olympics events, but whenever it comes down to crunch time they support a culture which essentially says that the inconveniently disabled should commit suicide or be killed. Contempt for the disabled is even seen in the Democrats' choice of political put-downs: Dr. Howard Dean, sounding ready to cut off food and water to Republicans, calls them "brain dead," and recall Al Gore calling Republicans "extra-chromosome" freaks."

    By Anonymous Sarah D., at 4:05 PM  

  • Must EVERYTHING be a "Federal Case" with you ideologues (Liberal or Conservative alike). Before you go ranting off about why this judge or that judge was derelict in his duties—you may want to read the Constitution as well as the standard for imposing the extraordinary equitable relief known as an injunction. In order for a judge to grant an injunction there are minimum standards that must be met—otherwise—anyone (like you yahoos) can claim you deserve equitable relief. There is a reason such relief has a high standard—to prevent “Activist Judges” (as they are frequently called from upsetting the delicate balance between the rights of individuals and our government. You trample on that doctrine to your peril. If you have a problem with this standard—good luck changing it—it (1) requires an act of Congress (so don’t blame the judge that follows the law) and (2) requires a Supreme Court that will find such a change Constitutional (and just between you and me…”Not Bloody Likely…”)

    By Anonymous Anonymous, at 4:25 PM  

  • levi, you have been a blessing here:) Thanks to you, RWNJ, Sarah D., ect., the truth is getting out.
    We have made our phone calls, actually my 15 year old did this batch. He said he talked to one of the reps one on one and she thanked him for calling, said they've been getting tons of calls today.
    Hey Sarah, if scumbag adulterer husband is a prison nurse, maybe they ned to take a closer look at him and lock him up too.
    Sherri, if you're around, how is your grandmother doing?
    Marine Momma

    By Anonymous Anonymous, at 4:31 PM  

  • anonymous-- the standard for an injunction varies with the statute. The proper statutory scheme to follow for Terri's law is the one which allows lesser proof levels which is used for the endangered species act. If Terri had gotten the treatment of the Snail Darter or Munzi's Onion (which is clearly the intent of Congress), the judge would have ruled in her favor. This is quite clearly the case of Judge Whittemore substituting his personal preferences for the plain instructions of the law.

    By Blogger levi from queens, at 4:45 PM  

  • Anonymous,

    Via Levin:

    "Article III specifically empowers Congress to determine the jurisdiction of the federal courts, which is all it did today. It authorized a federal court to determine whether Terri Schiavo's due process rights and the right not be subject to cruel and unusual punishment were properly protected by a state court. In Roe v. Wade, the Supreme Court decided on its own that abortion was a federal question, not to be left to the states, without any constitutional basis whatsoever. It preempted every state court and legislature (and Congress, for that matter). And the Left celebrates this decision."

    Intervention by Congress is not a new thing, nor is it rare. You just don't like it when the court intervenes on a conservative issue.

    By Anonymous Sarah D., at 4:57 PM  

  • Marine Momma,

    I have a feeling that there are plenty of reasons to take a closer look at M. Schiavo. I'm just afraid it will be too late.

    By Anonymous Sarah D., at 5:00 PM  

  • And, of course, as a prison nurse, he would have illegal access to insulin, a prescription controlled substance. Whether it is or is not true, the allegation must be investigated!

    By Blogger Right Wing Nut Job, at 5:04 PM  

  • RWNJ: I've been wondering where he would have gotten the insulin. Interesting no?

    By Anonymous Sarah D., at 5:07 PM  

  • A bit on M. Schiavo's nursing:

    http://hyscience.typepad.com/hyscience/2005/03/sheriff_hired_m.html

    By Anonymous Sarah D., at 5:13 PM  

  • BTW - M. Schiavo became a nurse after Terri's collapse. He stated in the malpractice case that he wanted to become a nurse (and needed the money to pay for it) so he could help his wife, for the rest of her life.

