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

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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.