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Conservative judge blasts Bush, Congress for role in Schiavo case
Knight Ridder ^ | 3/30/05 | Stephen Henderson

Posted on 03/30/2005 5:22:03 PM PST by 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."


TOPICS: Constitution/Conservatism; Culture/Society; Front Page News; Government; News/Current Events; Philosophy
KEYWORDS: 11thcircuit; aclj; judge; judgebirch; schiavo; stanleybirch
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To: Crackingham

I don't understand..I thought the Federal and State courts were suppose to uphold the Right to Live as a Constitutional right....except under due process of law....any judge who thinks Michael Schiavo meets the criteria of someone who should have the right to decide her fate after he essentially abandoned her for 10 years must have been smoking something...What gives judges the right to refuse to uphold the Constitution...BTW, what gives this jackass the right to uphold Alambama's "right" to ban sex toys?...starvation good, sex toys bad...POSH!


121 posted on 03/30/2005 7:13:10 PM PST by NATIVEDAUGHTER
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To: danmar
Am, I alone thinking like this????

No, you're not alone.

122 posted on 03/30/2005 7:18:15 PM PST by ContraryMary (WPPFF Member)
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To: finnman69

Don't any of you State Rights conservatives understand about the Constitutional RIGHT to live? Jack Kennedy sent in the National guard to protect the right of a black man to go to a State college in Mississipi....a "right" far less important and NO WHERE mentioned in the Constitution as explicitly as the Right to Life, Liberty and the pursuit of happiness...The Judicial system of this country needs to start enforcing the Preamble....if they don't send in the freakin' marrines....I also didn't see any of you "Constitutional " conservatives critisizing George Bush for an Unconstitutional war either.....


123 posted on 03/30/2005 7:18:51 PM PST by NATIVEDAUGHTER
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To: truth_seeker
Just because you don't agree with the results, doesn't prove "due process" was not followed.

Judge Greer illegally took the dual role of trial court judge and surrogate decision maker for Terri Schiavo. This is explicitly forbidden by statute. The appellate court held that the considered such action by Greer as harmless, since they didn't see what a separate surrogate decision maker would have done differently, but it is not supposed to be the role of appellate courts to guess such things.

Terri's case was decided in a manner contrary to statute, ergo she did not receive due process of law.

124 posted on 03/30/2005 7:18:52 PM PST by supercat ("Though her life has been sold for corrupt men's gold, she refuses to give up the ghost.")
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To: NATIVEDAUGHTER
I also didn't see any of you "Constitutional " conservatives critisizing George Bush for an Unconstitutional war either.....

No comment required, it said all we need to know about you.

125 posted on 03/30/2005 7:21:59 PM PST by finnman69 (cum puella incedit minore medio corpore sub quo manifestus globus, inflammare animos)
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To: DevSix

=== and due process

This much should give folks pause if Greer's court and handling of the case constitutes the standard of "due process" by which a state court not only can deprive a person of life but -- further -- order that no water be administered during the starvation process and no pictures be taken to support the assertions of family and friends that Terri has been alert and responsive during the the past two weeks and has not dutifully slipped off like some beautiful and euphoric Sleeping Beauty as reported by Felos.

I'm having trouble pulling up the opinions. Only the denial of a rehearing comes up.

I'd really like to read the dissent of the ONE Republican who felt compelled to "send a message" that he opposed this, the longest execution (of an innocent human being) in this nation's history.


126 posted on 03/30/2005 7:22:12 PM PST by Askel5 († Cooperatio voluntaria ad suicidium est legi morali contraria. †)
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To: eddie willers; jwalsh07; Cornpone; PhiKapMom; All
Thank you all for keeping me sane, by acknowledging my belief!

It means a lot to me that I am not castigated as a "fruitcake", "freak", you name it!
Huh...I am relieved!

127 posted on 03/30/2005 7:23:09 PM PST by danmar ("No person is so grand or wise or perfect as to be the master of another person." Karl Hess)
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To: RWR8189

We are a nation of arrogant judges who refuse to enforce the Constition and the Preamble...it doesn't matter if they are "conservative " or not...if they don't ...get them the ***** out of there!


