Why didn’t Congress order a stay?

I’ve read through Judge Whittemore’s decision, and though I’m no expert on civil procedure it looked to me as if he made a pretty solid argument. In order to get a temporary restraining order, the moving party has to show likelihood of success on the merits. The Schilders couldn’t. Therefore, the feeding tube doesn’t go back in unless and until the court makes a ruling on the merits of the case.

But of course, given the denial, there almost certainly will never be a ruling on the merits; in the meantime, Terri Schiavo’s death is likely to make the case moot.

A strange result, maybe, but it seems to be good law. Two of three 11th Circuit judges agreed, or at least thought that the district judge hadn’t abused his discretion, while one strongly dissented.

Orin Kerr, at least, isn’t surprised.

To my untutored eye, neither opinion looks obviously unreasonable; the argument about the All Writs Act seems both central and, to an outsider, inscrutable. The same applies to the question of how great the probabilty of success on the merits has to be to justify a TRO when the harm to the movant if the TRO is denied is both great and irreversible.

I guess we’ll get to find out what an en banc says, what the Supreme Court says, or both.

But here’s the question: Given that this result was an obvious possibility, why didn’t the Congress write the law in a way that would have prevented it?

The original bill as drafted by Sen. Martinez provided that the court “shall” grant a stay. At the suggestion of Sen. Levin, that was changed to “may.” But the final text of the bill as passed omitted that provision entirely, and provided that relief should be given “after a determination of the merits.” That led both the district court and the appellate majority to decide that the usual rules about TRO’s applied. (Howard Bashman guessed up front that the missing provision would turn out to be crucial.)

As long as Congress was doing something as extraordinary as taking a state question that had been finally determined in the state courts and moving it to federal court, why not throw in a provision for a stay? It’s hard for me to imagine a situation in which the removal to Federal court was justfied but making sure the merits of the case actually got heard wasn’t justified.

Obvious hypotheses:

1. Sen. Frist was in a hurry to get the bill through, and weakening or taking out the TRO provision was Sen. Levin’s price for not stalling it.

2. The Republican leadership wanted the bill to pass, but didn’t want there to be an actual trial. At such a trial, which would have dominated the airwaves for months, the pure bogosity of pretending that a woman with spinal fluid where her cerebrum ought to be is, or can ever be, aware of anything would be demonstrated. Passing the bill and then having Terri Schiavo die anyway gives them the best of all possible worlds: victory, a martyr to judicial tyranny, and no examination of uncomfortable fact.

3. Some combination of (1) and (2). The bill as originally drafted by Martinez was actually intended to work, but, when Levin put up a fuss, Frist (who despite his pretense to the contrary probably knows the difference between spinal fluid and gray matter) was only too happy to allow himself to be thrown into the briarpatch.

It seems to me that #3 best covers the facts. To believe #1, you’d have to be willing to believe that Levin completely hornswoggled the save-Terri forces. Not impossible, I suppose, given that Levin is a lawyer and Frist isn’t. But I tend to prefer explanations not involving mistakes on crucial issues by smart operators. On the other hand, #3 is a little bit too three-carom for my taste.

Still, as I said at the outset, this is a sincere query. Anyone with information or analysis to offer is invited to email me.

Footnote: John Cole of Balloon Juice is really and truly peeved at his erstwhile allies in the GOP. He writes:

This congressional action is hostile to the very principles of good government, hostile to medical science, hostile to the concept and of and legal rights afforded to marriage, and most of all, hostile to the best interests of Terri Schiavo.

File it under “buyer’s remorse.”

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