Schiavo Anyone? Or Another Plea About the Charge of Hypocrisy
Let's think first about what this bill does. Admitting to some ambiguity in the text, it does not appear to me to mandate a new trial (though it permits one) on the facts of the case, and it certainly does not appear to require a re-evaluation of state law de novo. So all that Congress has done here is to give mandatory appellate review jurisdiction to the district court. By mandatory, I mean that the Schindlers got their day in court which had been denied with the denial of the writ of certiorari by the Supremes. But as Justice Stevens argued today in the Supremes' denial of cert. in the cases challenging the recess appointment of Judge Pryor in the 10th Circuit, denials of cert. do not speak decisively to the merits of a case. So the District (and now, presumably, the 11th Circuit) will take a (slightly) longer look at this case than the federal courts have to date. The almost exclusive reliance on the cert. process by the Supremes is a 20th century phenomenon; it may be a good thing, but it is not mandated by the Constitution. So the Congress runs afoul of no Constitutional principle in passing this law. It is a curious law, to be sure, in being limited to one case, but that also does not run afoul of any constitutional provision or tradition. So, to the extent that Prof. Tribe was making arguments last night on Newshour in claiming that this bill was unconstitutional, he was not making good ones.
Nor are the rule of law arguments very persuasive, particularly when we consider that the sources are people who typically think state courts very unreliable in working with life and death issues (peruse some old death penalty editorials from the Times or Post if you want a flavor of that). All that has been done here is that a federal judge has been given jurisdiction to review what went on. There is nothing in the text of the law telling the judge how to come down, there is no alteration of substantive law, no creation of new rights, etc.. So it is hard to see how this offends against any meaningful conception of the rule of law. It may be improvident as a use of Congressional power, but that would seem to be up to Congress to decide if they want to spend their time, Solomonically, solving family problems. And they will have to face the voters over that. Stephen Bainbridge argues that the rule of law concern is that this amounts to a case of ex post facto lawmaking, which is not allowed under the constitution. But in our system it is well settled that that is only an absolute prohibition with respect to criminal laws. And since there is no change to the substantive law or rights at issue here, the only mucking with the rule of law is a mucking with procedural rules that are basically rules of convenience (particularly the cert. process). To imagine that a minor alteration of cert. review creates a rule of law problem is a stretch to me. The same logic basically applies to his other rule of law arguments: no change in the substance and a minor change in procedure does not alter the separation of powers.
As to Federalism concerns, there is no legitimate worry here either. It is baffling to me why people persist in such simplemindedness in analyzing these issues. Is the Federal Government trying here to upend any state law? No. It is simply granting to a lower court the jurisdiction to hear claims of federal right de novo. That is at best a minor federalism problem, if you think that an important part of federalism is allowing state courts to adjudicate claims of federal right. But allowing this review does not offend against that principle, particularly when one considers that this is limited to a single case. Again, that limitation may be foolish, but it is not an offense against federalism.
So the charges of hypocrisy in this case are truly bizarre, it seems to me. Since the law does not offend against federalism, federalists are not hypocrites for supporting it. (For the record, I think they are wrong for supporting it, but just because I think it's imprudent to get involved in a single family's case in this way, particularly when the odds of success appear remote.) Since the law does not offend against the rule of law, there is no reason "law and order conservatives" violate their principles for supporting it. On the other hand, and herein lies the oddity, for people who are typically suspicious of the states and in favor of federal correction of state policies (and state courts) to try to make this an issue of federalism is really rich. It shows that they are essentially hypocritcal, or ignorant of the meaning of federalism, or both. (My arguments here imply that it is both).
Finally, another plea, perhaps even against myself, against the charge of hypocrisy anyway. If I call my opponent in an argument a hypocrite, I have made an ad hominem attack with respect to the issue at hand. That is, I have not shown him wrong, I have shown him inconsistent, at best. Further, when I argue that he is being inconsistent with principles that I myself reject, why am I "charging" him with something, rather than celebrating his conversion to my point of view?
Let us bury charges of hypocrisy in such arguments.