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Politics : Politics for Pros- moderated -- Ignore unavailable to you. Want to Upgrade?

To: Lane3 who wrote (105714)	3/24/2005 9:05:20 AM
From: Tom Clarke	Read Replies (1) \| Respond to of 793698

Remember the process in the Elian Gonzalez case? Florida courts had decided that Elian should stay with the family, but Clinton sent INS agents down there to take custody. The president could send marshals to do the same thing now, there is a precedent...

To: Lane3 who wrote (105714)	3/24/2005 9:06:09 AM
From: MulhollandDrive	Read Replies (2) \| Respond to of 793698

Good point. But what is important to understand is that, for the government, justice IS process. That's why they talk about "due process." If you think about it enough, you realize that, while imperfect, that's the only way it can be. personally, i would tell the court to take their process in this case and shove it up their a&# nobody, but NOBODY would force me to sit idly by and watch my daughter being starved to death no f'ing INO 'husband' no f'ing judge or no f'ing security guard i would go into that prison where she is being held, cup of ice chips in hand and dare and defy i would test those security guards and dare them to take the cup of ice chips from my hand and if they so much as laid a hand on me to take it way, their would be one hellacious fight and i would be hauled off kicking and screaming probably to jail but NOBODY is going to me as a parent i have to accept the willful killing of my child and watch and wait on the goodness and mercy of others

To: Lane3 who wrote (105714)	3/24/2005 10:54:46 AM
From: carranza2	Read Replies (1) \| Respond to of 793698

Here are the full texts of both the Eleventh Circuit's and the Trail Court's decisions. realclearpolitics.com The only thing I can say is that the Circuit's decision is phantasmagorical. I felt like I walked through Alice's looking glass after I read it. The dissent is in my view absolutely correct. The citation by the majority to the new statute's legislative history in support of its conclusion is strange indeed since it is clearly capable of two constructions. The heart of the legal argument was whether an injunction was proper. Schiavo fulfilled all requirements for being granted one except, according to the majority, the one requiring a showing of likely success on the merits. That traditional injunctive relief analysis was required, according to the majority, was evident from (1) the fact that the original bill's call for automatic issuance of such relief was deleted and (2) the following exchange on the Senate's floor: Mr. LEVIN. Mr. President, I rise to seek clarification from the majority leader about one aspect of this bill, the issue of whether Congress has mandated that a Federal court issue a stay pending determination of the case. Mr. FRIST. I would be pleased to help clarify this issue. Mr. LEVIN. Section 5 of the original version of the Martinez bill conferred jurisdiction on a Federal court to hear a case like this, and then stated that the Federal court "shall" issue a stay of State court proceedings pending determination of the Federal case. I was opposedto that provision because I believe Congress should not mandate that a Federal judge issue a stay. Under longstanding law and practice, the decision to issue a stay is a matter of discretion for the Federal judge based on the facts of the case. The majority leader and the other bill sponsors accepted my suggestion that the word "shall" in section 5 be changed to "may." The version of the bill we are now considering strikes section 5 altogether. Although nothing in the text of the new bill mandates a stay, the omission of this section, which in the earlier Senate-passed bill made a stay permissive, might be read to mean that Congress intends to mandate a stay. I believe that reading is incorrect. The absence of any state [sic] provision in the new bill simply means that Congress relies on current law. Under current law, a judge may decide whether or not a stay is appropriate. Does the majority leader share my understanding of the bill? Mr. FRIST. I share the understanding of the Senator from Michigan, as does the junior Senator from Florida who is the chief sponsor of this bill. Nothing in the current bill or its legislative history mandates a stay. I would assume, however, the Federal court would grant a stay based on the facts of this case because Mrs. Schiavo would need to be alive in order for the court to make its determination. Nevertheless, this bill does not change current law under which a stay is discretionary. Mr. LEVIN. In light of that assurance, I do not object to the unanimous consent agreement under which the bill will be considered by the Senate. I do not make the same assumption as the majority leader makes about what a Federal court will do. Because the discretion of the Federal court is left unrestricted in this bill, I will not exercise my right to block its consideration. 151 Cong. Rec. S3099-100 (daily ed. Mar. 20, 2005) (colloquy between Sens. Levin & Frist). I indeed read the legislative history to say that the mandatory aspect of the bill was deleted because the Senate did not wish to impinge upon the courts' traditional discretion in issuing injunctions. However, it was assumed that a stay would be issued, and that is why Levin did not block the amended bill which deleted the mandatory language. Levin in fact refers to such an "assurance" for the reason why he did not block its consideration. The legislative history can be fairly read to suggest that if there was any chance that the injunction would not be granted, the bill which deleted the "shall" language would not have been passed. This is naturally speculative, but my point is that the majority glossed over this point. No, the legislative history is not completely clear, as the majority suggests. The Senate, stupidly, meeting in the wee hours of the night, assumed that an injunction would in fact be granted but did not enact a bill that positively required one. But that's not all that's wrong with the majority's decision. The dissent was bang on in its analysis of the All Writs Act argument. This is a fairly technical area and I won't discuss it at length--it has to do with maintaining the status quo in aid of appellate jurisdiction. I understand what happened now. The family's lawyers did not screw up, as I originally believed. There was, allegedly, de novo review, but please don't ask me how it can be done in such a short period of time. After reading the dissent, I'd say that the chances of an en banc reversal are a bit better than I originally thought. Not terrific, certainly not a certainty, but better. And this from a lawyer who opposed the bill in the first place, and continues to oppose it as A Bad Thing.