Judge Weighing Schiavo Case

U.S. District Judge James Whittemore has heard from both parties in the Schiavo case and is reportedly weighing the issues.

ABC News: Federal Judge Weighs Florida Right-To-Die Case (Reuters)

A federal judge weighed the fate of a brain-damaged Florida woman on Monday, acting hours after the U.S. Congress and President Bush intervened to push the highly charged right-to-die case back into court. U.S. District Judge James Whittemore began a hearing shortly after 3 p.m. EST to consider a request from Terri Schiavo’s parents to reinstate tube feeding for their 41-year-old daughter that was halted three days ago. CNN reported that the judge gave each side 30 minutes to make their case.

[…]

An ambulance was standing by at Schiavo’s hospice in Pinellas Park, Florida, to take her to the hospital for the possible reinsertion of the feeding tube. Feeding was halted on Friday under order from a Florida court. Schiavo was expected to live for a week to two weeks without the feeding tube that has sustained her since a heart attack deprived her brain of oxygen in 1990.

The courts have long sided with Michael Schiavo in ruling that she is in a persistent vegetative state and would not want to live in this condition. Appeals have failed and until now federal courts have turned the case back to state courts.

Whittemore’s ruling almost certainly won’t be the end of things, given how long this has dragged out.

Radio host Glenn Beck had a guest on today speculating that last week’s Congressional subpoena of Terri Schiavo will be one likely venue for litigation. Unless this law is declared unconstitutional–a distinct possibility to be sure–there is now a federal question at stake and the possibility exists therefore that the ludicrous order for a a woman who will never be able to testify to testify would in effect require her to live with a feeding tube forever to avoid contempt of Congress charges.

Update (1753): Bloomberg gives the misleading headline “U.S. Judge in Schiavo Case Withholds Ruling on Feeding Tube” to the story.

A federal judge declined for now to order a feeding tube reinserted in Terri Schiavo, the brain- damaged Florida woman who has been in a vegetative state for 15 years. U.S. District Judge James Whittemore, after hearing arguments for about two hours in Tampa, gave no indication of how soon he may act on a request by Schiavo’s parents to order the tube inserted. “I will not tell you when, how or how long it will take,” Whittemore said.

The man has a heavy burden to bear under incredible public scrutiny. He’ll need time to get up to speed on the facts of a case that he’s only been eligible to rule on for a few hours. Even so, one presumes the answer will come soon, even as early as tonight, given the exigencies of the matter. A week from now, the case will in all probability have become moot.

Update (1806): AP has a similar headline and offers a cryptic hint at how Whittemore’s decision might go.

Judge Won’t Issue Decision on Schiavo Yet

Armed with a new law rushed through Congress over the weekend, the attorney for Terri Schiavo’s parents pleaded with a judge Monday to order the brain-damaged woman’s feeding tube reinserted. But the judge appeared cool to the argument. U.S. District Judge James Whittemore did not immediately make a ruling after the two-hour hearing, and he gave no indication on when he might act on the request.

[…]

During the hearing, David Gibbs, an attorney for the parents, said that forcing Schiavo to die by starvation and dehydration would be “a mortal sin” under her Roman Catholic beliefs. “It is a complete violation to her rights and to her religious liberty, to force her in a position of refusing nutrition,” Gibbs told Whittemore. But the judge told Gibbs that he was not completely sold on the argument. “I think you’d be hard-pressed to convince me that you have a substantial likelihood” of the parents’ lawsuit succeeding, said Whittemore, nominated by former President Clinton (news – web sites) in 1999.

Interesting. Supreme Court justices have been known to play Devil’s Advocate during oral arguments in order to evaluate the strength of their position. I don’t know if trial judges do that, let alone whether this one is, but I wouldn’t read too much into this.

(2123): Parents beg judge, but tube stays out (Miami Herald)

Lawyers for Terri Schiavo’s parents begged a federal judge Monday to order her reconnected to a feeding tube, but the judge expressed some skepticism about their highly publicized case and did not issue an immediate ruling. ”I think you’d be hard-pressed to convince me that you have a substantial likelihood” of ultimately winning the case, U.S. District Judge James Whittemore of Tampa told the parents’ lead attorney. That is the usual threshold for the issuance of a preliminary injunction. The comment came during a 90-minute showdown hearing on the lawsuit filed Monday by Schiavo’s parents — a predawn legal initiative authorized hours earlier by a special act of Congress and the signature of President Bush.

