Thursday, March 31, 2005

Ist Das Nicht Ein Schindler Banc? Nein, Das Ist Ein Schiavo Banc!

Just finished reading the concurring and dissenting opinions in the 11th Circuit's decision in the Schiavo matter to deny the Schindlers a rehearing en banc. Perhaps it's because I'm an English major, but I can't help reading into the exchanges between Judges Carnes and Hull, concurring, and Judges Tjoflat and Wilson, dissenting, a little subtext.

I get the funny feeling that the dissenters bent over backwards to make sense of the Schindlers' eighth claim, based on substantive due process--while admitting, frankly, that the Schindlers had a heavy burden of proof. Judges Carnes and Hull, on the other hand, seemed to deprecate this judicial attempt (if it was an attempt) to make the Schindlers' case for them.

Doubtless, Judges Tjoflat and Wilson pointed out the only ray of hope for the Schindlers: the possibility of re-opening and re-trying the central issue of fact in the case; namely, what did Terri Schiavo really want? To this extent, the dissenting opinion makes a useful historical record: yes, indeed, the judges were listening. As Judges Carnes and Hull responded, though, this hope was a forlorn one. The Florida courts, they pointed out, had examined a large body of evidence with great care and applied the correct standard to it. There was no chance that the federal courts were going to second-guess them.

(Oddly enough, in all the reporting on the Schiavo case, I've yet to come across any reference to the Schindlers' rebuttal of Michael Schiavo's "clear and convincing" evidence of Terri's wishes, except an argument that runs something like this: (a) Terri was a "devout" Catholic; (b) devout Catholics don't refuse medical treatment, as long as there's still hope for recovery; therefore, (c) Terri would have wanted to continue treatment. If that was all they had to go on, Michael all but won by default.)

It was amusing to see the take of Judges Tjoflat and Wilson on Pub. L. 109-3, too; so different from that of Judge Birch. Neither opinion points up the Alice in Wonderland-like (sentence first; verdict second!) aspects of Section 3 of the Act, which provided:

After a determination of the merits of a suit brought under this Act, the District Court shall [No matter what the outcome, shall!] issue such declaratory and injunctive relief as may be necessary to protect the rights of Theresa Maria 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.

So Judges Tjoflat and Wilson are being a wee bit disingenuous, when, in response to Judge Birch, they point out that Congress frequently (say) sets the standard of review in its statutes; if ever a statute required a court to reach one and only one result, this is it.


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