    By Anonymous Sarah D., at 5:16 PM  

  • To Levi,

    By its on words:
    AN ACT For the relief of the parents of Theresa Marie Schiavo.
    SEC. 3. RELIEF.
    After a determination of the merits of a suit brought under this Act, the District Court shall issue such declaratory and injunctive relief as may be necessary to protect the rights of Theresa Marie Schiavo under the Constitution and laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.

    Like the honorable Justice Antonin Scalia, as a strict constructionist, I have very little use for “intent.” The intent of Congress is clearly indicated by the words of the statute. As evidenced by the words above, Congress intentionally left the issue of whether injunctive relief should be granted in the hands of the district court. Granted, based on the transcripts of the trial, the trial judge seemed a bit antagonistic towards Mrs. Schaivo’s parents (via their attorney), it is certainly not an abuse of discretion in these circumstances to not grant relief. (“Reasonable minds will and can disagree”) Appellate courts are generally not in the business of reversing district courts unless the district courts have abused their discretion to grant injunctive relief. Although you, among others—are content to believe TVA v. Hill and the like (“The Snail Darter Case”) establishes the proper standard, courts have the right to adopt the appropriate standard under the circumstances. No to mention, the Snail Darter Case and its progeny dealt with the granting of an injunction in the face of a huge capital outlay. The issue was for courts to decide in favor of an injunction while weighing the societal/public harm of sunk costs associated with public utility projects and the like. Not what I would consider an appropriate comparison to the Schaivo case.

    By Anonymous Anonymous, at 5:35 PM  

  • I will bet my life that Scalia would vote for Terri to be fed!
    Marine Momma

    By Anonymous Anonymous, at 5:46 PM  

  • Yes

    I am still around...

    Waiting fot that dreaded call that she has passed away....

    My heart is pounding out of my chest...it hurts...physically it hurts....

    I am trying to stay busy... mopping, reading, posting, listening to Hannity, etc...

    hard....

    By Blogger Straight Up with Sherri, at 5:46 PM  

  • Wow -- that post by Anon had a lot of legalese for my to try to absorb.

    By Anonymous Anonymous, at 5:50 PM  

  • Dear Sara,

    Me thinks the lady doth protest too much…

    Let me first begin with the end—and work my way back through the gaps in logic of your trite response.

    (1) You have incorrectly assumed that I have an issue with “conservative issues.” That of course presupposes I believe the issue before us is a “conservative issue.” For the sake of expediency—lets not tarry on that point (but note, that is leap of logic #2).

    (2) “Cruel and Unusual Punishment” – please spare me the rhetoric (“Sound and Fury”). I presume we all are well read individuals, I require no inane appeals to my emotions (i.e. “Cruel and Unusual Punishment”). The statute in question (Again, I am a strict constructionist) does not address the issue of “Punishment” and although you would like to frame our discussion around your “passion plays”—lets leave your irrelevant “passion plays” for your fellow demagogues.

    (3) I never hinted—implied—or suggested that I have a problem with federal court intervention. Although you seek to paint me with some broad “liberal” brush—you have failed to address my argument (not to mention you presume I was/am in favor of the Supreme Court’s decision in “Roe.”) And, fact of the matter, the Supreme Court decided that “Abortion” was included among those “reproductive rights” that are protected under the “mysterious” right to privacy.

    (4) And of course my favorite…[back to the end] you have made the HUGE assumption that I have a problem with the intervention of Congress. My suggestion--next time, before you type your “canned responses” do me the favor (and courtesy) of actually reading and comprehending what I have written. Otherwise, I am just wasting my time. It is possible to be a conservative and disagree with poorly reasoned positioned—as was yours.

    By Anonymous Anonymous, at 6:04 PM  

  • Interesting, is it just me or have I been accused of not reading a post closely enough from someone who not only doesn't post a nic, but who lacks the abiltity to even SPELL mine correctly?

    GMAB

    By Anonymous Sarah D., at 6:11 PM  

  • Ahhh---Sara(h), when all else fails, let the ad hominem attacks begin...the sign of a failed argument. How typical...

