The federal judge who received the political hot potato of deciding whether to restore Terri Schiavo’s feeding tube — tossed to him by a special law passed by Congress and President George Bush rushing back from Texas to sign it — today nixed the idea..moving the issue now to another court for an appeal.
It will now be interesting to see how this is framed — whether this simply moves to appeal or we see the unveiling of a campaign to vilify this judge due to his legal decision. Some commentators already seem to mention that he is a Clinton appointee which is code language for “activist judge” to some.
If you boil this down to the bottom line it means the parents and their mostly GOP supporters in Congress and among the Christian Evangelicals will keep trying until they find THEIR activist judge who will support their case — and after this issue receeds then clamor for a judiciary without activist judges when Supreme Court nominations come up. Hopefully many editorial boards and writers — including those on the GOP side — will give them a gentle reminder when they do that everyone wants an activist judge when it comes to their causes..
Read our long round up in the previous post below and you will see that this issue has irked many within the GOP itself: particularly those who are closer to the party’s libertarian wing. This issue does NOT enjoy unanimous support within the GOP at all.
Details about today’s decision:
TAMPA, Fla. — A federal judge early Tuesday morning refused to order the reinsertion of Terri Schiavo’s feeding tube, leaving the fate of the severely brain-damaged Florida woman unresolved.
U.S. District Judge James Whittemore (search) said the 41-year-old woman’s parents had not established a “substantial likelihood of success” at trial on the merits of their arguments.
Schiavo’s tube was removed Friday after the appeals of her parents, Bob and Mary Schindler (search), to keep the tube in failed in state court. Tuesday marked the fourth day without her feeding tube.
Rex Sparklin, an attorney with the law firm representing the Schindlers, said lawyers were immediately appealing to the 11th Circuit Court of Appeals in Atlanta to “save Terri’s life.”
That court was already considering an appeal on whether Terri Schiavo’s right to due process had been violated.
However, Whittemore found that Schiavo’s due process rights had been upheld throughout the litigation process.
In the ruling, the judge said there were issues concerning the constitutionality of the new law, but he presumed the act to be constitutional for the basis of the request for an injunction that would have ordered the feeding tube reconnected.
Whittemore wrote that Terri Schiavo’s “life and liberty interests” were protected by the process of the Florida courts.
“Even under these difficult and time strained circumstances, however, and notwithstanding Congress’ expressed interest in the welfare of Theresa Schiavo, this court is constrained to apply the law to the issues before it,” the ruling reads.
Bobby Schindler, Terri Schiavo’s brother, said his family was crushed by the decision.
“To have to see my parents go through this is absolutely barbaric,” Bobby Schindler told ABC’s “Good Morning America” on Tuesday. “I’d love for these judges to sit in a room and see this happening as well.”
Whittemore’s decision comes after unprecedented action by President Bush and Congress over the weekend to enact legislation allowing the Schindlers to take their case to federal courts.
Numerous state courts have affirmed the right of her husband, Michael Schiavo (search), to act on her behalf. The U.S. Supreme Court has refused to hear the case.
Terri Schiavo did not have a living will. Michael Schiavo has fought in courts for years to have the tube removed because he said she would not want to be kept alive artificially and she has no hope for recovery.
Her parents contend she responds to them and her condition could improve.
Doctors who have examined her say she is severely brain-damaged and has no chance of recovery. A CAT scan made several years ago indicates that her cerebral cortex, the upper part of the brain, has largely atrophied and been replaced by spinal fluid.
David Gibbs III, the parents’ attorney, argued at a Monday hearing in front of Whittemore that forcing Terri Schiavo to starve would be “a mortal sin” under her Roman Catholic beliefs and urged quick action: “Terri may die as I speak.”
But George Felos, an attorney for Michael Schiavo, argued that keeping the woman alive also violated her rights and noted that the case has been aired thoroughly in state courts.
“Yes, life is sacred,” Felos said, contending that restarting artificial feedings would be against Schiavo’s wishes. “So is liberty, particularly in this country.”
“Every possible issue has been raised and re-raised, litigated and re-litigated,” Felos added. “It’s the elongation of these proceedings that have violated Mrs. Schiavo’s due process rights.”
Those who want to see the feeding tube restored will appeal it all the way to the Supreme Court, if necessary. Will the SCers be pleased about getting this divisive case after it has slowly recovered from the bitter controversy surrounding the 2000 elections?
This will be a fascinating legal issue — and POLITICAL — issue to watch. President Bush and his White House political team are expending A LOT of POLITICAL CAPITAL on this. Moreso than on Social Security. Many citizens and politicos he would need to get his reform plan through are raising their eyebrows up to the tops of their heads over this one.
There’s also a sense of overexposure: aside from political issues, TMV turns on the TV and just wishes he wouldn’t have to see more of Tom DeLay or the President constantly talking about emotional issues that divide Americans into two camps. There seldom seems to be an effort to bring the country together.
This is precisely how the show Who Wants To Be A Millionaire wore out its welcome when it was televised too many times a week. Its ratings dropped like an anchor. More and more TMV wants to switch off the news and watch ESPN.
Joe Gandelman is a former fulltime journalist who freelanced in India, Spain, Bangladesh and Cypress writing for publications such as the Christian Science Monitor and Newsweek. He also did radio reports from Madrid for NPR’s All Things Considered. He has worked on two U.S. newspapers and quit the news biz in 1990 to go into entertainment. He also has written for The Week and several online publications, did a column for Cagle Cartoons Syndicate and has appeared on CNN.