Sunday :: Mar 20, 2005

Congress Calls for a 'Mulligan'

by larre
Not liking a particular result in a case that has been litigated fully and completely by a court with competent jurisdiction, Congress now has said that the game must be re-done with new rules that heavily favor one side over the other. The implications of this move are astonishing. Just think about it. Anytime Congress doesn't like the result in a particular case, it could swoop in and call a 'do-over,' which is essentially what this legislation represents. -- Andrew Cohen, CBS Court Watch
Andrew Cohen's Q-and-A legal analysis of the coming federal court fight over the "Terri Schiavo Relief Act," linked above, is about the best I've found at this early stage of what has surely become a huge political dice-roll by the hypocritical thugs who now dominate the national Republican Party.

Cohen explains --

"[T]he 'compromise' that legislators say they will enact and then present to the President, starts off with the words 'for the relief of the parents of Theresa Marie Schiavo.' The bill would give the U.S. District Court for the Middle District of Florida jurisdiction 'to hear, determine, and render judgment on a suit or claim by or on behalf of Theresa Marie Schiavo for the alleged violation of any right... under the Constitution or laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.' But it would specifically not 'confer additional jurisdiction' on courts to hear disputes about assisted suicide or "create substantive rights not otherwise secured" already in federal or state law.

The proposed law also gives Terri Schiavo's parents procedural help. It gives them standing to start a case on behalf of their daughter in the Middle District of Florida and it requires the federal trial judge to determine 'de novo any claim of a violation of any right' Terri Schiavo may have. It also requires the federal courts to push the case to the front of the litigation line and requires the federal courts to issue 'such declaratory and injunctive relief as may be necessary to protect the rights of" Schiavo.' The law gives Schiavo's parents, or 'any other person who was a party to State court proceedings relating' to the case, to file a lawsuit within 30 day.

Cohen foresees "a race to the federal courthouse" where Terri's Schiavo's parents will try to persuade a judge to interfere with her wish to die, as innumerable Florida state courts have concluded the "clear and convincing" evidence shows that she wanted if she should lapse into a vegetative state.

Because of the bill's "de novo" language, it's possible the Middle District of Florida federal court will feel compelled to hear, anew, all of the evidence introduced in state proceedings. Or, it may be that good sense will prevail and the court will, much as any other appellate or habeas corpus court might do, simply review "de novo" the many volumes of earlier testimony and exhibits.

In either event, Michael Schiavo will be arguing that the Congressional bill is unconstitutional. As Cohen writes:

"There are plenty of serious constitutional issues raised by this law. First, it applies only to one family and thus may create equal protection problems-- after all, why shouldn't other people who want to keep their loved ones on life support over the objections of others not also received tailor-made legislation?

Second, as Harvard Law School Professor Laurence Tribe points out, it arguably deprives Terri Schiavo herself of the constitutional right to 'halt the unwanted bodily invasion by a tube' and does so without any due process to her (and her husband and guardian).

Third, it raises big separation of powers problems and also federalism concerns-- the Supreme Court in particular hasn't been receptive to federal intrusion into matters normally resolved by the states-- matters like guardianship laws."

Cohen speculates, as I do not doubt many others around here have, that
"there are probably some smart folks on Capitol Hill who are supporting this legislation knowing that ultimately the courts will strike it down. That way, being the politicians that they are, they will be able to blame the heartless judiciary for the result and still will be able to say to their constituents that they tried their best. It is the politics of cynicism at its very best (or very worst).
Cohen's conclusion has added force -- not to mention irony -- when you realize that a principle author of the Schiavo Relief Act is U.S. Senator Tom Harkin (D-Iowa).

Harkin is undoubtedly one of the good guys. A true progressive. A once-upon-a-time legal aid lawyer. A courageous advocate against unncessary wars. The brother, if memory serves, of a hearing-disabled sibling. (But the brother-in-law by marriage, it is also true, of the fringe right-wing nut, Howard Phillips.)

Harkin also was principle author of the Americans with Disabilities Act, which sought among other noble goals to open the federal courts to civil rights complaints by disabled workers who are victimized by employer discrimination. A conservative majority on the Supreme Court recently ruled that Congress exceeded its constitutional powers when it tried to create federal jurisdiction over private citizen ADA discrimination lawsuits for compensatory damages against state government employers.

Back home, Harkin faces a growing population of rabid right-wing evangelicals. Putting his fingerprints on the Shiavo Relief Bill may be good politics in Iowa; or it might be a clever move to moderate the even-worse House Bill initially favored by Tom Delay; or it might be a classic example of what Cohen calls a 'smart' guy looking to blame the 'heartless' judiciary when the bill is declared unconstitutional.

Any way you cut it, the cynicism on Capitol Hill is running broad and deep. As Cohen rightly observes, the Schiavo Relief Act is backed by an administration that tries "to keep all sorts of citizens... out of federal court," including disabled employees, older workers victimized by age discrimination, U.S. citizens accused of violating the Patriot Act, and foreigners who allege they've been tortured and even killed while in U.S. custody.

The hypocrisy at the core of the congressional action is that the right-wing Christian fundamentalists will shortly be happily ushering the parents of brain-dead Terri Schiavo into federal court because they hold religious and philosophical views consonant with those of the Bush Administration, but they would shut the same courthouse door in the face of Terri, herself, if she needed the federal court's help to remove her feeding tube -- or to contest a discriminatory job firing under Tom Harkin's ADA law, supposing her employer canned her for being bulimic.

Cohen concludes that if the Schiavo Relief bill is upheld as consistent with the U.S. Constitution --

" decision in any state court in the country will be immune from Congressional second-guessing. It would throw out of whack the entire concept of separation of powers. The constitutional law expert Tribe calls it 'trial by legislation' and he is right.
I'd go one step further: If the Schiavo Relief Bill survives constitutional challenge, it means Congress intends the federal courts to bless only 'approved, Christian fundamentalist' legal claims. No others need apply.


A report in the Christian Science Monitor quoting a Virginia political scientist also is relevant to the above.

"GOP leaders in both houses describe this case as having to do with the 'culture of life' theme expected to be central in the 2006 congressional races. 'Their gamble is that the general public will be divided on the issue and will not vote on the subject come 2006, but that the Republican-base ... group of conservative Christians will remember this vote forever,' says Larry Sabato, a political scientist at the University of Virginia in Charlottesville."

larre :: 12:40 PM :: Comments (15) :: Digg It!