Prof. Kerr on Schiavo

Over at Volokh.com, Prof. Kerr seems to be doing most of the writing on the Schiavo case.

Caveat: I'm not a lawyer.

However, I just feel the need to wonder aloud what is he trying to get at when I read him write this:Hewitt ends his post by giving me an assignment: "Orin should answer the question: Did Congress intend Terri Schiavo to die before a de novo inquiry into the circumstances surrounding her condition was complete?" The truth is, I have no idea. I don't know who Congress is, or who to ask to find out what this Congress person thinks. I don't know what kind of deals were struck and compromises reached behind closed doors that led to the legislation that passed. I have no idea whether the legislators who expressed views on the record as to what they expected the legislation to do were a) accurately reflecting the sense of most legislators; b) merely expressing the intent of a number of legislators; c) only articulating the hope of a few; or d) simply trying to please particular interest groups by stating the law they supported would achieve a particular result even though they knew the law would do no such thing. My point is that it doesn't matter which of these is true. The law is the statute that Congress passed, not the expressed intent of particular legislators or articulated understandings of particular commentators. Emphasis mine.

A body with five bullet holes lays on the ground and nearby a gun with shell casings is found.

I suppose Prof. Kerr would say it is possible that the dead person died of natural causes.

On a Friday, the feeding tube was removed. Over the weekend, legislators flew back to Washington DC to hammer out a law and the President flew back to sign it after midnight. I think we have a pretty good idea what the intent of the law was.

If Kerr's point A and B are true, then Kerr believes the law as written doesn't do what they want it to do and the Federal Courts failure to act is consistent. Then Kerr believes Congress messed up in the writing of the law with insufficient specificity and should just SAY SO.

If Prof. Kerr's point C and D is valid then that means some/most legislators voted just to "look good" to the voters back home. If Kerr believes our legislators are that cynical then again, Kerr should just SAY SO.

If Prof. Kerr thinks that Congress oversteps its boundaries in passing the law, he should just SAY SO.

Instead, we are treated to his speculations of the cynical motivations of the legislators and hypertechnical justifications of why the Federal Courts acted as they did.

On a personal note, I would not want to be in any of the shoes of the people involved in the Schiavo case. It is just too sad to contemplate and that is why I've not blogged about it. My gut feeling is if there is doubt about Mrs. Schiavo's wishes and doubt about her diagnosis then those should be given a hearing. In the end, the result might be the same but at least let's put everything on the table.

UPDATE: I only now though of checking Hewitt's site for a response which is here.