Not too late to save Terri

The Republican leadership in Congress could have postponed Terri Schiavo’s death by leaving in the “shall issue” clause it took out. It could still do so. But it won’t.

Most of the House Republican leadership signed a truly bizarre submission to the 11th Circuit claiming that the Judge Whittemore’s decison misunderstood the intent of the law they’d just passed. Naturally, both the 11th Circuit and the Supreme Court ignored their submission, and the parallel submission by the Senate Republicans. Legislators communicate with judges through the statutes they pass (and, in the view of most, the legislative history they create), not by after-the-fact expressions of opinion.

Tom Maguire, understandably reluctant to see DeLay and Frist as they are, quotes a New York Times story suggesting that for Constitutional reasons Congress couldn’t have inserted a clause ordering the court to issue a TRO. That’s almost certainly not right; if Congress can Constitutionally intervene to reopen as a Federal case a matter already fully resolved under state law, then it can change the rules of procedure for that case as well.

As the District Court opinion makes clear, the lower courts would have presumed the Constitutionality of such a statute, and, as both the District Court and the 11th Circuit majority made clear, would have deferred to Congress had it either (1) included the “shall issue” clause present in the original bill but not in the statute as passed or (2) instructed the courts to issue, under the All Writs Act, any temporary orders necessary to allow the case to be brought to a resolution on its merits.

Neither Judge Whittemore nor the 11th Circuit majority so much as hinted that they would have balked at such a direct instruction from the legislative branch; they merely refused to infer one when it was absent, and therefore applied the usual standard for the issuance of a TRO. As the majority said, “Congress considered and specifically rejected provisions that would have mandated, or permitted with favorable implications, the grant of the pretrial stay.” Not a whisper of a suggestion that Congress lacked the authority to issue such a mandate.

Therefore — I don’t suggest this, of course, but I point it out — if Sen. Dr. Frist, Defendant DeLay, and Puppet Hastert really want a full trial in Federal court on the merits of the Schiavo case, they can still have it.

All they have to do is call the Congress back into session and pass a new law with a “shall-issue” or All Writs Act clause, and the lower courts will salute smartly, say “Yes, sir!” and order the feeding tube reinserted. The Supreme Court, which rarely intervenes at the TRO stage, won’t touch the case. Terry Schiavo’s feeding tube will be reinserted. Judge Whittemore will start holding hearings on the merits, with the entire national press corps watching. All of the evidence that convinced born-again Baptist conservative Republican Judge Greer will be brought in. And then, after several months, Judge Whittemore will make the same finding Judge Greer made, leading to the tube being removed once more. But by then the whole country will know the facts about Terri Schiavo’s medical condition, her prognosis, and her marriage.

Do I hear Mr. DeLay’s voice saying “Never mind”? I thought I did.

The Republicans have done what they wanted to do: they have further stimulated hatred of the judiciary among their base (in both senses of the word) voters. (See, for example, the vicious tone of Bill Kristol’s latest screed, or this piece by Hugh Hewitt that makes an explicit link between the Schiavo case and the nuclear option, just as Jonathan Zasloff guessed). Now that they’ve gotten what they needed from Terri Schiavo, they’re going to let her die. (No, that’s not “conspiracy“: that’s just hardball.)

But it’s not because they couldn’t have kept her “alive” — for a few months — if they really wanted to.

Glenn Reynolds has more.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com