    Anything else? (Substantive that is?).

    Lets argue facts and logic, not spelling (especially something as irrelevant as your name...)

    By Anonymous Anonymous, at 6:25 PM  

  • Is it just me, or have I now been accused of "ad hominem attacks" by an anonymous poster whow shows up today and starts in with, "you ideologues", and "like you yahoos"?

    I wonder if anonymous knows what de novo means in relation to the Schiavo case?

    By Anonymous Sarah D., at 6:37 PM  

  • LOL!!!

    Of course "anonymous" thinks names are irrelevant- it has to take that stance since it leaves none!

    This is purely a case of civil rights. The CONGRESS IS COMPELLED TO INTERVENE when State Courts fail to protect the CIVIL rights of ALL Americans as promised by our Constituiton.

    When the State is corrupt- it is EXACTLY the role of the FEDERAL GOV'T TO ACT.

    See how easy it is to talk logic....

    By Blogger Straight Up with Sherri, at 6:38 PM  

  • Anonymous -- just what is your name by the way? -- you say that courts have the right to assume what standard they like. They rather have the capacity to choose the atandard they like. It is not a right like the enumerated three in the Declaration of Independence with which we are endowed by out creator. As we all know, judges can do what they choose subject to appeal. A judge here has choses a course where he appears to hope that the subject of any appeal can be snuffed before final decision. He has ignored the clear intent of the Congress of the United States of America. You differentiate on the grounds that overruling large sunk costs is a deeper public interest than overruling the life of a single lady. I believe your logic is precisely flipped. As Terri's interest is arguably smaller than those huge sunk costs, a lower threshold as there is a far smaller cost to the polity to save her life is called for. Your illogic is breath-taking. We are back to judges may do as they like. Indeed they may do so. And God wept.

    By Blogger levi from queens, at 6:43 PM  

  • pimf -- there should be commas around : as there is a far smaller cost to the polity

    sorry for the incoherence. I was enraged by the idea that a larger problem should have a lower threshold for an obstacle.

    By Blogger levi from queens, at 6:51 PM  

  • I don't blame Sarah for avoiding the issues raised by (the other) Anonymous. On the other hand I'd love to see RWNJ address them.

    By Anonymous Anonymous, at 6:53 PM  

  • To Sherri and Sara(h),

    What’s in a name? More Sound and Fury perhaps. Who cares about any of your names (I certainly don’t). Considering Sherri is using a Glamour Shots photo as her signature—it explains a lot—namely why you seem to think your attempt to wax poetic about “civil rights” is logic…I mean really—Glamour Shots. How ridiculous. What are 15? (I have ad hominems of my own…) See...

    Now, I am well aware of what “de novo” means (that comment was as ridiculous as the Glamour shots). And as for the “Ideologue” and “Yahoo” label—your words clearly indicate that they are well deserved. Unwilling to address my argument—yet towing the ideological line—Yahoos—because you have a Glamour shot. How ridiculous…

    By Anonymous Anonymous, at 7:00 PM  

  • pimf -- there should be commas around : as there is a far smaller cost to the polity to save her life

    sorry for the incoherence. I was enraged by the idea that a larger problem should have a lower threshold for an obstacle. As well as enraged by the coolness of the argument

    By Blogger levi from queens, at 7:08 PM  

  • Congratulations Levi.

    You sir have answered my challenge. I enjoyed our discourse as well as your logic. Reasonable minds will disagree, but I can respect your opinion (unlike those of your compatriots...). Ladies, you could learn a little from Levi. Before you go into battle, you should be well armed...(With more than a glamour shot and some canned rant and general dislike for opposing views...).

    By Anonymous Anonymous, at 7:09 PM  

  • Anonymous -- I am enthralled by your cool superiority. Your logic may be mixed and reversed, but you are better than those southern yahoos. I pray that God will similarly award your awesomeness.

    By Blogger levi from queens, at 7:14 PM  

  • My photo offends you???

