For whatever it's worth, I'm going to venture a legal prediction in the Schiavo case.

I would be greatly surprised if the Circuit Court of Appeals should grant the appeal, and thus order the District Court to change its ruling, and allow (require?) the reinsertion of the feeding tube.

Why? Here's why:

The ruling by the Florida District Court was a ruling on a motion for emergency action pending the hearing of the case. In ruling on such a motion the judge has to, "on the fly", so to speak, size up whether the movant/plaintiff is likely to prevail when there is a final hearing. The judge is forced to make that prediction, just by the nature of the emergency relief asked for. It is seldom that an appellate court takes such a matter out of the trial court's hands, and does or should upset that kind of a decision.

In this case the District Court judge said, in effect, "It seems unlikely that, on hearing, the plaintiffs (the parents, if you will) will be able to show that Terri Schiavo's interests did not recieve due legal process in the courts of Florida" when over a period of fifteen years nineteen separate Florida judges had dealt with the case, through numerous hearings, and all of them ruled in favor of the husband's position, and it was appealed to the Supreme Court of the United States, who declined to find such a legal failure.

It is, of course, POSSIBLE that, when the hearing in the District Court is finally held, Judge Whittemore might find a lack of due process, but that seems unlikely, and we're not dealing with that eventuality at this point. That's a fight for another day.

The District Court did not at this time rule on the constitutionality of the hurried and badly written jurisdictional legislation under which the case was presented to him, I expect largely because courts mightily resist making such constitutional findings. But that issue is there, and is a VERY real issue. In the end it may be found that the District Court did not even have jurisdiction because the legislation was unconstitutional.

And even if the Circuit Court of Appeals were to rule (as I do not expect) that the District Court was wrong in his ruling on the emergency request pending the hearing, the matter would be taken immediately to the Supreme Court, and for the reasons above I don't believe the Supreme Court would go along with their reversal. Actually, I'm sure that whoever loses in the Circuit Court of Appeals will run posthaste to the Supreme Court.

I say all of the above based on 36 years of experience working for a US District Court, in daily contact with legal proceedings, and many times with such requests for temporary relief pending final resolution. No, I'm not a lawyer, but I can represent that I am a well-informed layman on this subject.

It must be remembered, of course, that (aside from legalities) there are and will be tremendous political pressure on both sides. The courts should--and I say "should"--rule entirely on the legal facts and questions, but judges are human and are sometimes swayed by pressure.

Dave Oesterreich