How Appealing

Sunday, March 20, 2005

“Radio takes up effort to save cross; Talk shows held at site with hosts pushing signature drive on the air”: The San Diego Union-Tribune contained this article yesterday.

Posted at 11:48 PM by Howard Bashman

“Wine giant Bronco’s case may hit wall at Supreme Court”: Yesterday’s edition of The Napa Valley Register contained this article.

Posted at 11:40 PM by Howard Bashman

“Solo voice on the High Court”: Monday’s edition of the Israeli newspaper Haaretz contains an article that begins, “On Wednesday, when he retires, Yaakov Turkel will talk about the essence of his most recent rulings as a High Court justice, at a special ceremony attended by all his colleagues.”

Posted at 10:58 PM by Howard Bashman

“John H. Pickering Dies at 89; Attorney Co-Founded D.C. Firm”: Monday’s edition of The Washington Post will contain an obituary that begins, “John H. Pickering, 89, a renowned appellate lawyer and founding partner of Wilmer, Cutler and Pickering, which would become one of the city’s leading law firms, died March 19 at the Washington Home hospice after a stroke.” You can access more biographical information at this link.

Posted at 10:50 PM by Howard Bashman

“Personal Trials Fuel A Fight For Equality”: Monday’s edition of The Tampa Tribune will contain an article that begins, “After all these years, the Hooters case still bothers Gilbert Casellas.” Gil served as hiring partner at Montgomery, McCracken, Walker & Rhoads when I joined that law firm after my judicial clerkship on the U.S. Court of Appeals for the Third Circuit.

Posted at 10:45 PM by Howard Bashman

“Congress May Fight Court on Global Front; Some Conservatives Worry That Jurists Too Often Cite International Precedents”: Jess Bravin will have this article (free access provided) in Monday’s edition of The Wall Street Journal.

Relatedly, in Monday’s edition of USA Today, Gary Bauer will have an op-ed entitled “Disorder in our high court.” And yesterday in The Ventura County Star, columnist George Sjostrom had an essay entitled “Supreme Court’s life tenure should be abolished.”

Posted at 10:32 PM by Howard Bashman

“Court Tackles Town’s Role in Child Safety; 3 Daughters Died When Colorado Police Refused to Arrest Banned Father”: Charles Lane will have this article Monday in The Washington Post.

Posted at 10:28 PM by Howard Bashman

An opposite view regarding Article III standing of parents: A law professor emails:

Regardless of what one thinks about the constitutionality or wisdom of this law or the merits of the underlying case, Theresa Schiavo’s parents clearly satisfy the Article III minimum for standing. You mean to tell me I suffer no injury in fact if my kid dies? I hope I never find out, but I can bet that if one of my kids did die — even after they grew up and I was no longer their guardian — I’d “in fact” suffer lots of injury. Whether or not the death of my kid violates my constitutional rights, I’d certainly suffer injury. That the proposed statute wouldn’t authorize the parents to sue to vindicate their own constitutional rights, so it’s irrelevant that they have no such rights here. The statute eliminates the prudential doctrine forbidding third-party standing and allows the parents to vindicate Theresa Schiavo’s rights (if those rights were in fact violated). Nothing in Lujan prohibits that.

Thanks much for the email.

Posted at 10:20 PM by Howard Bashman

“MAJOR constitutional flaw in Schiavo Act!!!!” Thanks to all the readers who have responded thus far to my earlier post discussing whether the proposed federal legislation in the Terri Schiavo matter is constitutional. One email raises a particularly interesting point:

Here’s a concern that I haven’t seen raised re the Schiavo bill passed by the Senate, S. 653.

Section 1 reads as follows:

“The United States District Court for the Middle District of Florida shall have jurisdiction to hear, determine, and render judgment on a suit or claim by or on behalf of Theresa Marie Schiavo for the alleged violation of any right of Theresa Marie Schiavo under the Constitution or laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.”

Section 2 purports to give Schiavo’s parents standing “to bring suit under this Act,” to review “de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act.”

Of course, Congress cannot “award” standing to someone who lacks Article III standing. Article III standing is only present where, per Lujan, the plaintiff has suffered injury in fact, caused by the challenged action, redressible by the court.

Schiavo’s parents do not have any such standing. They are not the legal guardians of Schiavo — her husband is. (Or the Court is, ad litem; I can’t recall which right now.) As nonguardian parents to an adult child, I fail to see how the parents enjoy standing to enforce Terri’s constitutional/statutory rights. Congress certainly can’t circumvent this constitutional problem.

I don’t know whether this next observation is directly on point, but as I noted here back in December 2003, various U.S. Courts of Appeals have divided over whether the U.S. Constitution’s due process clause protects a parent’s right to the companionship of his or her adult child.

Posted at 8:50 PM by Howard Bashman

“Senate Passes Legislation on Schiavo Case”: The Associated Press provides this updated report. According to the article, a vote is scheduled in the House of Representatives for 12:01 a.m. Monday. The House was unable to act on the legislation today due to the lack of unanimous consent to pass the law in the absence of a roll call vote.

Posted at 7:00 PM by Howard Bashman

“A well-planned jumble: Dr. Albert Barnes saw art not as a discipline of facts and figures, but as a vehicle connecting mortal history; To experience his genius unaltered, move quickly.” This appreciation of The Barnes Foundation appears today in The St. Petersburg Times. The article overlooks that an appeal remains underway challenging the order authorizing The Foundation’s move from its current suburban location to central Philadelphia.

