Conservatives vs. Judiciary

[Bosh]

Originally posted by Seeker
Any openings?

It's SAT prep isn't it?

Sorry man I don't think they want Canadians
Well after my last too jobs I really deserved some good karma...

What's happening these days is the PUBLIC schools in the Seoul area are starting to hire more waygookin, I know some people working in public schools who might be able to set you up with a job. A lot of them hire you independently and give you pretty good conditions apparently, but GEPIK (the gyeonggido version of EPIK) is starting to try to take things over and make everyone give its crappy contracts...

[Ned]

Originally posted by Zkribbler


...the appeals by her parents, not by Terri herself.

Correct me if I'm wrong, but wasn't there a factual finding earlier on that Terri had left oral instructions she didn't want to be kept alive by artificial means, presumably including a feeding tube?

Usually, a court of appeal can only look at the trial court's ruling on legal questions. The only time it can overturn a ruling on a factual question is if no evidence supports it. These weren't wacko left-wing judges looking at this. They were IIRC judges appointed by Bush and Reagan.

(Of course, this doesn't explain why Schiavo's husband waited until after he'd collected on the medical malpractice case before carrying out her wishes.)

I think the issue that was finally raised and got the vote of two of the 11th Cir. judges was whether the evidence submitted was sufficient for federal due process standards. The evidence submitted included testimony by Terri's friend from college that Terri said after watching a movie about Kathleen Quinlan that she thought the feeding tube should stay in. That is what her mother testified to as well when the Quilan case was in the news seven years earlier.

The judge said he would not credit the testimony of Michael Schiavo, but proceeded to do so anyway. He said that Terri had watched a movie about someone being in a coma, IIRC. She is reported to have said that she didn't want to live with a machine keeping her alive. Michael's brother and sister-in-law also testified even though they were not on the witness list, over the objections of the Schindlers, who did not have a opportunity to investigate or conduct depositions. They reported a similar conversation with Terri at a funeral reception for a Schiavo grandmother: coma, support by machines. Terri said, "Pull the plug."

The standard for clear and convincing evidence is that it must be more than a preponderance, but less that beyond a reasonable doubt. The state judge found clear and convincing under these circumstances. At least two members of the 11th Circuit said the case raised doubts under the due process clause. Another member, writing in support of the court's denial of a rehearing, said that the Federal courts would have to accept the findings of fact by the state courts. The central problem with this position was that the statute giving the Feds jurisdiction mandated a hearing de novo on the fact issues in order for the Feds to make an independent assessment of whether the state court had denied Terri due process. The fact that no such de novo review was ever conducted is central to ire of many.

[DanS]

A quick question; When a Yank congressman that's Republican calls' a view "Liberal" does he intonate they really are Liberal (in true meaning), or is he using the word to indicate a Democrat view?

A liberal in the US is opposite of what the name implies in Europe.

[Zkribbler]

Ned -- It's clear that you've been following this case much, much closer than I have.

Originally posted by Ned
The central problem with this position was that the statute giving the Feds jurisdiction mandated a hearing de novo on the fact issues in order for the Feds to make an independent assessment of whether the state court had denied Terri due process. The fact that no such de novo review was ever conducted is central to ire of many.

This is the first I've heard of this and, if the statute is as you say, the federal courts fouled up badly. They cannot just ignore a statutory dictate of Congress. They can declare it to be unconstitutional or perhaps in conflict with another statute which is controlling for some reason -- but they can't just ignore it which it looks like they did here.

[Imran Siddiqui]

I think I'll use the DeLay test in my 2006 vote. If a candidate backs Tom DeLay, I'll vote against him. This is entirely absurd.

Kennedy is a moderate right wing justice for God's sake! He's voted with Rehnquist, Scalia, and Thomas FAR, FAR, FAR more times than he has with Ginsburg, Breyer, Stevens, and Souter. It's insane to call him a liberal.

I must agree with the poster who talked about how short sighted this was. What if the Dems come in power and start overruling all sorts of cases on States' Rights? The Republicans would not be happy in the slightest.

The fact that no such de novo review was ever conducted is central to ire of many.

The de novo review was not an issue, the temporary restraining order was. And every court said the parents could not show they could win the case on the merits in a de novo case to get a TRO.

It would have been declared unconstitutional anyway in any de novo hearing as a violation of res judicata and seperation of church and state.

[Dinner]

Originally posted by Seeker
it's total blahs-ville. Both of my best friends are ...ugghh..married...or getting that way.

