Tuesday, March 22, 2005

Judge James D. Whittemore And The Schiavo Case: A Health Lawyer's View

This morning's Federal District Court ruling is on the books now and is already the subject of much commentary. You can read the ruling here. Hugh Hewitt offers excellent legal commentary here and here.

The interesting thing about judges is that they are human beings, subject to all the human biases and frailties. The notion that they are impartial pillars of objectivity and fairness is silly.

In other words, often judges write opinions to get to the result they want. This should not be shocking to anyone; every lawyer certainly knows it's true.

What About Judge Whittemore?

Take this judge as an example. According to Judges of The United States, Judge Whittmore is
53 years old, a South Carolina native, and was nominated to the federal bench William J. Clinton on October 20, 1999.

Point: Federal judges are politically active people. You can bet Judge Whittemore is a Democrat activist.

In fact, he began his legal career as an assistant federal public defender, in the Office of Federal Public Defender, where he worked for three years.

Point: Judge Whittemore is politically liberal. I have never known a public defender who wasn't.

He was in private practice in Florida from 1981-1990, and probably did criminal defense work. (I don't know.) Then he served as a judge of the Thirteenth Judicial Circuit Court, Florida, from 1990-2000. I assume he was appointed to that seat by Lawton Chiles, a Democrat, who was governor of Florida in 1990.

Point: This was not a judge from which we could expect a courageous or even a thoughtful ruling. The people he probably goes to dinner parties with would never stand for that.

The Decision

I have read Judge Whittemoore's decision and am underwhelmed. What we have here is a judge who got to the result he wanted. In that regard, I find two "cop-outs" and one inexplicable failure, any one of which a different judge would have avoided.

Cop-out 1 is at footnote 3 of the opinion:

Plaintiffs have submitted affidavits of health care professionals regarding Theresa's medical status, treatment techniques and therapies which are available and their opinions regarding how and whether these treatments might improve Theresa's condition. Plaintiffs have not, however, discussed these affidavits in their papers and how they relate to the claimed constitutional deprivations.
This falls into the "see no evil" category. In other words, he's saying, "Hey, this information is in front of me and it's terribly important, but you haven't told me what to do with it so I am conveniently going to ignore it. " He could have asked the plaintiffs (Terry's family) to do more with that information. Judges make such requests all the time. He chose not to do so. Why? The answer probably has something to do with the result he wanted. (See the discussion of his likely biases above.)

Cop-out 2 is at the end of Section B of the opinion, in which the judge rejects the claim by Terry's family that she should have been represented by an independent attorney:

. . . this court concludes that Theresa Schiavo's life and liberty interests were adequately protected by the extensive process provided in the state courts. Defendant Michael Schiavo and [Terry's faily] , assisted by counsel, thoroughly advocated their competing perspectives on Theresa Schiavo's wishes. Another lawyer appointed by the court could not have offered more protection of Theresa Schiavo's interests. Accordingly, Plaintiffs have not established a substantial likelihood of success on the merits on Count II.
Well. Frankly, that is a defensible conclusion. It was not, however, one that the judge had to reach after reviewing a handful of affadavits. He chose to do so, even though he could have requested additional briefing from the parties on the issue. Judges do that all the time, too. Why didn't this judge? Again, see the section above about Judge Whittemore's probable political leanings.

The inexplicable failure. The judge, as Hugh notes, could have ordered the resumption of the feeding tube pending an appeal. For that matter, he could have ordered the resumption of feeding and hydration pending the parties' submission to him of additional argument on the two "cop-out" issues noted above. Again, judges do that all the time. Why didn't Judge Whittemore? See above.

The real source of our frustration. The problem here is that courts are terrible places to resolve these issues. Believe me, I've been there more than a few times on similar matters for my hospital clients. The real battle for our society to is decide what the "moral imperative" will be in right-to-die cases. I agree with what James Q. Wilson said yesterday:

[T]he moral imperative should be that medical care cannot be withheld from a person who is not brain dead and who is not at risk for dying from an untreatable disease in the near future.
Those of us who feel this way need to persuade a fellow citizens that Wilson is right, and the courtroom's not the place for that battle. In fact, this whole Schiavo situation is a mess; for example, the Congressional decision to create a special right of appeal for Terry may well have been unconstitutional.

The silver lining, however this all works out, may be the attention it has focused on serious moral issues like euthanasia (called "physician-assisted suicide" by those who want to see it become a reality). We've got hearts and minds (and votes) to win, folks. We can't depend on judges to get our society to the place it needs to be. We have to do the hard work of convincing people that there does need to be a moral imperative and what it should be. It won't be easy but it will be worth whatever effort we give to it.


Anonymous Anonymous said...

Yep, the coda is the key -- we gotta win the hearts and minds and VOTES so we don't feel we have to depend on the judges. 

Posted by Steve Finefrock

Tuesday, March 22, 2005 5:11:00 PM  
Anonymous Anonymous said...

