The Judiciary Fights Back

RUSH: This judge, Stanley F. Birch, Jr. of the 11th US Circuit Court of Appeals, wrote the opinion yesterday that shut down all other appeals on the Schiavo case, and this opinion is arrogant beyond belief. (AP) "With time running out for Terri Schiavo, a federal appeals court Wednesday rejected her parents' latest attempt to get the brain-damaged woman's feeding tube reconnected. The Atlanta-based 11th U.S. Circuit Court of Appeals agreed to consider an emergency bid by Bob and Mary Schindler for a new hearing in their case, raising a flicker of hope for the parents after a series of setbacks in the case. But the court rejected the bid 15 hours later--" Fifteen hours later. Fifteen hours. Now that, to me, is telling.

Here is just a little bit of what Judge Birch wrote: "Any further action by our court or the district court would be improper. While the members of her family and the members of Congress have acted in a way that is both fervent and sincere, the time has come for dispassionate discharge of duty." What can that mean? It can only mean one thing: The passionate discharge of duty is, "Shut up; stand down. The woman is going to die." Then Judge Birch "went on to scold President Bush and Congress for their attempts to intervene in the judicial process, by saying: 'In resolving the Schiavo controversy, it is my judgment that, despite sincere and altruistic motivation, the legislative and executive branches of our government have acted in a manner demonstrably at odds with our Founding Fathers' blueprint for the governance of a free people our Constitution.'"

Folks, it's 180-degrees out of phase. It is the exact opposite that is true: "The legislative and executive branches of our government did not act in a matter demonstrably at odds with our Founding Fathers' blueprint for the governance of a free people, our Constitution. In fact, appeals court judges Gerald Tjoflat and Charles Wilson, the same two judges who also issued dissenting opinions last week when the full 11th Circuit considered the case for the first time, said that the harried pace of appeals made it impossible to determine if state courts properly considered the evidence. The two dissenters said yesterday, "It is fully within Congress' powers to dictate standards of review for federal courts. Indeed, if Congress cannot do so, the fate of hundreds of federal statutes would be called into question. Once Congress passes a law, it can never revisit it. The courts have final say. The Congress, which has jurisdiction over the courts in Article 3 of the Constitution cannot get involved in legislation or in judicial matters such as jurisdiction," which is all they were trying to involve themselves in in this case. To slap down the president and the Congress for their attempts to intervene in the judicial process? This was not an opinion, folks, on the merits of this case. This is a judge, and probably representing a whole bunch of judges, which are getting very sensitive to the charge that they are activists, very upset at the notion that they are activists, and that their authority is being challenged and so he took the occasion of the opinion he wrote in this case to chide everybody for criticizing judges and basically telling anybody who's criticizing judges that they're wrong, and if Congress and the president wants to get involved in judicial areas, that Congress is clearly allowed to get involved in, that they are somehow unconstitutional.

You realize that while Judge Birch was writing this screed against the other branches of government he allowed hours to elapse when he could have been reviewing the facts of the case. Fifteen hours, ladies and gentlemen. Fifteen hours this court waited from the time they granted the appeal till they released this opinion, and in those 15 hours rather than reviewing the facts of the case -- which is what the two dissenting judges said didn't really happen -- this judge is writing this screed against the president, against Congress and against everybody else who has a little disagreement with what judges in this country are doing. He allowed hours to elapse. It just shows you how completely arrogant and out of touch these people are even to the end. I mean, he was more concerned about taking cheap shots with the rights of this poor woman he could have helped. He was more concerned about that than her rights, than her life, than the concerns of her father and the concerns of her mother. There are also other interesting passages in this opinion, which I want to get to. He talks about judicial activism and other such things. In fact, here it is. Let me just read the whole thing. "Another popular epithet directed by some members of society include," and this is where he lashes out at the American public. This is from the opinion. I can't recall an opinion that was so adamantly in response to the public rather than on the merits of the case.

