The law must govern our courts.

In the spirit of Law Day it is timely to address the most unfortunate venom that has recently been directed at the federal and state judiciaries arising out of the Terri Schiavo sadness. The current attack on judges reflects a serious lack of knowledge about the independence of the judiciary, which is a part of the fabric of our society, and of the rule of law that governs how judges decide cases.

After Congress intervened in the judicial system by extending federal court jurisdiction to a single case that had already been thoroughly considered in the Florida judicial system and rejected by the U.S. Supreme Court, to my knowledge no writer or speaker has addressed exactly what issues were presented to the U.S. district court and the 11th Circuit Court of Appeals.

Considering issues

A fundamental point that must be understood is that courts consider the issues they are asked to decide, and only those issues. They must then apply existing law and precedent to resolution of those issues as they would to any other similar issue, and be consistent about it.

What were the issues that were presented to the federal courts after the passage of the recent special congressional act?

First, the special congressional act gave jurisdiction to the U.S. District Court for the Middle District of Florida 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 life." Congress did not say that the court could determine whether the parents or the husband or the state court judge were right or wrong concerning the withdrawal of a feeding tube.

This limited grant of jurisdiction initially prompted five claims by the parents of Theresa Schiavo claiming the violation of 14th Amendment, Due Process, Equal Protection and Freedom of Religion fights.

Based on these claims, a temporary injunction was sought requiting the invasive procedure of reinserting the feeding tube pending a final determination of these claims.

The district court judge was required by his oath of office to consider these claims; to apply the law applicable to each of these claims; and to follow long-standing decisional precedent concerning when, and under what circumstances, a temporary injunction may be issued. To obtain such an injunction there must be a showing of a substantial likelihood of success on the merits on at least one of the claims. The district court judge carefully analyzed each claim and found that based on existing case precedent there was actually no constitutional right that was implicated, or if implicated, violated. Concerning the ruling of the Florida state court judge which the district court judge was called upon to review, he stated plainly:

"By fulfilling his judicial responsibilities the judge was not transformed into an advocate merely because his rulings are unfavorable to a litigant.... [N]o federal constitutional right is implicated when a judge merely grants relief to a litigant in accordance with the law he is sworn to uphold and follow."

In rejecting each of the claims, the district court judge was required to find under established law it could not be said that ultimately the claimant would prevail on the merits of any of them. He so found. So, the district court judge had no choice but to deny the request for the injunction. The judge followed the law he was required to follow and concluded with confidence that he was following the law correctly, even though the court acknowledged and concluded: "This court appreciates the gravity of the consequences of denying injunctive relief. Even under these difficult and time strained circumstances, however, and notwithstanding Congress' expressed interest in the welfare of Theresa Schiavo, this court is constrained to apply the law to the issues before it."

The district court judge went further, kept the door open for a second chance and said he would consider any other claims that might be timely presented. The decision was affirmed by a majority of a three-judge panel of the 11th Circuit Court of Appeals that, after its own careful analysis, ended with this conclusion:

"There is no denying the absolute tragedy that has befallen Mrs. Schiavo. We all have our own family, our own loved ones, and our own children. However, we are called upon to make a collective, objective decision concerning a question of law. In the end, and no matter how much we wish Mrs. Schiavo had never suffered such a horrible accident, we are a nation of laws, and if we are to continue to be so, the pre-existing and well-established federal law governing injunctions as well as Pub. L. No. 109-3 [the congressional act that gave the federal courts jurisdiction in the Schiavo case] must be applied in her case."

The invitation of the district court judge to consider other claims was accepted by the parents of Mrs. Schiavo, who amended the complaint to make five more claims. These new claims were based on claimed additional violations of the 14th Amendment and various federal statutes, such as the Americans with Disabilities Act.

As to each of these claims, the district court was required to, and did carefully, analyze existing case law and the wording of the statutes to determine who had a fight to make such claims; against what parties such claims can be asserted; whether the claims came under the statute or Constitution at all; and most importantly, whether there was a showing that the threshold for issuance of a preliminary injunction and its requirement of a showing of a substantial likelihood of success on the merits had been met on any one of the counts. The court could not so find and denied the claims.

The 11th Circuit Court of Appeals panel, conducting its own careful analysis of these claims, also could find no support in law for them. The judge who had dissented to the first decision of the three-judge panel of judges agreed, stating as to these new claims: "I concur in the result for the reason that the plaintiffs have been unable to come forward in their second amended complaint with any new claims palpably alleging the denial of a right secured by the Constitution or laws of the United States."

III-conceived 'fix'

The district court judge and the 11th Circuit Court of Appeals judges thus decided the case by (1) addressing the issues presented, and (2) applying the existing law and precedent they were obligated to follow, and reached a decision that was not based on their personal judgment as to who was fight or wrong in the dispute. They were not empowered to, and were not asked to, decide whether the parents or the husband had the fight to make the life-and-death decision that captured the attention of the nation.

Sadly, some of our national leaders, who should know better, have taken these decisions as the proof that will justify an ill-conceived and misguided attempt to do something to "fix" the judiciary in order that they might make the "right" decisions.

Several years ago I had the privilege of visiting the Soviet Union with a group of American lawyers. We met with Russian lawyers as well as lawyers from all over the Soviet Union. In one of our meetings the topic of the need for an independent judiciary was discussed. At one point, an angry Russian lawyer stood up and bravely stated: "We will never have an independent judiciary in Russia until telephone rights are abolished."

We pressed him as to just what he meant by "telephone rights."

He told us that it was the right of the local Communist Party official to call up a judge and tell the judge how the case should be decided in accordance with the party line. Stunned by such an aberrant concept, the American lawyers looked at each other and silently expressed their personal and communal appreciation for the independence of the judiciary so well embedded in our country.

Those who advocate "fixing" decisions of judges that are not in agreement with the outcome an American party official determines should be the correct outcome, rather than one based on law and precedent, must understand that what they propose is nothing more and nothing less than the institution of telephone rights in America; this would be destructive of our judicial system that, warts and all, has served this country and its people with majesty and justice while giving the people reasonable assurance that the judgment in their case will, in the end, be based on the law and not the personal feeling of the judge or some political functionary.

Our courts and judges must decide only the issues presented to them based on the law they must follow. To do otherwise would be to violate their oath of office.

Judge-bashing ill serves us all and demeans and diminishes our rights under the Constitution and laws of this country. More important, it causes disrespect for the rule of law and the independence of the judiciary enshrined in our Constitution and accepted by our people for more than 200 years.

Donald H. Partington is a senior member of the law firm Clark Partington Hart Larry Bond & Stackhouse in Pensacola.