Whittemore, who frequently and futilely asked the parents’ lawyer to cite constitutional precedents for this case, could issue a decision at any moment. The losing side is expected to file a swift appeal.

One suspects no decision is forthcoming tonight, although that’s just a guess. Most reports do seem to indicate an uphill battle for the Schindlers.

Theologian J. Grant Swank (via GoogleNews) is “puzzled” by Whittemore’s statement that, “I will not tell you when, how or how long it will take.”

Is it that he is so overcome with complexities that he̢۪s driven up his own judicial tree? Or is it that he̢۪s going to bask in his own judicial power limelight for his fifteen minutes, believing that whatever decision he makes will span out for an eternity of acclaim? Or is the judge one overly sensitive mortal who is bound morally to a multi-dimensional circumstance so that he̢۪s imploring the Lord for guidance and hasn̢۪t received it yet?

[…]

Wouldn’t you think that every judge in the world has journeyed in his and her brain on this issue so as to come to his and her conclusion. “If only I were asked my decision, I’d do thus and thus.” Isn’t that what one would figure when it comes to a judge being handed the grand power at this juncture?

In other words, the judge hasn’t just been handed this matter today. Not. He’s been like the rest of us — hearing about it, reading about it, discussing it. Therefore, being a judge with a judge’s way of deliberating on complexities, surely he has formed an opinion. Then why not carry out that opinion with decorum and intelligence, with a judge’s logic and breadth of experience — soon?

This consternation is understandable from a theologian’s standpoint. From a judge’s standpoint, though, the landscape was utterly changed by Congress’ action this morning. The judge now has to deal not only with the complex issues of the Schiavo-Schindler dispute with with newly created constitutional law issues that arose with the federalization of this case.

Swank is right, though, that the clock is ticking.

(2249): From tomorrow’s NYT: U.S. Court Begins Consideration of Schiavo Case

After two hours of tense and often emotional arguments, Judge James D. Whittemore of Federal District Court refused to rule immediately on whether to restore nutrition to Ms. Schiavo, a severely brain-damaged woman whose husband won a state court’s permission to remove her feeding tube last Friday. Judge Whittemore also expressed doubts about whether a federal review could change the ultimate outcome and seemed skeptical of the parents’ contention that the state courts had violated Ms. Schiavo’s right to due process. The delay disappointed Ms. Schiavo’s parents and others who have asked the federal court to swiftly order the tube reinserted and halt Ms. Schiavo’s demise.

Judge Whittemore, who was nominated by President Bill Clinton in 1999, was randomly selected by computer to preside over the case after Congress passed an extraordinary law early Monday morning allowing Ms. Schiavo’s parents to seek a federal court review of the facts.

While their lawyer said that Ms. Schiavo, who had already gone more than three days without food or water, “may expire as I speak,” Judge Whittemore appeared to be taking the calculated risk that she would survive while he deliberated.

FILED UNDER: Law and the Courts,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Mary Husak says:

    Judge needs to step up and give Terri her life . He has no right to play God. God says let Terri live.

  2. James Joyner says:

    Odd way of showing it, no?

  3. Peaktalk says:

    THE MARKET OF LIFE AND DEATH
    So a federal judge has now adjourned the hearing and postponed making a ruling in the Schiavo case for an undetermined period of time. The affair continues to generate a fairly intense debate with many weighing in, note for instance…

  4. bryan says:

    That’s a helluva calculated risk, I’d say.

  5. John Burgess says:

    The last Guardian ad litem had to go through 30,000 pages of transcripts, and that was back when the FL legislature tried to do an end-around. Whittmore has hardly had time to familiarize himself sufficiently with a case that had been a droning noise in the background for the past 15 years. Unlike the theologial, and those now fully engaged in the issue, he had more pressing matters before his bench.

    But I notice that slagging him off needs no decent interval. Already he’s being accused, directly or not, of having pre-judged the case; of ‘sticking up for the other judges’; of being a ‘liberal death advocate.’

    An awful lot of people don’t seem to have a any problem at all with a kangaroo court, so long as the decision goes the way they think best.