I've been getting a lot of 'gee, we'd love to but ____ wants to ____, so MAYBE LATER'

The Grim Reaper of Cherubs (or whatever you call the wedding-spirit) claims another one this July. It will be my third best manning in a year. At least I'm getting a lot of use out of my suit.

Tell me about it. All my friends are either hitched or are kept on a short leash by their soon to be wives. I myself keep spending most of my time with my girlfriend but I at least make time for boy's night out once a week but even when we plan ahead it seems like 50% of them can't make it because of girlfriend related issues.

[Ned]

Originally posted by Imran Siddiqui

The fact that no such de novo review was ever conducted is central to ire of many.

The de novo review was not an issue, the temporary restraining order was. And every court said the parents could not show they could win the case on the merits in a de novo case to get a TRO.

It would have been declared unconstitutional anyway in any de novo hearing as a violation of res judicata and seperation of church and state.

Imran, if you read the dissents, you will quickly see that the courts used the wrong standard for an injunction. They applied the standard for a preliminary injunction rather than standard for the All Writs injunction in aid of jurisdiction that only requires a showing of a justiciable issue, given the degree of irreparable consequences should an injuction not issue.

The central problem was bad lawyering by the Schindler's attorney who never seemed to raise a justiciable issue until the motion for rehearing the second time they were before 11th Circuit. There, finally, they raised the issue of due process in the amount of evidence presented to the trial court on the issue of consent. This is amazing given that David Bois and other constitutional scholars from Harvard and the like kept saying on national TV that this was the only issue that could be litigated at the Federal level.

[Odin]

I am sick of the Right saying we hate America while they bash the protectors of our rights and liberties (the courts). The Right are the ones who hate America.

[Ned]

Originally posted by Odin
I am sick of the Right saying we hate America while they bash the protectors of our rights and liberties (the courts). The Right are the ones who hate America.

Let's say we both love America.

Good to hear it from you, Odin.

[chequita guevara]

Originally posted by SnowFire
There's a method for that. It's called a constitutional amendment, and it will nicely fix things like the Dred Scot ruling. There shouldn't be any other way.

Yes, there is a method of that, and it is not a constitutional amendment. The Constitution is very clear on the matter. Composition of the courts and what they may or may not hear is the province of Congress. Only matters arising between citizens of different states and cases involving ambassadors are original jurisdiction for the courts. That Congress cannot touch.

[chequita guevara]

Originally posted by Ted Striker
Progressives

Liberals stealing the word progessive from us progressives

[Ned]

Originally posted by chegitz guevara


Yes, there is a method of that, and it is not a constitutional amendment. The Constitution is very clear on the matter. Composition of the courts and what they may or may not hear is the province of Congress. Only matters arising between citizens of different states and cases involving ambassadors are original jurisdiction for the courts. That Congress cannot touch.

Wow. Someone from the left seems to be honest about the Constitution!!! I congratulate you, Che.

[chequita guevara]

I think I might have missed something. Maritime cases seems to be banging around in my head, but I'm unsure.

I read a good chunk of a book called, A People's History of the Supreme Court. Fascsinating, I wish I could read the rest of it. Originally the SC was a circuit court. The justices went around the U.S. hearing cases. The SC did get smacked down hard in the 1790s, arising out of a case in Georgia, where, IIRC, the state basically took the property of some Georgian citizens. This ultimately resulted in the 11th Amendement.

I think a lot of people put too much into this whole seperation of powers thing. The way the government was originally constituted, it seems clear the Framers intended for Congress to be the leading branch of government, but not unlimited.

[Ned]

Originally posted by chegitz guevara
I think a lot of people put too much into this whole seperation of powers thing. The way the government was originally constituted, it seems clear the Framers intended for Congress to be the leading branch of government, but not unlimited.

Well, presidents surely held this view until Jackson.

The problem with the Supreme Court today centers on "substantive due process." Once it was used to declare social economic legislation unconstitutional. Now it is used to rewrite the laws of this country the way the Supremes see fit. The reaction the earlier "Lochner" era of the court was so strong, that the Supremes officially junked the doctrine as unsound, only to have it reappear two years later in Griswold.

Clearly, the role that the Supremes are the ultimate lawmaker in this society is controversial because, as you say, the founding father never intended this.

What we really need is a constitutional amendment that denies the Supremes the power to base any decision on "substantive due process." Either that, or a court that rules, once again, that substantive due process is not a viable legal doctrine.

[Imran Siddiqui]

They don't need substantive due process for the right to privacy, etc. They can simply rely on the 9th Amendment. And in order to get rid of right to privacy, etc, you'd have to abolish the 9th Amendment and say the rights in the Constitution are exclusive federal rights.