"A popular epithet directed by some members of society including some members of Congress toward the judiciary, involves the denunciation of activist judges. Generally, the definition of an activist judge is one who decides the outcome of a controversy before him according to personal conviction even one sincerely held as opposed to the dictates of the law as constrained by legal precedent and ultimately our Constitution. In resolving the Schiavo controversy, it is my judgment that despite sincere and altruistic motivation, the legislative and executive branches of our government have acted in a manner demonstrably at odds with our Founding Fathers blueprint for the governance of a free people, our Constitution. Since I have sworn as have they to uphold and defend that covenant I must respectfully concur in the denial of the request for rehearing en banc. I conclude that this is unconstitutional, and therefore this court and this district court are without jurisdiction in this case under that special act and should refuse to exercise any jurisdiction that we may otherwise have in this case." So basically he says we don't have jurisdiction even though Congress passed a law granting them jurisdiction in this case. Congress granted them... That's what the whole thing was about two Sunday nights ago, was granting the federal system jurisdiction. It didn't tell them they had to, didn't tell they had to conduct a review but said, "We're going to let this case move up the federal chain. We're going to have the federal chain involved and if the federal courts want to they can have," and they requested a de novo look at the case, from the beginning, brand-new.

Congress can give the federal courts jurisdiction in cases. They did in that legislation, and this judge simply rejects this law passed by Congress, claiming that it is in violation of the Constitution. Now, it is scary if this judge is unaware of Article 3 and unaware of the federal courts' relationship to the United States Congress and the duly elected representatives of the people, because by acing out Congress and by telling Congress it has no constitutional right to do what they did, telling the president the same thing, what Judge Birch is essentially saying is that We the People have no constitutional right. We the People have no constitutional right to question them. We the People have no constitutional right to ask them to review a case. Instead, he's going to say we don't have jurisdiction and nobody can say we have jurisdiction. "We don't want jurisdiction in this case. Plus I resent being called an activist judge. I'm not an activist judge the activists here are Congress and the president and you people and the public. You're the ones who are activist, I am not. I am enforcing the law." He didn't (interruption). Exactly right, Mr. Snerdley. In legalese action we were just flipped off. We were just flipped off by the 11th Circuit Court of Appeals.

Now, everybody is talking about -- and this is another good point. Everybody is talking about, "Well, a lot on the left are saying, 'Hey, you know, I don't know why you conservatives so upset. This is the most conservative district court of appeal in the country and the Supreme Court's the most conservative court that we've ever had. What are you all upset about?'" This doesn't have anything to do with politics. This has to do with totally judicial power and arrogance. We come back from the break, your phone calls are coming up. I found a piece. A friend of mine sent me a piece written by a Duke University law school student who has a different theory about why judicial activism is taking place and it dovetails with some of what we've been discussing today. But I want to share it with you because it's right on the money. I know a lot of people, you know, you talk about various aspects of the case today, but I continue to want to focus on the courts because the courts are the ones that made this happen. I mean you can say that George Felos is involved and Michael Schiavo and all that, true, but when you boil it down it's the courts that caused this woman to die or let this woman die, however you want to look at it. The US and state courts are the ones who made this day possible.

Something I noticed about the opinion is that sure, we have checks and balances, but what good are they if the Judiciary is not subject to the checks placed upon it? "Three distinct" branches is one thing, but they ALL have power over the OTHERS. If the Judiciary can ignore the Executive and Legislative, where are the checks and balances?

"I continue to want to focus on the courts because the courts are the ones that made this happen. I mean you can say that George Felos is involved and Michael Schiavo and all that, true, but when you boil it down it's the courts that caused this woman to die or let this woman die, however you want to look at it. The US and state courts are the ones who made this day possible."

Obviously, in any case that goes to court, the court could be said to be responsible for all that happens. But Michael Schiavo was the one who wanted his wife's feeding tube removed. Had he not fought for that and refused to consider her parents and their wishes and belief of what Terri would want, there wouldn't have been a court case to begin with. The focus on the judiciary, as important a dialogue as it is, can blur the direct line of responsibility if we let it. And to say that the courts are the whole reason this happened or to gloss over Michael Schiavo and "boil it down" to being all the courts' fault loses that fact.

Every federal court in this nation, except the SCOTUS, was created by Congress, which means they can be 'uncreated' by repeal of those statutes. And the SCOTUS can simply be unfunded-no staff, no building, no word processors, no paychecks. It's time they were reminded of this simple fact.

There are three separate battles going on here:
• Michael Schiavo's personal agenda, whatever that is;
• The deatheaters' assault on our system;
• The legal system's efforts to remain uncheck and unbalance, running or ruining our country, depending on your point of view, by fiat.

