Debating a moot point

Radio Blogger has the transcripts of Hugh Hewitt’s debates with two law professors about the adequacy of the federal courts’ handling of the Terri Schiavo case. The first transcipt is of Hugh’s debate with Professor Jonathan Adler. The second is of Hugh’s discussion with Professor Orin Kerr and former prosecutor Andrew McCarthy. The latter agrees with Hugh that the courts failed to do what Congress intended that they would do. This is the best, most-balanced, discussion of the issue that I’ve seen on the web.
I agree with Hugh. Congress intended (and said) that the federal courts would decide de novo whether Terri’s federal rights were being violated. De novo review basically means a fresh review that does not defer to factual findings made by other courts. The federal courts prevented de novo review from occurring because they refused to stop the court-ordered termination, by de-hydration, of Terri’s life. She will die before there is time for the de novo review mandated by Congress to occur. That would not be the case had the the temporary relief that was sought been granted. Thus, in my view the courts flouted the law that Congress passed.


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