"TRIAL BY LEGISLATION"

CBS legal analyst Andrew Cohen on the wider implications of the Schiavo legislation:

QUESTION: What does that concept do the regular give and take between the court systems, the idea of comity and cooperation between judges?

ANSWER: It destroys it. But that's the whole point of this Congressional action. Not liking a particular result in a case that has been litigated fully and completely by a court with competent jurisdiction, Congress now has said that the game must be re-done with new rules that heavily favor one side over the other. The implications of this move are astonishing. Just think about it. Anytime Congress doesn't like the result in a particular case, it could swoop in and call a "do-over," which is essentially what this legislation represents. And this from a Congress that has for a decade or so tried to keep all sorts of citizens-- including disabled employees-- out of federal court. If this law is declared valid, no decision in any state court in the country will be immune from Congressional second-guessing. It would throw out of whack the entire concept of separation of powers. The constitutional law expert Tribe calls it "trial by legislation" and he is right.

QUESTION: You are getting agitated again. Doesn't the legislation specifically say that it does not "constitute a precedent with respect to future legislation, including the provision of private relief bills"?

ANSWER: Yes, it says that. But so what. It said that the last time Congress did this and it didn't stop Congress from doing this now. Look, there is no other way to put it: this is the most blatant and egregious power-grab by one branch over another in my lifetime. Congress is intruding so far into the power of the judiciary, on behalf of a single family, that it is breathtaking. It truly will be fascinating to see how federal court judges react to this-- whether they simply bow down to this end-run or whether they back up their state-court colleagues. And it will be interesting in particular to see what the Supreme Court does with this case. Even the conservatives on the High Court-- and the Chief Justice in particular-- must be concerned about the precedent this sort of legislation would set.

At first I was surprised that a Clinton nominee, District Judge James D. Whittemore, would be conducting the hearing this afternoon. I was sure a staunch Bush supporter would be the Chosen. Then it hit me like a ton of bricks: the Repugs don't WANT to succeed. This is all a ploy to blame "liberal activist judges" for doing what they know is right, er, I mean correct.

QUESTION: So you are saying that it is not a slam dunk that this effort by Congress ultimately will succeed even in getting another round of substantive hearings on the merits of Terri Schiavo's rights?

ANSWER: That is exactly what I am saying. And I will go a little further. I'm also saying that there are probably some smart folks on Capitol Hill who are supporting this legislation knowing that ultimately the courts will strike it down. That way, being the politicians that they are, they will be able to blame the heartless judiciary for the result and still will be able to say to their constituents that they tried their best. It is the politics of cynicism at its very best (or very worst).