Rush is dealing with this last part, elements of the legal system, judges in particular, see this as a challenge to the current superiority of the legal leg of the country’s governmental tripod, the Executive, the Legistative and the Legal. Notice, no mention of Justice.

Our Declaration of Independence and Constitution guaranty freedom to enjoy LIFE, Liberty and the Pursuit of Happiness.

Judges have a vested interest in being infallible. One can question the Judge’s procedures, he can be found to make procedural errors, but one cannot question his judgment. The President and Congress, as well as the Governor, have questioned his judgment. That is not allowed and will not be allowed by the court system. It really isn’t relevant that an innocent lady will be tortured to death. You must understand, if we are allowed to question the Judge’s judgment, all heck will break loose. The Judge must be infallible.

There are neither checks or balances. Article 3 of the Constitution gives very little power to the Judiciary. All the power they accumulated over the years has either been given to them by the other two branches or taken by the courts themselves.

What was given can be taken and what was taken should be nullified.

Mr. Limbaugh is truly providing excellence in broadcasting.

The imperial judiciary is peeved that the executive or the legislative branches might somehow assert some of their rightful powers -- indeed the justices were exercised enough by such lese majeste that the 11th ignored the plain words of our Constitution.

The American Judiciary, is certainly not clear and unbiased. Many of us on Terri's side, already had guessed that the judges involved in the outcome of Terri's case, would go against her. Because, they want to "show" President Bush...

Judges have a vested interest in being infallible. One can question the Judge’s procedures, he can be found to make procedural errors, but one cannot question his judgment. The President and Congress, as well as the Governor, have questioned his judgment. That is not allowed and will not be allowed by the court system. It really isn’t relevant that an innocent lady will be tortured to death. You must understand, if we are allowed to question the Judge’s judgment, all heck will break loose. The Judge must be infallible.

You have hit the nail precisely on the head. ALL of the judges involved in killing Terri Schiavo were more intent upon seeing that nobody questioned their infallibity than seeing justice done. These people really, really make me worry about our future. They also confirm that unchecked power ALWAYS corrupts. It's just human nature.

I'll be honest. I hope they rot in hell.

This judge, Stanley F. Birch, Jr. of the 11th US Circuit Court of Appeals, wrote the opinion yesterday that shut down all other appeals on the Schiavo case...

Here's the thought that's been on my mind regarding separation of powers:

If we play word games like the Left does, then when did the power of the courts morph from issuing OPINIONS to issuing RULINGS or ORDERS?

If the Executive has the power of ACTING (executing), then the Judiciary issuing RULINGS is usurping the power to act reserved to the Executive.

There can be only one ruler in a Republic, and that is the elected executive. The Legislature makes law, the Executive enforces law, and the Judiciary offers OPINIONS on law, not decrees, orders, or rulings. The Executive should be free to accept or reject the OPINIONS of the Judiciary.

-PJ

I think that people who could have averted the wrenching melodrama of the last week failed to have the wisdom to see how hard it would be to watch. Among others, that includes the lawmakers of Florida and, curiously, the people of Pinellas county that relected judge Greer in November. All of the state judges in Florida are elected, and he was reelected, even though this had been played out locally and in the state for years. It is really hard to believe that these people would be so locked into their positions that they would allow this controversy to be televised round the world.

The most distressing aspect of Judge Birch's opinion is his view that the legislative and executive branches somehow acted unconstitutionally in intervening in the Schiavo case. This action may or may not have been constitutional but it was in fact enacted into law and until the constitutionality of that law has been challenged and adjudicated it is incumbent upon a federal judge to FOLLOW the law, not prejudge it in a current case. Shame on Judge Birch. Shame on the 11th Circuit. Maybe some remedial education re: the functioning of government is in order.

"Since I have sworn as have they to uphold and defend that covenant I must respectfully concur in the denial of the request for rehearing en banc. I conclude that this is unconstitutional, and therefore this court and this district court are without jurisdiction in this case under that special act and should refuse to exercise any jurisdiction that we may otherwise have in this case." So basically he says we don't have jurisdiction even though Congress passed a law granting them jurisdiction in this case. Congress granted them... That's what the whole thing was about two Sunday nights ago, was granting the federal system jurisdiction."

The arrogance of this postmodern nihilist staggers the brain.

The Constitution, you see, BELONGS TO HIM.

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