Just a minute pardner!!! I am an attorney and I work for the Missouri State Public Defender. Calling me a leftist is fightin' words! As a member of The Federalist Society and someone who has to turn left to see Limbaugh, I can assure you there is not a leftist bone in my body. I pray nightly that Clarence Thomas will be the next Chief Justice and proudly voted for Bush in the last two general elections. (I also have a great picture of Ted Olsen and myself at a Federalist Society Student Symposium when I was in law school.)

And guess what, I'm not the only conservative-libertarian in my office, or even in the whole system. You didn't know any public defenders who weren't liberal. You do now! Many of us who practice criminal defense law in Southwest Missouri happen to be stalwart conservatives. We enjoy the action of criminal practice and like sticking up for the individual against the almighty power of the omnipresent state.

Now, as far as your dissection of the horribly written Schiavo opinion - DITTO. Except I do believe Congress has constitutional authority to expand jurisdiction of a federal court in this manner. What the leftist secularists are really peeved at is that Congress did not bow down before the third branch and had the temerity to assert their proper authority. If the courts are not the final arbiter of social and cultural issues, where will the left advance their agenda? That's what makes this Schiavo matter so important to the left.


Posted by Mike Lutke

Tuesday, March 22, 2005 7:13:00 PM  
Anonymous Anonymous said...

The refreshing and rare Mike Lutke notwithstanding, I drew the same analysis you did when I read Whittmore's bio courtesy of AP this morning, staring incredulously at the statement that he is not politically active. Thank you for verifying my assumption.

Caught you on Hugh this afternoon! 

Posted by Laer

Tuesday, March 22, 2005 7:48:00 PM  
Anonymous Anonymous said...

Hi Lowell,

I'm a health care lawyer in Texas. I am so glad to find another one who agrees that Terri's death should not be facilitated.

Your post is so much more eloquent and erudite than anything I have written on the subject that I was hoping you are older than me. LOL--you're not. 

Posted by Sue Bob

Tuesday, March 22, 2005 8:01:00 PM  
Anonymous Anonymous said...

Congress ordered the Federal District Court to conduct a DE NOVO proceeding in the matter of Terri Schiavo.

It was NOT an instruction for the District Judge to contrive his own 4 part test BEFORE conducting that proceeding.

The language of the legislation stipulated "SHALL" not "may." He was not given discretion in the matter, rather an order.

Nor was he to conduct a brief review of the legal procedures that obtained throughout this long legal dispute. Congress could have done that. NO, Congress effectively found that the way Florida handled this matter was wanting. Which is why it instructed the Florida District Court to commence a new proceeding, AND NOT BE BOUND by previous findings of fact, or law.

Notwithstanding the clarity of the legislation, this Judge bound himself to Greer's findings of fact.

The eyes of the nation, indeed the world were on this guy, and he feels brazen enough to ignore CLEAR Congressional direction.


Posted by Dan McCuen

Tuesday, March 22, 2005 8:48:00 PM  
Anonymous Anonymous said...

Steve, my friend: Yes.

Mike Lutke: I take back my overbroad statement about "PD's." I still think that you are a rare bird, as Laer suggests. I think you would have been even more rare back in the late 70's when Judge Whittemore got his start as a PD. There weren't many conservative libertarians in those offices. (Correct me if I am wrong.)

Laer: Right. A federal district judge who is not politically active would be like a duck without feathers.

Sue Bob: Come to the AHLA annual meeting in San Diego this June. Maybe we can meet!

Dan McCuen: Yes.

Posted by The Hedgehog

Tuesday, March 22, 2005 9:49:00 PM  
Anonymous Anonymous said...

No Harm, No Foul!

But I, like Mr. McCuen, am greatly troubled by the apparent brazen disregard of the law by these federal judges. But I should not be surprised. Congress is beholden to the people, silly peasants, who need to be reminded about deferring to their betters.

The law says a DE NOVO review is in order. In my little area of red state practice, de novo means brand spankin' new hearing with no deference given to the prior rulings of any court. But then, I went to a state law school and don't know any better.


Posted by Mike Lutke

Wednesday, March 23, 2005 5:53:00 AM  
Anonymous Anonymous said...

Thank you Hedgehog for digesting, and providing, some of the clearest thinking on this terribly confused and misunderstood topic. I was impressed by Charles Krauthammer's piece  but disappointed that he failed to see that Congress acted because of the dereliction in the Florida courts despite all the evidence that makes him (and the rest of us) uncomfortable with following the spousal presumption. I am afraid that much of the public simply wants this case to "go away" in large part because too many of us are uncomfortable dealing with the moral dilemma that these cases present. It's much more convenient for us to treat this as a "private" decision that we just don't want to know about than to face the reality that all of us have an interest in an articulated, enforceable public policy that can indeed protect the most vulnerable against possibly conflicting self-interests of those we like to presume will make the "correct" decision, regardless of whether it is right. 

Posted by BlueBuffoon

Wednesday, March 23, 2005 7:43:00 AM  

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