The Right Coast

March 27, 2005
Bad judge
By Tom Smith

I found this analysis by Hugh Hewitt pretty persuasive. It seems to me hyper-technical to say, as the 11th Circuit apparently did, and as Ann Althouse approves of their doing, that the statute Congrees passed gave federal courts jurisdiction to hear de novo any federal claims TS happened to have, without actually giving her any such claim, if she didn't already have one. Federal jurisdiction is a notoriously tough area (at least I am notorious for not knowing it), but I don't see how this reading makes the statute anything but a nullity-- something you should avoid in reading statutes. So, if the law was intended only to let federal claims be litigated on TS's behalf, why would you need a statute giving federal courts the jurisdiction to do that? Don't they already have jurisdiction over federal claims? On the other hand, if the idea was to let certain state law issues be relitigated de novo as federal issues, well, you would need a statute for that.

Even hard-core textualists would be disinclined to read a federal statute so that it made no new law, especially when the intent was pretty clearly to do something. It is one thing to say, as between doing two things, what the statute actually says, and what Congress seems to have intended, you have to do the former. It's quite another to say you have to do the former, even if your reading of the statute gives it no effect at all. I am also enough of a realist to think what happened here is that the Clinton-nominated judges on the 11th circuit found the TS statute and the way it was passed very distasteful, were out of sympathy with the underlying "pro-life" philosophy, and so were happy to find a reading of it that frustrated Congressional intent. Of course, it is at least as hard to know what is going on inside the brain of a federal judge as it is to know what is going on inside the brain of Terry Schaivo. But in Terry's defense, there is no reason to suspect she is deliberately doing the opposite of what her job is supposed to be.