    LOL!!

    A name compels YOU to be consistent. That's all there is to it...

    But- we wouldn't to hold anyone to any standards here, would we...oh- my bad- just US. The next time I need to make a photo album, maybe I will look you up! (Don't hold your breath)

    Yes- LEVI is AWESOME! I realize my "simple talk" must have bored you, so you didn't bother to answer to that. Instead you reverted to personal attacks.... how charming, and typical... Oh, wait-- you didn't revert to them-- YOU STARTED WITH THEM.... maybe you ARE consistent...

    My bad AGAIN!!

    Making mistakes it part of my charm...

    I am merely a work in progress.

    No- a little oder than 15, but thank you!!!! My son is 15...

    By Blogger Straight Up with Sherri, at 7:19 PM  

  • Actually Anonymous

    I like when those with opposing views come by...

    You actually helped me get my mind off of some things for a bit...

    In all sincerety, thank you! And I hope to see more of you!

    By Blogger Straight Up with Sherri, at 7:22 PM  

  • Um...for the record--I am an avowed Southerner. Reared and educated in the South...

    By Anonymous Anonymous, at 7:24 PM  

  • But I have picked up some of my boy friend's smug Yankee tendencies. A change for the better, some would say...

    By Anonymous Anonymous, at 7:31 PM  

  • On the other hand I'd love to see RWNJ address them.I really have nothing to say in this regard. Anonymous has made a point. I personally find little reason in it. It becomes a passionate interpretation of the Constitution by an individual. I do it, Judge Greer did it, Judge Whittemore did it, Judge Kennedy did it. Are we not men? We are DEVO. Sorry, I couldn't resist that!

    By Blogger Right Wing Nut Job, at 7:33 PM  

  • AHHH! I love smart southern women, even if we do disagree!

    Well, off to more work...

    By Blogger Straight Up with Sherri, at 7:33 PM  

  • Good Question--"Are we not men?" - To Sherri--I ask--why assume I am a Southern Woman? I shall save the suspense and mention that I, in fact, am no woman--in fact a man, who's boy friend is a man as well. "Are we not men?"

    By Anonymous Anonymous, at 7:38 PM  

  • Another constitutional "expert:"

    Mark Rahdert, an expert in constitutional law and procedure at Temple University, said the Schindlers may have made an important strategic mistake.

    "They narrowed their focus in the petition to the same issues they had been litigating in state court, asking the federal court to decide whether the rulings on those issues were procedurally right or wrong," Rahdert said. "But that's a matter of state law, not federal. They didn't go beyond those claims to say the state court made substantive errors in judgment, which could have required a more extensive federal inquiry."

    That omission at the federal district-court level means such claims can't be raised on appeal
    .


    http://www.kansascity.com/mld/kansascity/news/politics/11203615.htm

    By Anonymous Anonymous, at 7:40 PM  

  • Just as Sherri has stated, I enjoy hearing the ideas of people who disagree with me. I rarely learn anything from those who agree with me.

    By Blogger Right Wing Nut Job, at 7:41 PM  

  • anonymous

    Sorry for the assumption... yes that is why assumed you were a woman... you mentioned boyfriend.. I am still a little old fashioned, I guess....When I hear Dr Smith- I automatically assume the doctor is a man as well....

    please do not be offended by my assumption, I certainly meant no harm in that....

    and yes, I do know what assuming things makes me...LOL!

    Now-- I really need to get to work!

    still waiting to hear about my grandma. Last I heard she was fighting! My uncle held her hand and told her that it was okay to let go, and she squeezed his hand shook her head NO!

    GOD I LOVE HER! I wish I could be by her bedside and cheer her on..... still praying for a miracle...

    MY GOD REIGNS!

    By Blogger Straight Up with Sherri, at 7:46 PM  

  • So I guess this judge does not anticipate getting a nomination on the USSC, huh?

    Wish Bush would nominate him just to see the carnage.

    By Blogger jlfintx, at 10:06 PM  

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