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Napolitano Calls Bush's Signed Schiavo Law - an Abberation

Reported by Ellen - March 22, 2005

Before Shepard Smith spoke with Judge Andrew Napolitano on Studio B today he had some words of his own. He said that (paraphrased) 'after a trip through all of the branches of the U.S. Government, Terri Schiavo's life is in the hands of the U.S. Court of Appeals and the question is -- did she want to die and they've been treating her wrong all this time as court after court, after court, after court, after court (yes, he said 5 courts) and I could go on, have ruled --- or --- would she have wanted to be kept alive. Because this is about Terri Schiavo, not about a Congress, not about a president, not about a family, blood relatives, her husband or whatever -- it's about Terri Schiavo.'

Around six minutes later, Judge Andrew Napolitano joined him and they spoke about the next step. Smith said that the Federal judge had ruled against reinserting Terri's feeding tube. He continued to say that the Federal Judge had said her life and liberty interests were protected by the State Courts that ruled before him and now it would go on to a 3 person panel in the 11th Circuit Court of Appeals in Atlanta. He asked Napolitano about this court.

Napolitano said that the 11th Circuit Court of Appeals was 'mostly' Republican appointed judges, they were not activist judges and they were neither considered liberal or conservative, they were a fairly balanced court. 3 judges out of the 12 will be picked randomly by computer (who installed those computers? Just a joke) He said they heard appeals from three states, Florida, Georgia and Alabama. He also said they didn't hear the 10 Commandments appeal (but didn't explain why), but they had heard the Elion Gonzalez case and decided that there would be no interference in Janet Reno's decision. He also explained that whichever side loses this appeal can then ask all 12 judges to rule.

Napolitano thinks that the 3 judge panel will affirm what Federal Judge James Whittemore did in the court below. He said that so many judges had reviewed what happened in Florida and there is 'no credible evidence' that Florida violated anyone's rights in the manner that the decision was made to remove the feeding tube.

Smith said that Napolitano had been right before (Napolitano did predict this yesterday per our thread) and this would then be sent to the U.S. Supreme Court.

Napolitano said that it had been turned down twice by the Supreme Court before, but it (the Supreme Court) could look at it differently now, it may want to rule on the constitutionality of this law that Bush just signed into existence.

Smith interjected that 'they would not really be ruling on Terri Schiavo but the law that they rushed back and put together on Palm Sunday'. (Note religious reference)

Napolitano said that the U.S. Supreme Court could do that or they could also say they don't want to get involved. He said the U.S. Supreme Court does not have to give reasons when it takes a case and it doesn't have to give reasons when it doesn't take a case.

Napolitano continued by saying there is one thing that the U.S. Supreme Court cannot do and that is to take this case 'after' Terri Schiavo is no longer alive. He said that U.S. Supreme Court cannot take cases which are 'moot', where the party is no longer actively involved in the case. Smith said she had lived for 2 weeks once before when they had removed her feeding tube and that the 11th Circuit Court is not a slow court. Napolitano agreed saying that he thinks they will move quickly and that they were spread out over the three states, FL, GA and AL and would do their communication via email, telephone and faxes. Then, they would vote.

Smith asked Napolitano if he thought the U.S. Supreme Court wanted to make noise about the law that the president signed. Napolitano said, "I don't think they will. I think they know the law was an 'aberration', there has never been anything like it in the past and once the Schiavo case is over, the law is history and (he said snidely) maybe the Congress won't do it again." Smith replied, "Maybe."

Comment: Smith's inflection, tone and words say that he doesn't really understand why this wasn't settled a long time ago since court after court has decided this way. Napolitano seemed a bit peeved, like Congress had mettled in where it didn't belong.

Reported by Donna

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