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Runaway Judiciary

Congress is allowed to "intervene and guide or control the exercise of the courts' discretion"--except when it comes to Terri Schiavo.

9:00 PM, Mar 23, 2005 • By HUGH HEWITT
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NOBODY NEEDS another opinion on whether hydration and nutrition should be restored to Terri Schiavo. Hundreds of commentators have written thousands of column inches on her parents' drive to see that she is fairly represented before the courts.

But people do need to focus on an unintended consequence of the weekend legislation: the illumination--again--of the contempt of the federal courts for their coordinate branches, and the contempt of the left for people of faith.

It was concern over Michael Schiavo's status of guardian that drove the congressional intervention, a concern primarily based on the jarring recognition that he has a girlfriend by whom he has had two children. Most people view that fact and conclude that his judgment may no longer be the judgment of a "husband" in the way that the law anticipated a "husband." Majority leader Tom DeLay bluntly leveled an assessment of Michael Schiavo that seems shared among those who have studied the case in detail:

Well I've got to tell you, I don't have a whole lot of respect for a man that has treated this woman in this way. He has refused to allow her to have therapy. He has refused to even let her have an MRI. For the last five years, five years, she's been kept in a hospice and every time they've asked just to take her outside, which they can do, he has refused. She's not been outside, I think, for the last three years. . . . I think his abuse and neglect of his position as guardian is outrageous. And, and, . . . and partnered with this judge that has allowed him to treat Terry like this for the last eleven years is outrageous. And my question is, what kind of man is he?

So Congress passed a statute that was intended to force a new trial on the merits of Terri's parents' concern that their daughter's wishes were not being honored. The president signed it. DeLay summarized the intent of Congress in his Sunday press conference: "We are confident this compromise will restore nutrition and hydration to Mrs. Schiavo as long as that appeal endures. . . . Obviously, the judge will have to put the feeding tube back in or she could die before the case is heard."

So much for "obviously." The District Court ruled that because there was no substantial likelihood that Terri's parents would prevail in the hearing not yet held, he would not order hydration and nutrition resumed. Two of three judges on appeal agreed, and so, at this writing Terri Schiavo remains without food and water--despite Congressional direction to the contrary.

The Supreme Court has long recognized that "Congress may intervene and guide or control the exercise of the courts' [equitable] discretion," even though such direction is rare and even though the Court will "not lightly assume that Congress had intended to depart from established principles." [Weinberger v. Romero 305, 313 (1982)]

One area where Congress mandated a hair trigger on injunctive relief is when the threat is to an endangered species. A few years ago a District Court in the 11th Circuit correctly ruled that the "pronouncements of the Supreme Court teach that, in considering the entry of an injunction under the ESA: (1) the Court does not have 'traditional equitable discretion' to balance the parties' interest, (2) any threatened harm is per se irreparable harm, and (3) the public interest always favors the imposition of an injunction under the Act." [Loggerhead Turtle v. Volusia County, Florida 92 F. Supp. 1296, 1301 (2000).]

In the case of the Endangered Species Act, the courts have built the standard of review from the statute's breadth and Congressional intent. I cannot think of a more clear-cut expression of Congressional intent and urgency than the extraordinary intervention of last weekend and the clear pronouncements of many legislators on the matter of Terri Schiavo. They assumed the federal district court would stay Terri's starvation pending the outcome of the de novo proceeding they had mandated, even as convicted murderers have their executions stayed as federal courts process their appeals from state proceedings.

Thus the courts, in the case of species conflicts, have built a standard governing the issuance of stays that was not on the face of the statute, but have refused to enforce the standard that was clearly intended in the case of Terri Schiavo.

WHAT TO MAKE OF THIS, the latest in a string of judicial decrees that run contrary to the will of the representative branch? Here's one reaction that arrived in my email account an hour after the 11th Circuit chose to ignore Congress:

We are no longer a nation of laws. We are a nation of lawyers. It doesn't matter how carefully we frame a law. It doesn't matter what sort of initiative the voters pass. The elite judges do whatever they want. . . .