Posted at 6:15 PM by Howard Bashman

“If You Were a Democrat”: This judicial filibuster-related editorial will appear in the March 28, 2005 issue of The Weekly Standard.

And today in The Day of New London, Connecticut, Marianne Means has an essay entitled “The Judicial Blame Game” that begins, “President Bush has heaped new coals on the partisan bonfire that threatens to consume the Senate over his crusade to stack the federal bench with extreme right-wing judges.”

Posted at 6:00 PM by Howard Bashman

Is the federal legislation in the Terri Schiavo matter constitutional? News reports indicate that the U.S. Congress is likely today to pass legislation similar to that approved late last week in the U.S. Senate, and President Bush will then sign the provision into law. The bill that the Senate approved late last week can be accessed here.

For purposes of this discussion, I employ the term “constitutional” in its traditional sense, and thus the answer to this question depends on the text of the U.S. Constitution and the precedent established by court rulings definitively construing that document. I do not employ the term “constitutional” to encompass whether the arguments in favor of or in opposition to the law are more convincing as a matter of policy or whether I would vote in favor of or against the law if I were a legislator.

Section 1 of the legislation provides:

The United States District Court for the Middle District of Florida shall have jurisdiction to hear, determine, and render judgment on a suit or claim by or on behalf of Theresa Marie Schiavo for the alleged violation of any right of Theresa Marie Schiavo under the Constitution or laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.

Section 2 then begins by specifying that Terri’s parents will have standing to bring suit under the new law.

As a structural matter, it appears to be within the power of the U.S. Congress to create a cause of action to redress a violation of the U.S. Constitution and/or federal law “relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain” a person’s life, assuming that such laws or constitutional rights in fact exist. A more difficult question is whether such preexisting substantive federal rights can be enforced against a private person (namely, Terri Schiavo’s husband) or whether such rights are only enforceable against someone acting under color of state law. In any event, I anticipate that the parents will sue a variety of defendants, with an eye toward ensuring that the federal rights in question are enforceable against at least one or more of the defendants.

Section 2 of the legislation goes on to provide:

In such a suit, the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings.

In my view, Congress does not act unconstitutionally in denying full faith and credit to a state court judgment in a federal court proceeding, because the obligation for a federal court to afford full faith and credit to a state court judgment arises by means of federal statutory law, and not under the U.S. Constitution. Article IV of the U.S. Constitution requires that the courts of one State afford full faith and credit to the rulings of courts of another State, but that provision of the U.S. Constitution does not apply to federal courts. A federal statute — 28 U.S.C. sec. 1738 — requires federal courts to give full faith and credit to state court rulings. What Congress requires in an earlier federal statute Congress is free to take away in a later enacted statute. (Indeed, the U.S. Supreme Court has recognized that Congress has the power to repeal partially the full faith and credit act.) Thus, the denial of full faith and credit in federal court to a state court decision does not give rise to a federal constitutional issue in my view.

Those who find the soon-to-be-enacted federal law objectionable have two main arguments. The first is that a law of this kind is heretofore unheard of. Yet that does not necessarily make the law unconstitutional. And the second main objection is that all that is guaranteed to result from the legislation is much additional delay; a different result in federal court is far from assured. From the perspective of the legislation’s proponents, however, if a different result cannot be achieved, then the second-best outcome is accomplishing significant delay in the implementation of the current outcome.

There assuredly are many persuasive reasons to be opposed to this new law as a matter of policy. But that, standing alone, does not make the new law unconstitutional. If I have overlooked any constitutional arguments (and be assured that what I have already written does not overlook “federalism”), please let me know what they are, how they are relevant, and how you think those arguments ought to be resolved.

On this morning’s broadcast of NPR‘s “Weekend Edition – Sunday,” two well-respected law professors offered additional commentary on this subject in a segment titled “Schiavo Case Sets New Tone in Congress.”

Posted at 2:33 PM by Howard Bashman

In today’s edition of The Los Angeles Times: In news relating to Terri Schiavo, the newspaper contains articles headlined “Congress Gives Parents a Voice in Schiavo Case; An unusual measure that applies only to the Florida woman would allow appeal to a federal court; Bush will return from Texas to sign it” and “How the Private Became Political.”

A news analysis is headlined “Off to a Running Start, How Far Can GOP Go?

And Law Professor Catharine A. MacKinnon has an op-ed entitled “Smut’s Insidious Threat” that, among other things, discusses “Amaani Lyle’s suit against Warner Bros., soon to be argued before the California Supreme Court.”

Posted at 1:44 PM by Howard Bashman

“Nuclear Options”: That’s the title of William Safire’s “On Language” column today in The New York Times Magazine.

The Cincinnati Enquirer today contains an editorial entitled “Nix the ‘nukes’ on Senate nominations.”

The Courier-Journal of Louisville, Kentucky contains an editorial entitled “Flipping over filibuster.”

The Republican of Springfield, Massachusetts contains an editorial entitled “Peace in the Senate a must, not an option.”

In The Baltimore Sun, Gail Gibson has an essay entitled “Senate heads for showdown over filibuster; A dispute over judicial confirmation votes could lead to a radical rule change once considered unthinkable.”

And in the March 28, 2005 issue of Time magazine, Joe Klein will have an essay entitled “The Creative Stubbornness of Harry Reid: The Senate Democratic leader keeps the GOP in check.”

Posted at 8:40 AM by Howard Bashman

“Securing the courts: Without a state standard for courthouse security, precautions vary from case to case, courtroom to courtroom, county to county.” This article appears today in The Free Lance-Star of Fredericksburg, Virginia.

Posted at 8:20 AM by Howard Bashman