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Schindler v Schiavo II

Rich Galen

Friday March 25, 2005



    Click here for an Easy Print Version

  • According to a few Members of the US House of Representatives, I was incorrect in my assertion on Wednesday that the bill signed into law early Monday morning (Public Law 109-3) simply gave Terri Schiavo's parents access to the Federal Courts and did not require the reinsertion of her feeding tube.

  • The "few Members" of the House of Reps include Speaker Dennis Hastert, Majority Leader Tom DeLay, Majority Whip Roy Blount, and Judiciary Committee chairman James Sensenbrenner as well as Florida Congressman Dave Weldon (who is an M.D.) submitted a "friend of the court" brief asserting the legislative intent of the law.

  • Their brief stated that Public Law 109-3, requires US District Court Judge James Whittemore to have Mrs. Schiavo's feeding tube reinserted pending the outcome of the federal court reviews.

  • The section of the brief in question reads, "Clearly, the Middle District of Florida is required by Public Law 109-3 to keep Theresa Marie Schiavo alive until such time as a de novo review of her claims occur."

  • According to the Findlaw.com legal dictionary, "de novo" means, "over again; as if for the first time."

  • When the Supreme Court, in a 33-word order, ruled unanimously that Mrs. Schiavo's feeding tube should not be reinserted, it rendered PL 109-3 moot, whatever the intention of the Congress was and whatever its Constitutionality.

  • But let's track back over this anyway.

  • Either PL 109-3 is Unconstitutional, meaning the Congress, under the doctrine of separation of powers, cannot require a Federal judge to issue a specific order in a specific case; OR Judge Whittemore chose to ignore a Constitutionally acceptable law, which might well qualify as bad behavior on his part.

  • Let's go to the rule book:

    Article I, section 2 of the U.S. Constitution states that "The House of Representatives � shall have the sole Power of Impeachment."

    Article I, section 3 states "The Senate shall have the sole Power to try all Impeachments."

    Article III, section 1 states that Federal judges "shall hold their Offices during good Behavior," which is the basis of the lifetime appointment for Federal judges.

  • There is a concept in US Constitutional law of "Judicial Review" which has been in force since 1803 when Chief Justice John Marshall first asserted it in Marbury v Madison.

  • Judicial Review grants Federal courts the right - and responsibility - to (according to findlaw.com) "strike down an act of Congress as inconsistent with the Constitution."

  • My excellent memory of Dr. Robert Hill's Con Law class at Marietta College does not include in that doctrine, the Judiciary's authority to simply ignore a law which is otherwise Constitutional.

  • So,
    If PL 109-3 is Constitutional; and

    If the House was serious about the passage of PL 109-3; and

    If the intent of the legislation was to have Mrs. Schiavo's feeding tube reinserted; and

    If U.S. District Judge Whittemore willfully ignored PL 109-3; and

    If a Federal judge can only continue to serve "during good behavior;" and

    If defying a lawful statute is bad behavior; and

    If the House of Representatives has "the sole power of impeachment;" then,

  • The House Judiciary Committee should immediately being impeachment proceedings against Judge Whittemore.

  • Whew!

  • I do not expect that the House will impeach Judge Whittemore and if they did, I would not expect that the US Senate would convict.

  • Articles of Impeachment have only been adopted by the House 62 times since 1789. Of the cases which went to a Senate trial only seven resulted in convictions. All seven, interestingly, were Federal judges.

  • The appalling case of Terri Schiavo and her family is coming to an end. It may not have lasting significance from a political standpoint, but its impact on the legislative/judicial relationship may echo for years to come.

  • On the Secret Decoder Ring page today: The text of the Supreme Court's order; the text of the House Leadership's friend of the court brief; a eye-wiper of a Mullfoto, and an extremely clever Catchy Caption of the Day.

    --END --
    Copyright © 2005 Richard A. Galen

                                                                       

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