Terri Schiavo's father sensed that things were not going his way. The Associated Press reported that Bob Schindler looked "grim" after leaving U.S. District Judge James Whittemore's courtroom following a tense hearing Monday afternoon on the Schindler's request to have a feeding tube re-inserted into their daughter. Turns out a father knows.
On Tuesday morning, Judge Whittemore declined to order the tube re-inserted. It is an initial but telling victory for Michael Schiavo and his supporters and a ominous but not unexpected defeat for the Schindlers, their supporters, Congressional leaders, and the president.
Applying the traditional test for determine whether and when an injunction is appropriate, Judge Whittemore ruled that the Schindlers were unlikely to prevail on the merits of their claims so that the extraordinary preliminary relief they had sought -- i.e., the reinsertion of the tube pending the outcome of the case -- was inappropriate.
The judge told the Schindlers and their attorneys as much in court on Monday, which is surely why Bob Schindler left the courthouse under a cloud. As an indication of just how little the judge thinks of the Schindler's case on the merits, the ruling comes even though the injury to the rights of the Schindlers by keeping the tube out -- their daughter's looming death -- is enormously more significant than the injury to the rights of Michael Schiavo if the tube were reinserted.
Although I'm sure there are paroxysms of anger on Capitol Hill right now, the ruling isn't a terrible surprise and certainly isn't out-of-bounds legally. In fact, no constitutional scholar I spoke with Monday (or over the weekend) believes that the Schindlers would have prevailed (or will ultimately prevail on appeal) even despite the dubious efforts of the Congressional leadership to help them out. Some legal experts predicted that the federal courts wouldn't even hear as much as Judge Whittemore did -- these folks figured the federal courts would reject the case out of hand after declaring the new law unconstitutional.
Other constitutional professors (and little old me) figured the federal courts would order the feeding tube reinserted but then ultimately give Michael Schiavo a permanent victory under the theory that all of the parties in the case, including Terri Schiavo herself, had fully and fairly received every conceivable due process right available. And still other law professors told me that there were so many things wrong legally with what Congress had done over the weekend, and so many reasons why the federal courts would defer to the Florida rulings, that the trial judge would essentially have the pick of the litter in determining precisely why the Schindlers would lose.
Now, none of this analysis and speculation guarantees that we can't or won't see a dramatic turnaround even over the next few hours. The Schindlers will file an emergency appeal with the 11th U.S. Circuit Court of Appeals in Atlanta -- in fact, I bet they were drafting the papers Monday night even before Judge Whittemore's ruling came down. The federal appeals panel will be able to move very quickly. (I also bet that Michael Schiavo's attorneys have their court papers ready, too, to defend what Judge Whittemore has just done). We probably will have an appeals court ruling in a matter of hours and then the losing side will appeal to the United States Supreme Court, which also has a lot of practice in turning around emergency appeals. The whole process very likely will take less than a day.
When the judges of the 11th Circuit look at the case, they will be determining whether Judge Whittemore "abused" his discretion in denying the injunction. This standard of review makes it more difficult (but not impossible) for an appeals court to overturn a trial court. The question on appeal will be whether a majority of the judges who look at the case agree with Whittemore that the Schindlers ultimately cannot win. If the judges are anything like the scholars I spoke with on Monday, the answer to that question, for any number of reasons, likely will be "no." And then the case will go to the Supreme Court, where it will be even harder for the Schindlers to gain a reversal. As a general rule, the higher up you go on appeal, the less your chance of reversal.
Meanwhile, back on Capitol Hill and at the White House, supporters of the brand-new, made-for-Schindlers-only legislation, having fired all of their bullets over the weekend, can only sit back and watch the federal courts review their work. Remember that even though Congress declared with its new law that the federal courts have jurisdiction to hear the Schindler's constitutional claims it is still up to federal judges themselves to interpret Congressional action in light of the Constitution and common law precedent. Congress and the president could and did lead the federal judiciary to water but it could not, it cannot, make it drink.
What happens if the Schindlers succeed in getting either appellate court to reverse Judge Whittemore? The feeding tube would be reinserted and the judge would hold a hearing, maybe even some sort of evidentiary hearing, to look more closely at the constitutional issues involved. What happens if the Schindlers lose their appeals? This tragedy will then be down to its final few acts. I do not think that Congress can get involved again -- legislators didn't just get close to the line of unconstitutionality over the weekend, they obliterated it. And surely the federal courts, if they reject this round of litigation, are not going to entertain a new one. Meanwhile, the Florida courts are done with the case and the president has no authority to countermand the courts.
Bob Schindler was right to be grim yesterday. And he has even more cause to be grim today.