Susan Estrich
Friday, March 25, 2005

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  And then the rest of the table, including a few extremely large donors, weighed in. Cynic that I am, I kept my mouth shut. So did the senator. Why didn't anyone stand up for the 13 state judges and for the rule of law, someone asked. You know they're playing politics, why not challenge them, someone urged vigorously.

And he said, "Susan can explain it to you." No one better than a cynical columnist to explain an act of pure political expediency.

You know they're going to win. They have the votes. They've decided to do it. Why force everyone back to town, so you can give them ammunition to be used against individual members. Our senator was a thousand miles away when he was told by the leadership not to come back. He knew less than me, who watched the whole thing while yakking on TV.

You give them the bill. And everybody takes cover. No one stands up and says, "Have you no shame, Mr. President."

That's what a good many people have been waiting to hear.

What are you doing to this woman, to our system, to the rule of law?

No one even stands up there and says: Who drafted this piece of something, and did he ever take federal courts in his life, and learn about what it actually takes to get a stay?

And then the House passes it, and it becomes law.

I'm not sure whether the Republicans in Congress did this on purpose or not. I read the bill, ice cold, and could tell just based on what I know as a law professor in the field that they were very unlikely to get a stay. I have talked to colleagues and, without regard to ideology, everyone agreed.

More to the point, everyone agreed that there were certainly ways that the bill could have been written to increase the likelihood of granting a stay, and the Republicans didn't do it. Now, they could've passed anything. They had the votes.

That it might ultimately prove unconstitutional is less important than ensuring that you have standards for issuing a stay that will protect the court's jurisdiction.

Congress might have said that the federal courts should, must even, issue all necessary orders to protect their ability to exercise jurisdiction to conduct a de novo review, or fresh review.

Instead, the district court is given jurisdiction to conduct a fresh review, but is left to apply the usual equitable rules to grant a stay. Those rules always require a substantial likelihood of success on the merits.

Clearly, you are never going to meet that in a case like this, because meeting that, one way or another, involves saying the 13 state court judges who spent seven years on this case (and were upheld by the Supreme Court four times) were wrong, or that the process they afforded was unconstitutional.

Congress may have had the intent, as my friend Sean Hannity keeps pointing out, to give the parents an opportunity to have a de novo review in the federal courts, but the fact is that they built into the standard for making the most important decision – the stay decision – a conclusion about the likelihood of the parents' proving that the state judges were wrong. Now where I come from, we call that a set-up, or a C paper.

In order to get your de novo review, you have to get a stay first. In order to get a stay, you have to prove that there is a substantial likelihood that you will actually succeed in the de novo review that you'll now never get.

That is what is driving Sean crazy, because that's not de novo review. That's second-guessing. It's deferential review, not de novo review. But you can't blame the courts for that. Blame Congress. Blame the Republican drafters. That's how they wrote the statute.

And so it has come to pass.

As I write this, the Supreme Court has now completed the cycle. The federal judge turned down the Schindlers, on just those grounds; he was upheld, two to on and then 10 to two, and the Supreme Court has now turned down the case. The legal door is closed. They can't go back to federal court again.

What are they going to do? Go back to Congress for a new law for Easter Sunday, and try to restart this process. There would not seem to be time for that, and besides, the Republicans would look too foolish.

Outside Terri's hospice, it is reported that the judges are treated with derision. Unfair. Judges enforce the law, as all of us have made it, to resolve these disputes. They even enforce the law, as a cowardly Congress passed it, on Monday morning. With no one there in the Senate to challenge it on principle, and everyone eager to toss it back to the federal courts, they were not only gutless but sloppy, and fatally so.

COPYRIGHT 2005 CREATORS SYNDICATE, INC.

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