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  8. will says:

    How do we get eMail, telegram, smoke single, whatever to this insipid coward of a Judge. DUH – feed the lass pending resolution. How hard is that? I wonder if he has restricted his own water / food intake whilst he ponders the “difficult” decision on whether or not to murder this woman?

  9. MICHAEL says:

    If this child dies, then all who had a hand in it shall be judged accordingly by the Father. May GOD have mercy on your souls. AMEN. MICHAEL

  10. Irene says:

    Words cant express how disgusted and saddened I am by your decision. You did NOT read all the information and see that Michael suddently rememembered this living will not 7 yrs after the event but 10 years. Shameful. We wouldnt starve a dog to death.

  11. Jennifer Meisner says:

    I can’t believe what is happening in the Terry Shiavo case, I think Judge Whittemore and Mr. Shiavo should be charged with murder , it is disgusting to me that a co-called judge should be able to act as God,her parents should have the right to care for their daughter,take a closer look at the so-called loving husband!!!!!!!!!!!!!
    The Legal system especially the judges should have their feeding tubes pulled,they are being paid too much for their unbridled power. Ms. Meisner

  12. Joyce Magnussen says:

    I have a commet for Judge James Whittemore:

    BURN IN HELL

  13. Dimitra Cilento says:

    It seems that Michael Schaivo has more rights than Terri”Shaivo”. A disabled women not a coma tose patient on life support. “His” doctors want us to believe there is no hope for Terri. As some of the main stream media is trying to misleed us.
    Where is the legal document that Terri states her wishes? Or is this just the desire of a death focused should be “Ex Husband”? Why is Terri still legally married to an adulterer? Terri ” Shaivo” should have rights that are truly hers to be considered not someone else.

  14. Barbara says:

    this is an outrageous, unspeakable situation in which her “husband” seems to get what he had wanted all along: get rid of his wife! How can anybody who is right in his mind do this to a defenseless person. If you did this to an animal in my country you’d go to prison.
    How desperate must her family feel about the “approved” killing of their child. This is an unspeakable crime and I don’t understand that there is no-one who can stop this. Shame on the US!!

  15. Nancy says:

    I, too, am ashamed to be an American. Something needs to be done to stop husbands,judges, legislators from killing handicapped people. Kavorkian is in prison now for assisting in a death.
    I think the husband, judges, legislator’s who are assisting in death should be tried and sent to prison. Husband’s, judge’s, legislator’s have no right to kill Terry Schiavo.

  16. jane says:

    James, there is nothing artificial about food and water. SIMPLE. And WE are ALL terminal, yet we continue to eat and drink. SIMPLE. The truth IS SIMPLE. There is no need of long deliberations…their length only shows that it is not right to stop feeding Terri. The truth is SIMPLE, easy, and fast. James, this is your chance to make a right decision. You hold anothers life in your hands. Don’t let her starve! take care of her and feed her. I’m begging you on her behalf be a hue-man of color and light…FEED ME!!! GIVE ME WATER!!!
    i love the US! i love being an American,…the EAGLE…yo! the eagle! FEED HER!!! Don’t shoot the eagel from its fight. from its gliding flight! Let it LIVE! LET IT LIVE!!!LET IT LIVE!!!!!PPPPPLLLLEEEEAAASE!!! I have a dream. An American dream, truely…this is crushing…PLEASE for the love of God FEED HER!

  17. mandy says:

    is there a way i can contact judge Whittemore??? I have a petition from almost 200 high school kids and i need to contact him reguarding it. please e-mail me back!
    THANKS!
    mandy

  18. Diane Moore says:

    Attn: Judge Whittemore, Anyone with a brain knows that what your decision has caused is not only heartbreak for the the parents, but has given a supposed husband (that let me remind you has gone on with his life and has another family) This is cruelty in its finest hour. Although I keep reading that the majority of the American public believes the tube should be removed, I have not found anyone yet that agrees with your decision. Terri is receiving worse treatment than would be acceptable to the ASPCA. So if you have 1 year olds that can’t feed and water themselves, well heck let’s just let them die of starvation and dehydration. You should desolve the ‘husbands’ rights…..everyone I know (and don’t start to think I am some fanactic…I’m not, but I do have common sense and common decency) will consider you a murderer if Terri dies. You should be tried as such. You have overstepped your bounds..you obviously have no conscience.
    Diane Moore, American Citizen, Mother, Grandmother, Voter

  19. Alisa Sewell says:

    A comment for Judge Whittemore:

    You are a coward and a murderer. I can only pray that my children’s lives never rest in your incapable hands. You are an embarrassment to your fellow Americans, and right now, I am not feeling very proud to be an American. How can this happen to someone here, now…in 2005!? We treat animals with more dignity and respect. You, Mr. Whittemore, have decided to withold a basic human necessity from Terry, thus ordering her death.

