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Even as the legal battle to save Terri Schiavo’s life ended late last week with her death, controversy reigned. Federal judges, facing continuing criticism, took to publicly defending their actions. And the victorious lawyers in the fight greeted the news of Schiavo’s passing with solemnity. “Everything about this case was tragic,” says Jenner & Block D.C. partner Thomas Perrelli, an appellate specialist who got involved in the litigation in 2003 on behalf of Schiavo’s husband, Michael Schiavo. Over the past two weeks, Perrelli appeared before the 11th U.S. Circuit Court of Appeals twice to argue the case on behalf of his client. Each time, the appeals court declined to intervene in the case of the brain-damaged Florida woman. Last week, the full 11th Circuit heard a request from Schiavo’s parents to reconsider their arguments that their daughter should be re-nourished immediately. Ultimately, the court rejected the request, and the U.S. Supreme Court again followed suit, just as it had a week earlier. Schiavo, 41, died March 31, almost two weeks after a feeding tube was removed at the behest of a Florida court order. After Schiavo’s death, conservatives in Congress, who two weeks ago pushed through a bill that moved the family dispute over Schiavo’s life into federal court, threatened to punish the judiciary for its refusal to intervene. “The time will come for the men responsible for this to answer for their behavior, but not today,” House Majority Leader Tom DeLay, R-Texas, said in a statement following Schiavo’s death. Jenner & Block partner Robert Portman, who also worked on the case on behalf of Michael Schiavo, found DeLay’s remarks troubling. “My personal view is that it’s Congress that’s out of touch with the people,” Portman says. “The rhetoric I read in the paper this morning, the veiled threats to the judiciary coming from certain congressmen, that cuts to the core of our constitutional structure of government.” JUDGES EXPLAIN THEMSELVES The 11th Circuit rejected the Schindlers’ petition March 30 in a one-page court order. However, three judges siding with the majority took the opportunity to offer fuller explanations of their decision. In a 14-page concurring opinion, Judge Stanley Birch Jr. wrote that the March 21 law enacted by Congress and President George W. Bush requiring federal courts to review the Schiavo case was unconstitutional and undermined the independence of the judicial branch of government. “If sacrifices to the independence of the judiciary are permitted today, precedent is established for the constitutional transgressions of tomorrow,” wrote Birch, who was appointed by Bush’s father in 1990 and is known for socially conservative views. Just two 11th Circuit judges, Gerald Tjoflat and Charles Wilson, voted to rehear the Schiavo case and to consider whether the removal of life support might violate the due process clause of the Constitution. Judge William Pryor Jr. — a controversial Bush recess appointee whose term expires at the end of the year — did not participate in the decision because he is recovering from eye surgery. Tjoflat, a 1975 appointee of President Gerald Ford, dismissed Birch’s arguments. Joined by Wilson, a 1999 appointee of President Bill Clinton, Tjoflat wrote that it is fully within Congress’ power to dictate standards of review. “Indeed, if Congress cannot do so,” he continued, “the fate of hundreds of federal statutes would be called into serious question.” Tjoflat’s argument that the full court should have reviewed the Florida court’s handling of the Schiavo matter prompted a response from Judges Edward Carnes and Frank Hull, who made up the majority in a three-judge panel against Wilson’s dissent last week. “[T]here is no substantial question in this case,” they wrote, “about whether a rational factfinder could have found, as the Florida court did, that there was clear and convincing evidence that Mrs. Schiavo would not have wanted nutrition and hydration continued in these circumstances.” CRASH COURSE Jenner & Block first got involved in the Schiavo case in 2003, after the Florida Legislature passed a law allowing Gov. Jeb Bush to reinstate Schiavo’s feeding tube. Jenner & Block was recruited to handle appellate issues for Michael Schiavo. In addition to Perrelli, Jenner & Block D.C. partner Portman and several associates have been heavily involved in the case. In 2004, the Jenner & Block team, along with Michael Schiavo’s longtime lawyer, George Felos, won a number of victories in Florida courts, culminating in a favorable decision from the Florida Supreme Court in September 2004. Over the past few weeks, much of the firm’s work was done in the middle of the night. At one point, Jenner & Block attorneys, working on the case pro bono, churned out two 20-page appellate briefs and a Supreme Court brief in just over 24 hours. For Perrelli, who held several high-level Justice Department posts in the Clinton administration, the Schiavo case was never about life and death, but was always about the proper role of government in the personal choices of individuals. He says the final 11th Circuit decision was a vindication of the Constitution’s separation of powers. “What we saw happening was the executive branch and the legislative branch trying to encroach on the courts. And the courts stood tall,” Perrelli says. “I think it was a tremendously important thing for judges to stand up and apply the law and protect the right of people to make choices without government interference.” Jonathan Ringel is a reporter for the Fulton County Daily Report , the ALM newspaper in Atlanta where portions of this article first appeared. Vanessa Blum is a senior reporter for Legal Times.

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