A Perspective on The Politics of The Schiavo Case
I recently recieved some E-Mail from a close associate, one very familiar with the law, the courts, history, and politics. This correspondence crystallized a point that had been stirring around in my brain for quite a while. Seeing as how he put together the gist of this idea better than I could, I contacted him, and he gave his approval for my reproduction of his e-mail.
Here follows what he wrote to me:
Proving that this is still very much the government that (1) said it was going to Iraq about WMD (2) but is now there to spread democracy, the legislature-executive-WSJ op/ed board complex is now shifting the Schiavo issue (1) from the right to life to (2) judicial nominations.Posted by Stephen Daugherty at March 25, 2005 7:20 PM
"Say what?" you might ask. Well, apparently, the behavior of the Florida courts and lower level federal judiciary with regard to Schiavo will serve the purpose of showing us how we can't trust liberal judges.
The WSJ offers the first thrust of this line of argument yesterday, saying in its "best of the web" newsletter that the legislature's intent in making the Schiavo Law was not for the Schiavo case to be decided as it has been by the federal courts the past few days.
The logic goes thusly: we said "de novo" review should be used by the courts in deciding the case. By that, we meant that the judges should basically start over and recreate constitutional and statutory doctrine on the right to life, not be bound by the old case law. The federal judges instead viewed themselves as bound by the old law on the subject of "right to life", which allows the plugs to be pulled, and thus ruled against Schiavo's parents.
It's the judge's fault. Whether one deems it "judicial activism", in the sense of not adhering to congressional intent, or "an overly conservative adherence to precedent", also in the sence of not adhering to the intent of congress, the judges screwed this up.
Of course, the Supremes will be exempted from this depiction as screwups, because they lean right already. How's that? Well, the Supremes did not so much review the case appeal and decide against Schiavo as merely turn down hearing the appeal, period, much less deciding it one way or the other. Thus, the Supremes successfully ducked the case and attendant public flak, even if the public perhaps deserves a definitive ruling on the "right to life" issues of the Schiavo case in this politically tumultuous time.....or maybe such a "this is what our greatest legal minds really think" opinion is not what the people, or at least members of a certain party, want at this time....better to leave them out entirely and blame those who have already cast their lot.)
How do you deal with judicial screwups? Well, you trust us to provide you with new and improved judges. Judges who won't misunderstand Congress. Bring on the judicial nominations. Bring on the filibusters. Bring on the "nuclear option". Bring on partisan discord.
But, was Congress misunderstood? No, the judiciary understood congress just perfectly. "De novo" review is a standard of appellate review which means the fact and law determinations of the trial court are reviewed anew. However, de novo review does not mean we toss out the rule book. It merely means the trial court is due no deference, that its mistakes of fact and law can be corrected by the appeals court.
This is the case in summary judgments. An appeals court can feel free to change my Court's factual and legal determinations on such judgments as it sees fit. If it thinks we screwed up, it owes us no heed. Appeals courts are allowed this power in certain situations so that mistakes below them do not bind them.
However, in other circumstances, appeals courts must adhere to the rulings of fact made by the lower court, whether they like them or not, so long as they are supported by some evidence. This is the case, if, say, you want a new trial (at least some of the time). The point to "de novo" is not really newness so much as a lack of
deference to prior "mistakes".
Which brings us to the reality check. De novo does not mean what the WSJ is trying to say it does. It doesn't mean the judges should have rethought "right to life" law anew. It just means the Florida courts were due no deference. The federal courts, however, made the same ruling even though they gave no deference.
Why? Because the law hasn't changed. The federales were unwilling to change the case law, and Congress hadn't actually changed the substance of "right to life" law when they did their Schiavo Law. They just created a procedural opening for a new hearing.
It is thus ironic to say the judges didn't get it. One might think that if the courts have repeatedly reached the same result, that means the result on facts and law is the proper one in the current state of legal affairs. That's not activism, or improper conservatism, unless you think the whole line of law on "right to life" is a mistake.
Which is what the real issue is, what it was before we even had this federal case, or the state one before that. It's whether Schiavo should stay on the machines, or not. That's political. At least, until they change the law. Then it would be legal. What the right is slamming the judges about is for not swaying with the political winds.
Which is no small irony from the people who brought us strict constructionism as judicial doctrine, and "judicial activism" as an epithet. What, you want activists now? Why don't you write that activism into the law? Maybe, because having judges make controversial rulings (Massachusetts on gay marriage, anyone?) is a new tactic for pushing issues, including the issue of who populates the judiciary.....