    It would be considered inhumane to allow a mass murderer to starve to death as an alternative to an injection or the chair. And no way would a court allow the process to begin without all avenues exhausted! Even the lowest of the low criminals are given their last meal before being put to death. Why is Terry’s life not as valuable to you as a common criminal or an animal?

  20. Lynn says:

    Please Please Help Terri

  21. reuebn febus says:

    You sir have no right in my book to hold a seat on the bench. Terri Schiavo is being subjected to starvation and dehydration,in short, a death sentence for no crime that she has committed outside of living in a time when this countries moral and ethical values have gone to pot. An animal would not be subjected to this kind of treatment, how then a human being? To say that this is not murder is to delude yourself and separate yourself from the guilt associated by the oncoming potential death of Ms Schiavo. You are clearly responsible now as the ball is in your court.In the name of all that is decent,let her live at least until further tests are done. The husband’s motives are questionable at best, and if there is the slightest doubt concerning her condition as stated by Dr. Cheshire then that alone is motive to re-insert her feeding tubes.

  22. Lillard says:

    I don’t know who is in charge but this message MUST get to the person in control over Judging the right for Ms.Terri Schiavo. I was at one time in a coma for over 2 months. I remember all in and before as well as after. SHE IS ALIVE! She may not be able to communicate like we ” un ” communicate. She is aware of all going on around her and as I saw broadcast she is very aware of what is happening. She does NOT want to die. If she did she would withdraw not communicate. I was in my coma as I said 2 months. I remember when they had me in a death bag. I was trying to scream and shout I was alive do NOT kill me. No one heard as I screamed and carried on. By the grace of GOD! I moved enough in status for someone to notice I still had a feable heartbeat. They rushed me to Redding Memorial and I live and have had children and finished highschool as well as some collage. PLEASE DO NOT LET HER DIE! She is trying her best to let all know she is ok Support her!!!!! DO Not Murder… her.

  23. Ashley Hennen says:

    This judge needs to let this poor little lady live. He woulden’t want someone that he loves and cares about suffer, so why let her? You have no right. You are a cold hearted selfish pig. Only reason you are doing this is so you can get publisitiy. Hasn’t people went to jail for letting people starve? What makes you any different? You should go to jail. This is murder! Starving someone that is living is plain out murder. She is basically like a infeant. She can’t tell you she’s hungrey so you’re going to take full advantage of this. I think that whoever lets this poor little women suffer like this should be put in jail. Suffering is suffering. You have no right to tell someone of they can live or die. That’s not your job. Trust me, this is not the last time you’ll be hearing from me!!!

  24. United States Judges ARE NOT gods and NEVER WILL BE because MOST OF THEM LACK WISDOM.

    JUDGES WHO LACK WISDOM WILL NEVER HAVE IT, AND THOSE WHO HAVE WISDOM ARE BLESSED BY THE GRACE OF GOD.

    FURTHERMORE, JUDGES WHO ARE INTELLIGENT, EDUCATED, AND UNDERSTAND THE U. S. CONSTITUTION ARE NECESSARY CONDITIONS TO BECOME A JUDGE, HOWEVER, THEY ARE NOT SUFFICIENT.

    A NECESSARY AND SUFFICIENT CONDITION FOR ANY PERSON TO BE A JUDGE OR A JUDICIAL NOMINEE IS THAT HE HAS WISDOM.

    UNFORTUNATELY, NONE OF THE JUDGES IN THE TERRI SCHIAVO CASE HAVE DEMONSTRATED ANY WISDOM!

