- The Washington Times - Monday, March 28, 2005

Liberals have repeatedly used the talking point of how many judges have heard the case of Terri Schiavo. But that is as misleading as most of the rest of what they and the mainstream media have said.

When a case goes to a higher court on appeal, the issue 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 the defendant’s guilt or innocence, 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 all these judges agreed with the merits of the original court’s decision. It means they found no basis for saying the original court’s decision was illegal.

The law passed by Congress authorized 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. But the federal courts have refused to do that.

There is no way 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 working round 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.

Nor could the Appeals Court judges have gone through all of this “de novo” in a couple of days after Judge Whittemore’s decision. They added to the number of judges liberals can count but did not follow the law — which is what really counts.

The federal judges rushed to judgment — in a case where there was no rush legally, despite a medical urgency. Terri Schiavo was not dying from anything other than lack of food and water. These federal judges could have ordered the feeding tube restored while they gave this issue the thorough examination authorized — and indeed prescribed — by the recent congressional legislation.

As dissenting Judge Charles Wilson of the U.S. 11th Circuit Court of Appeals said, the “entire purpose of the statute” is to let federal courts look at the case “with a fresh pair of eyes.” But, by the Circuit Court decision, “we virtually guarantee” the merits of the case “will never be litigated in a federal court” because Terri Schiavo will be dead. Never — regardless of how many judges are counted as talking points.

The liberal line, both in politics and in the media, is Congress somehow behaved unconstitutionally. All federal courts except the Supreme Court are created by Congress. The Constitution itself gives Congress the authority to define or restrict the jurisdictions of federal courts, including the Supreme Court. Is the Constitution unconstitutional?

The lessons of this tragic episode are as momentous as they are painful, if only because we should never want to see such a miscarriage of justice again. The issue was not only whether Terri Schiavo should live or die, important as that is.

Another important issue was whether self-government in this country will live or die. Judges who ignore the laws passed by elected representatives are slowly but surely replacing democracy with judicial rule. Meanwhile, the media treat judges as sacrosanct and criticism of them as almost blasphemy.

All this adds more urgency to the need to install judges who will follow the written law, not their own notions. We can only hope Senate Republicans have the guts to do so.

Thomas Sowell is a nationally syndicated columnist.

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