Though some news reports had made it sound as though the Eleventh Circuit granted rehearing en banc in the Schiavo case this morning, it sounds from this report that what the Court did, instead, is grant leave to file the petition for rehearing en banc even though it was filed after the deadline that the panel had set. Under this interpretation of what's going on, the petition for rehearing en banc is now being reviewed and voted on. This would make more sense.
UPDATE: The basic argument in the petition for rehearing was that the federal "due process" right to life requires not only clear and convincing evidence in a state-court case like this, but also a plenary federal court review of whether there was in fact clear and convincing evidence. Panel rehearing denied in a one-page order (Wilson, J., dissenting). Rehearing en banc denied -- Judge Birch concurring on the grounds that the Schiavo statute is unconstitutional as a violation of separation-of-powers doctrine, Judges Carnes and Hull (the panel majority) concurring with some thoughts about the merits, Judges Tjoflat and Wilson dissenting with other thoughts about the merits, and Judge Pryor not participating because he's recuperating from surgery (get better soon). Oddly, given how firmly this Court has applied a "waiver" rule to deny relief to criminal defendants who try to raise a new argument (Booker) on petition for rehearing, nobody even broaches the possibility that the Schindlers' new argument is barred by the same principle. I'm not sure because I haven't read everything they filed, but my distinct impression is that the rehearing argument is different from the arguments they made in the District Court and before the panel.
What is the biggest lesson from the Schiavvo tragedy for the American people? Put your Advanced Directive in writing, or end up in the starvation bunker, on the delayed hearsay testimony of someone who is less than devoted, at the hands of the criminal cult enterprise in charge of 3 branches of government.
Who is going to help the public write these Advanced Directives? A rent seeking lawyer profiting from the enforcers on the bench. Gun totting, jack booted thugs will take down little kids bearing bottles of water.
This extends the Rent Seeking Theory to denials of cert at the SC in a spectacular way. Rent Seeking is a nice name for something.
Posted by: David Behar, 2L | April 01, 2005 at 11:31 PM