  25. bill says:

    When God picks your number its time to go!
    It seems to me that these henchmen in black robes love to play God, there hellbent on expresing their political agendas at any cost,TERRYS life is not, in my opinion something a judge should make a decision on, thats Gods job!.If God wanted TERRY dead it would have already taken place,this poor girl is still fighting to live, how in Gods name could it be humane to starve someone to death and just stand by and watch!Folks the end must be near because it seems to me that my AMERICA IS GOING TO HELL!

  26. Maura Williams says:

    With all due respect to the Honorable U S District Judge, U S District Court for Middle District of Florida, James Whittemore, please explain how your decision differs from Dr. Kavorkian’s actions and consequential prison sentence and are you packing your bags to join the good doctor in his cell?

  27. Barry says:

    What is up with these judges? were they picked on in school? unable to get dates so they are making Terri pay for it?

    Why cant the police start a investigation into a possible attempted murder case?

    We need to purdge the system with these so called judges and start over.

  28. Tammy says:

    It’s a dark day in the United States when an animal has the right to food and water or the owner can be jailed and fined, but these asinine, heartless judges are legally denying the same for a disabled brain damaged woman. Judges Greer, Whittemore, and the 11th Circuit Court are all going to leave a legacy they share with Hitler and the Nazis – they all signed the death warrants for the disabled. I’d ask how Michael Schiavo can stand to see Terri die so painfully and horribly, but he’s nothing more than a monster and pure evil so I guess that’s how he does it. I make no apologies when I say that I sincerely hope that Michael Schiavo, his demon attorneys, every single one of the judges, and everyone else who has been an accessory to Terri’s murder ALL face the exact same situation that Mr. and Mrs. Schindler have had to endure! I hope there is no legal hope for them at every turn just as they have done to the Schindlers. I cannot ask for God’s mercy on them because anyone who would murder a disabled brain damaged person in no way deserves mercy!!!!

  29. Jennifer says:

    Judge Whittemore, Can you GUARANTEE BEYOND A SHADOW OF A DOUBT that Terri’s body does not feel hunger or thirst? If you cannot guarantee that, you will have Terri’s slow death of hunger and thirst on your list of things to answer for when you face God Almighty on judgement day. You are being judge over her life and God will judge you in your decision over this . If God doesn’t see this the same way you do you will have murder on your list of things to answer for. In my opinion, you or her husband should not decide if she has the food and water her body needs to stay alive. God will take her when he is ready. Jennifer

  30. Alisa Sewell says:

    Since when is food and water “extraordinary means” to keep someone alive?

  31. darrell cummings says:

    I see only one way to stop this hate for the constitution,STOP voting democrat and republician, I tried to talk to people about the Canstitution Party before the questional election,and most said they would waste their vote,instead they wasted their basic rights,wasted their soldiers lives, their ecomony, their Soc Sec,their fuel prices etc,and letting judges play God with our loved ones.
    If we replaced judical sys.,the president,the senate, the house of representives with homeless people off the street would be great improvement, vote anything BUT NOT Democrat or Republician,please people do SOMETHING!!!!!!!!

  32. Sandra Mangold says:

    Judge James Whittemore, Please help us to understand how you can allow this to happen to Terri. She has committed no crime, but being punished. The courts has put people in prison for not feeding animals, and I know Terri is more than an animal. What will happen to all the other sickly people in Nursing Homes or hospitals who can’t help themselves. Will they be put to death also? Why would you listen to her husband who wants to remarry and has been abusive to her over her parents who love her? Our Heavenly Father will not tolerate this kind of treatment very long before he will take action. God have mercy on your soul when your day comes, and it will come.

  33. Joyce Magnussen says:

    This is an article in the Wichita Eagle, Local & State section, Monday, March 28, 2005 (Kansas)

    It has happened slowly, with small bites and short sentences, but progress has been constant for a Hutchinson woman recovering from the brain injury she sustained in an accident twenty years ago.

    Sarah Scantlin made headlines last month when she uttered her first words since being left bedridden and unable to communicate after a drunken driver struck her in 1984. Scantlin was 18 when she was hit while walking to her car in Hutchinson.
    Now 38, she has come further than anyone imagined. Doctors and therapists at the University of Kansas hospital find something new that Scantlin can do every day. She can answer questions and read Dr. Seuss books.

    Last week she swallowed food on her own for the first time in 20 years. Today, she is scheduled for surgery to straighten her feet, to give her a chance to walk again.