Conservative judge blasts Bush, Congress for role in Schiavo case

Knight Ridder ^ | 3/30/05 | Stephen Henderson

[Crackingham]

The latest rejection of the Terri Schiavo case by a federal court was accompanied by a stinging rebuke of Congress and President Bush from a seemingly unlikely source: Judge Stanley F. Birch Jr., one of the most conservative jurists on the federal bench.

Birch authored opinions upholding Alabama's right to ban the sale of sex toys and Florida's ability to prohibit adoptions by gay couples. Both rulings drew the ire of liberal activists and the elation of traditional and social conservatives.

Yet, in Wednesday's 11th Circuit Court of Appeals decision to deny a rehearing to Schiavo's parents, Birch went out of his way to castigate Bush and congressional Republicans for acting "in a manner demonstrably at odds with our Founding Fathers' blueprint for governance of a free people - our Constitution."

Birch said he couldn't countenance Congress' attempt to "rob" federal courts of the discretion they're given in the Constitution. Noting that it had become popular among "some members of society, including some members of Congress," to denounce "activist judges," or those who substitute their personal opinions for constitutional imperatives, Birch said lawmakers embarked on their own form of unconstitutional activism.

"This is a judge who, through a political or policy lens, falls pretty squarely in the Scalia/Thomas camp," said law professor and constitutional expert David Garrow, referring to the two most conservative Supreme Court justices. "I think it's a sad commentary that there wasn't a voice like his present in the Congress, because he's saying what a Republican constitutional conservative should be saying."

Jay Sekulow, the chief legal counsel for the conservative American Center for Law and Justice, said Birch got it wrong, while two other judges - including one appointed by Bill Clinton - were right to say they'd accept the Schiavo case.

"I think this whole case is redefining ideological positions," said Sekulow, whose organization has been consulting with lawyers for Schiavo's parents. "I would think an originalist view of the Constitution would come out differently than what Birch says." Originalists try to adhere to the precise language and intent of the Constitution.

White House spokeswoman Dana Perino declined to address Birch's decision directly, saying the president is "saddened by this extraordinary case and continues to support all those who stand up to defend life."

Birch's criticisms highlight the legal conundrum that surrounds the Schiavo case and point to the difficulty it continues to present for some Republicans. Congressional leaders may have believed that they were playing to the party's socially conservative wing by taking extraordinary steps to have the federal government intervene. But traditional conservatives have decried their abandonment of the party's adherence to limited government, states' rights and separation of powers.

Additionally, in order for Schiavo's parents to win in federal court, judges would have to embrace a doctrine of constitutional due process that conservatives have decried. Such "substantive" due process, which Justice Antonin Scalia sharply criticized in a recent speech as part of the threat that will "destroy the Constitution."

[jwalsh07]

Am, I alone thinking like this????

No, there are plenty of dolts who are unfamiliar with Article 3, the DOI and the founding principles of this country as embodied in the Fifth and Fourteenth Amendments.

[planekT]

...Birch said he couldn't countenance Congress' attempt to "rob" federal courts of the discretion they're given in the Constitution. Noting that it had become popular among "some members of society, including some members of Congress," to denounce "activist judges," or those who substitute their personal opinions for constitutional imperatives, Birch said lawmakers embarked on their own form of unconstitutional activism...

So there it is in a nutshell. He doesn't care that Congress has the power to make the law, or that it has jurisdiction over his court, or that it has to power to create a court or remove a court, the only exception being the Supreme Court.

So, does anyone else here think this judge had a bone to pick with Congress, and would allow a disabled woman to be starved to death rather then obey the law as was set forth by that Congress?

His only discretion is whether or not that law passed by Congress was constitutional, not whether he liked it.

His action speaks for itself, as does our Congress when they don't enforce their own Subpoena's.

[jwalsh07]

Judge Bork made it quite clear that what Congress did was emninently constitutional and with precedent. But Judge Bork is familiar with Article 3.

[muawiyah]

Judge Bork was wrong. Private bills are enacted into law all the time ~ thousands of them!

This is the only one I've ever seen that ended up in dispute.

If you want to know about "private bills" ask your Congressman.

[sandbar]

>>>You are right on target. Due process has obviously been followed, as the numerous reviews up and down the state and federal judiciaries clearly show.>>>

You are niave if you feel that this case has actually been give 'review'. How can a judge 'review' a 8 year old court case and make a decision in a matter of a couple of hours?

If this is due process, God help us all.

[Hattie]

Guess somebody must have pushed this judge's button. They are beginning to find out we now have an internet. For years they have been able to overstep their bounds, make law and eluded the scrutiny of the ordinary folk out here. Lights hurt their eyes as well as their egos. I always heard due process was just plain fairness and MS got none from them.

[sandbar]

>>> Said this case is not unique and the judges needed to rule on the law not emotions. >>>

Too bad they didn't in this case. They ignored a law they didn't like, that is overstepping their bounds.

[eddie willers]

Am, I alone thinking like this????

Not at all.

[wiley]

Not according to Thomas Jefferson, but then his interpretation of the Constitution is not the one the courts favor. They claim Marshall's as definitive. I prefer Jefferson's. According to his perspective the legislature and executive branches have every right to curtail, even ignore judicial rulings and should when the courts overstep their boundaries.

