Jon’s point would be well taken if the “judicial mischief” had not already occurred in–and been absolutely critical to the outcome of–this case. But in declining to reinsert the tube, the two-judge majority of the Eleventh Circuit panel expressly relied not on the statutory language of the law passed Sunday night but on the legislative history: to wit, Senator Levin’s argument–well prior to passage, and before the bill underwent important language changes–that the bill did not require the federal court to grant a stay (which would have reinserted the tube) so that the de novo review congress was seeking could occur. See Op. at 5-7 (citing and quoting “[t]his enlightening exchange” between Senators Levin and Frist). See also id., at 15-16, dissent of Judge Wilson (“Because the language of the statute is clear, the majority’s reliance on legislative history is unwarranted and incorrect.”)

I have great respect for the views of Jon and Orin Kerr. But it doesn’t make a lot of sense to me to wax on about the abstract mischief of bank robbery while failing to acknowledge that the vault is long since open and the loot is gone. It’s a perfectly understandable position to say the actual language of the statute is far more important than, say, the comments by Rep. DeLay that Hugh Hewitt cites, which evince a clear intent that the statute would obligate the judge to reinsert the tube so the case could be considered. (“We are confident this compromise will restore nutrition and hydration to Mrs. Schiavo as long as that appeal endures. Obviously, the judge will have to put the feeding tube back in or she could die before the case is heard.“) (Emphasis added.) But then why not concede that legislative history–which is so mischievous precisely because it can be used to torture the meaning of the actual words of a statute–is in fact exactly what the Eleventh Circuit used to deny the stay against the clear intent of the actual language of Terri’s law.