Monday, March 21, 2005

What Is Going On?

Andrew McCarthy is rightfully concerned and asks:

But what possible good reason is there for not ending the ongoing starvation and dehydration forthwith?

He explains what is meant by de novo review.

The law passed by congress and signed by the president last night provides that in a lawsuit such as the one Terri’s parents have brought: “the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings. The District Court shall entertain and determine the suit without any delay or abstention in favor of State court proceedings, and regardless of whether remedies available in the State courts have been exhausted.”

McCarthy also explains why the right thing to do is to protect the innocent during this process.

De novo review regardless of what went on in the state courts should mean it is a brand new ballgame – the federal court owes no deference to any of the matters raised or ruled on in the state courts. Given the voluminous nature of the record generated in Florida, there is no way this case can be decided quickly if it is to be reviewed responsibly. Terri Schiavo would be dead in the time that would take. So, manifestly, the only proper thing for the judge to do was to order the feeding tube replaced forthwith the minute the case was filed. If Terri’s parents lose their case, the tube can always be removed again. But if Terri dies while the judge is spinning his wheels, she and her parents can never be made whole.

So, just what is going on?

What is this Clinton appointee doing -- and has he eaten dinner tonight?

I'll bet he's even had something to drink.

Imagine if this were a death penalty case and a law got passed staying the execution until a new judge could completely review the case. Imagine also that this law had gotten passed while the capital defendant was being walked by jailers to the execution chamber. Does anyone think the authorities would keep walking the defendant to the lethal injection table, strap him in, and begin the execution while waiting for the judge to perform his de novo review?

Of course not – the very first thing that would have happened would have been the immediate return of the capital defendant to the safety of his cell. The status quo would be preserved without prejudice to either side, and with the knowledge that if the judge later ruled against the defendant there would be plenty of time later to walk him back to the death chamber and get on with the execution.

Why is this hard? You can argue about how the judge’s de novo review should be decided. But what possible good reason is there for not ending the ongoing starvation and dehydration forthwith?

I have no idea.

America is learning a very important civics lesson.

Will we (and our representatives) pass the test? Or will we continue to hand more and more power to fewer and fewer people -- the courts?