[atomicpossum]

I'd like Judge Birch's opinion on Judge Greer's order to criminalize Terri's oral feeding. And Judge Greer's use of law enforcement to bar the Florida executive branch from enforcing the law they're charged with.

And, lord almighty, where does a two-bit probate judge get to sit like Caesar, issuing thumbs-up or thumbs-down, with unreviewable decisions on life and death?

The Legislative and Executive Branches get regular reinforcement of their power by the will of the people-- the Judiciary seems to keep forward momentum on pomposity alone.

[Binghamton_native]

I think what must of us are asking is that justice (judges) be able to apply wisdom to a case (see I Kings 2:10-12, 3:3-14) for an example of judicial wisom as applied by King Solomon.

[mrsmith]

The dissent from Birch tore him apart IMO.

The response to his Rooker citation was devastating: "Rooker did not establish a constitutional (or even prudential) bar to federal review of final state court decisions; instead, it recognized a statutory [IE: written by congress] bar to such review."

As Nick noted above, at least he's saying what the other judges were too 'demure' to say out loud: they won't follow the law and give a de novo hearing- they just 'go through the motions'.

I don't think Terri would have won her federal case, but she should have had the chance this law gave her to try.

[microgood]

Just MHO but: No judge should not be allowed to terminate an innocent life. That should be decided by a jury.

Judges have tunnel vision and often no common sense. Everything is about the law and humanity is not a factor.

Doctors and scientists have the same problem, tunnel vision. All medical conditions are looked at from a secular point of view. And since very little is known about the human brain and doctors and scientists always say they know more than they do, their arrogance skews their testimony. They also lack common sense.

A jury, on the other hand, can rule on both the law and the facts and therein the common sense or humanity of the situation is addressed, something the judge and doctor is either unwilling or unable to do. (Juries play a similar role as legislators in that they consist of humanity and make the final ruling on issues).

Had this case been put in front of a jury to decide whether to pull the plug, at least one juror would have seen through MS and put a stop to this.

In other words, no judge should be allowed to make this type of decision. It is too important to be left to the judiciary.

[EternalVigilance]

The fundamental law of the United States:

U.S. Constitution

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.


The fundamental law of the State of Florida, which Jeb Bush swore to uphold, and refuses to use his Executive power to enforce against an out-of-control judiciary:

SECTION 2. Basic rights.--All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property; except that the ownership, inheritance, disposition and possession of real property by aliens ineligible for citizenship may be regulated or prohibited by law. No person shall be deprived of any right because of race, religion, national origin, or physical disability.



My ten-year old can understand this.

Why can't those on the bench do so??

[pulaskibush]

Here's the section of the Constitution that everybody's talking about.

Article. III.

Section. 1.

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Section. 2.

Clause 1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State; (See Note 10)--between Citizens of different States, --between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Clause 2: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Clause 3: The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

http://www.house.gov/Constitution/Constitution.html

[PhilipFreneau]

>>Yet, in Wednesday's 11th Circuit Court of Appeals decision to deny a rehearing to Schiavo's parents, Birch went out of his way to castigate Bush and congressional Republicans for acting "in a manner demonstrably at odds with our Founding Fathers' blueprint for governance of a free people - our Constitution."

He might be 'conservative", but he is stupid as dirt. The Founding Fathers never envisioned a mere judge overruling a constitutionally-sound law of the state legislature - a law, in this situation, that empowers the law enforcement branch of the state to take protective custody of anyone being abused or in imminent danger of being harmed. The arrogant judge Greer totally ignored this state law -- even threatened the state law enforcement branch (e.g., the Governor) with comtempt if an attempt was made to enforce the law. The equally arrogant, and completely brain-dead, Stanley F. Birch, Junior, need to get his head out of his butt. Meanwhile, Jeb Bush needs to get a set of cahones and arrest Judge Greer for abuse of the disabled.

[atomicpossum]

If you want the federal courts to review every single one of these end-of-life situations, we're gonna have to have A LOT more judges.

It would help if the state courts would actually review cases where a life is at stake instead of taking any decision a lower court makes as gospel and reviewing only the bureaucratic procedural typing of the briefs. If the state is going to grant a license to kill a non-dying individual (roughly, to provide immunity from prosecution for murder, even by neglect), then it is obligated to evaluate the logic, reasoning and evidence used by the State in the case before the considerable and irreversable procedure is undertaken.

And certainly have more responsibility of review in cases with as many questionable details (such as "really, Judge, I SWEAR she wanted to be killed, really, no foolin'") as this one has.

[Luke Skyfreeper]

Is "Contempt of Court" still a crime when the courts have convincingly demonstrated that they are worthy of nothing except contempt?

[SevenMinusOne]

the fact that 5 of the 6 11th Circuit justices appointed by Republicans gave Terri a thumbs down

If I'm not mistaken....these justices ruled on the appeal....Appeals deal with procedure and due process....(not with retrying the facts of a case) - Therefore these justices found no role for the federal court to over rule a State court decision where both sides were provided equal procedures and due process to bring their case (it just so happens that those on Terri's side presented a terrible case).

[A CA Guy]

The King has no clothes!