Friday, March 25, 2005

Thomas Sowell on Terri’s ‘Judges’

The argument has been made many times - so many judges can’t be wrong. Thomas Sowell points out the fallacy in the thinking.

When a case goes up to a higher court on appeal, the issue before the appellate court is not whether they agree with the merits of the decision of the lower court. In a criminal case, for example, the issue before the appellate court is not whether the defendant was guilty or innocent, but whether the trial was conducted properly.

In other words, the defendant is not supposed to be tried again at the appellate level. So, no matter how many appellate judges rule one way or the other, that tells you absolutely nothing about the fundamental question of guilt or innocence.

Similar principles apply in a civil case, such as that of Terri Schiavo. Liberals can count all the judges they want, but that does not mean that all these judges agreed with the merits of the original court’s decision. It means that they found no basis for saying that the original court’s decision was illegal.

What the law just passed by Congress did was authorize a federal court to go back to square one and examine the actual merits of the Terri Schiavo case, not simply review whether the previous judge behaved illegally. Congress authorized the federal courts to retry this case from scratch—“de novo” as the legislation says in legal terminology.

That is precisely what the federal courts have refused to do. There is no way that federal District Judge James Whittemore could have examined this complex case, with its contending legal arguments and conflicting experts, from scratch in a couple of days, even if he had worked around the clock without eating or sleeping.

Judge Whittemore ignored the clear meaning of the law passed by Congress and rubberstamped the decision to remove Terri Schiavo’s feeding tube. [emphasis mine]

The Federal courts have been legislating from the bench for a long time now. While one portion of the population views them as sacrosanct (except when they rule against Al Gore), another segment of the population views them as dangerously out of control. We may yet come to Andrew Jackson’s conclusion: “[Justice] John Marshall has made his decision; let him enforce it now if he can.” The implications of this are significant, and the courts would do well to take heed.

Posted by Matt on 03/25 at 09:52 AM
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