I’ve been lectured by someone named Greg Newburn on his blog http://gregnewburn.blogspot.com/2005/03/hard-cases-make-bad-pundits.html about comments I made in the last couple of weeks about the 11th Circuit’s denial of en banc review in the Schiavo case. I assume the comments are directed at me, rather than my wife, since Mr. Newburn is casting aspersions upon a Ms. Coffin (a subject we’ve covered thoroughly before).
I had written in exasperation at the court’s denial of en banc reconsideration of the appeal: “The Congress and President of the United States thought this issue important enough to drop everything and focus entirely on this single case in enacting legislation designed to address what they viewed as a matter of critical national importance. You are free to disagree with their assessment if you choose, but it strikes me as the height of judicial arrogance that the District Court and at least six of twelve judges of the Eleventh Circuit do not view the legislation enacted as sufficiently important enough to extend Terri Schaivo’s life a few days in order to allow a more careful examination of the issues in the case.”
Mr. Newburn, calling this analysis “some of the worst I’ve seen lately,” explains to me that:
Judges at the appellate level do not look to the “importance” of a law when deciding cases under that law. They don’t do it generally, and they didn’t do it here. In fact, deciding a case by making reference to some piece of legislation’s “importance” is precisely what the Courts are NOT supposed to do. The job of the Appeals Court is to figure out whether a trial court abused its discretion or committed some other type of legal error when making its decision. . . . What that means, Shannen, is that Courts have certain procedures, and certain rules to follow, and certain standards to apply to the facts of a case. If the facts of a case don’t fit the standard for, say, an injunction, a good opinion won’t grant that injunction.
Hmmmm, interesting thought, but let’s take a look at the very rule of procedure that governed the 11th Circuit’s consideration of the en banc petition. Federal Rule of Appellate Procedure 35 provides that en banc reconsideration may be ordered where “the proceeding involves a question of exceptional importance
.” My point was simply that the Eleventh Circuit did not take the governing rules seriously enough. Their conduct contrasted starkly with a case I argued to the Second Circuit Court of Appeals in New York a couple of years ago, where a plane was waiting on an air force base tarmac to fly millions of dollars of former Iraqi money back to Iraq to assist in rebuilding. The court, faced with a serious although not overwhelming claim that the money belonged to someone else, ordered the government to take the money off of the plane for a week to allow them to consider the claims. Otherwise, they would be moot. The same consideration was not given to an innocent person’s life in the Schiavo case. And that result would obtain even if you looked at the law.
I don’t wish to get into a tit-for-tat about the standards for preliminary injunctive relief in federal court, but suffice it to say, on the sliding scale that applies in most federal courts, Terri’s family had a good enough claim for relief that it deserved a second look. Whether they would have prevailed on the merits or not, a subject to which my post did not speak, is a different question entirely. Mr. Newburn, save your lectures for the less informed of your readers.