Can Hugh Hewitt count ?

He writes

of Wittemore's ruling against temporary restraining order requested by the Schindlers

"But it is a wholly different matter when a court simply ignores the obvious intent of an overwhelming majority of the Congress"

The bill passed the Senate by voice vote with 3 Senators present. 3 is not an overwhelming majority of 100 and the House of Representatives is not the Congress. Hewitt ignores the fact that Congress specifically deleted a provision which would have required a stay and that Senator Frist, speaking on the floor of the Senate, stressed that the courts were free to grant a stay or not.

Mr. FRIST: "Nothing in the current bill or its legislative history mandates a stay."

That, however, was meerly something said by the proposer of the bill on the floor of the Senate. Only an activist judge would give as much weight to that as a press conference. I am not joking. Hewitt cites a press conference in his construal of the meaning of the law "Tom Delay, in the Sunday press conference where this was announced, stressed that the legislation had been crafted to get Terri back on hydration and nutrition pending a de novo review of the facts in federal court." I wonder if this is the first time that anyone has claimed that judges are bound by statements made ex podium in a press conference.

Also note that congress does not seem to feel bound by the 14th amendment (the law explicitely gives special rights to parents of Theresa Marie Schiavo) so why couldn't they have passed a law requiring that any request for a TRO made by Theresa Schiavo's parents be granted or, for that matter tht Theresa Schiavo('s body) be feed and hydrated ?

Brad Delong is a bit too eager to make a pun of Frist and First so I can't tell which theory he finds more attractive 1) that Frist didn't bother to consult a lawyer and didn't know that for a TRO you need irreversibility of consequences without a TRO (clear in this case) and a reasonable chance of winning the case (clearly absent in this case) or 2) Frist wanted to make sure that Schiavo('s body) dies before the facts of the the case were made clear to the public. I, for one, don't pick the first.

Orrin Kerr notes that the courts are supposed to apply the law not follow the guidance congressment give them in press conferences.

Jeffrey Dubner notes that no American judge who should be less acceptable to Hugh Hewitt is named Antoni Scalia who wrote "It is the law that governs, not the intent of the lawgiver."

It might seem odd that Scalia believes in following the intent of the founding fathers and ignoring the intent of congress (I know this is Rhenquist's view I am not sure of Scalia. One might even suspect it has something to do with his outlook being closer to 18th century than 21st century (in particular it is 13th century not 12th and not certainly later). If I recall correctly the logic of the position is as follows -- if judges ruling contradict the aims the legislature they can change the law (just as they can if the intent changes as a result of further thought or elections or stuff), however it is hard to amend the constitution, so judges should put less faith in their reading of the plain meaning of the words. There is, of course, a rational which makes me agree with justice Scalia. Thomas Delay has immense power in Congress and wasn't alive in 1789, but, while names can, it seems, be written into laws, they are not to be used in motivating judicial doctrine.