128 posted on 03/30/2005 7:23:11 PM PST by NATIVEDAUGHTER
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To: Crackingham
Translation: How dare you other two branches dictate to us how we should decide matters.

As soon as the federal court rubber stamped Greer's ruling after Congress ordered a de novo hearing, I knew this had become about the power of the court, and not justice or the law.

129 posted on 03/30/2005 7:23:54 PM PST by frgoff
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To: Crackingham

One of my coworkers suggested that Congress should establish a traffic court somewhere in Middle of Nowhere, Alaska, and put the country's highest-paid traffic-court judges there.


130 posted on 03/30/2005 7:24:19 PM PST by supercat ("Though her life has been sold for corrupt men's gold, she refuses to give up the ghost.")
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To: EternalVigilance

...My ten-year old can understand this.

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

Because like a child who is not punished when they don't follow directions, they continue to disobey.


131 posted on 03/30/2005 7:24:38 PM PST by planekT (If she's been dead for 15 years, why do we have to kill her?)
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To: jwalsh07

=== the DOI and the founding principles of this country as embodied in the Fifth and Fourteenth Amendments.


The founding principles of this nation are found in its Declaration of Independence.

The Constitution -- a housekeeping document and framework for goverment -- was intended for interpretation always in light of those principles and "inalienable" rights enumerated in the Declaration.


132 posted on 03/30/2005 7:26:20 PM PST by Askel5 († Cooperatio voluntaria ad suicidium est legi morali contraria. †)
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To: sinkspur

There doesn't have to be...there ought to be enough compelling evidence one way or another applied to the case from both sides of a contested case where each side has a standing..M. Schiavo should have none(considering what he's done)...case closed...Sinkspur, you never cease to amaze me...Why you don't become a Dimmycrat, I'll never know...


133 posted on 03/30/2005 7:28:55 PM PST by NATIVEDAUGHTER
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To: Askel5
This much should give folks pause if Greer's court and handling of the case constitutes the standard of "due process" by which a state court not only can deprive a person of life but -- further -- order that no water be administered during the starvation process and no pictures be taken to support the assertions of family and friends that Terri has been alert and responsive during the the past two weeks and has not dutifully slipped off like some beautiful and euphoric Sleeping Beauty as reported by Felos

Again, I feel like the tube should be in (that we should error on the side of life) - BUT, why your suggestion of due process not being fulfilled (from above) doesn't hold water....is that the State Court found in its decision that "Terri would not have wanted to be kept alive" - So, this is fulfilling her desires - (Agree with this judgment of what Terri would have wanted or not.....which I don't ....but that is why due process was followed within the law on this case - The State court is simply fulfilling what they saw as Terri's wish if left in this condition).

134 posted on 03/30/2005 7:28:57 PM PST by SevenMinusOne
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To: Crackingham

It's not a problem of liberal/conservative for many; it's judicial arrogance and the belief that they are the "supreme law of the land."


135 posted on 03/30/2005 7:33:57 PM PST by streetpreacher (The fires of hell burn hot and try to destroy me, I run to your will Oh God I know you’ll restore me)
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To: Crackingham

First, Scalia and Thomas may both be conservatives but they are in two different schools of thought.

Second, I think this decrying by this judge is not about Constitutional conservatism but about having the judiciary's unchallenged perch called into question. I believe it's gotten to the point where the system of checks and balances envisioned by the founding fathers and laid out in the Constitution is not the system we have today.

The last time I checked conservatives believed in morality and in doing the right thing. A smell test would immediately reveal that something is not quite right about the outcome of the Schiavo case.


136 posted on 03/30/2005 7:33:58 PM PST by Norman Bates (Pray for Terri)
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To: danmar

=== I can not believe this blatant hypocrisy in the ranks of my Party!

The true hypocrisy comes where the courts in this instance are merely enforcing legislation which Jeb Bush signed in Florida ... very similar to the Futile Care Law which George Bush signed in Texas (giving sole discretion to the spouse, even, where exercise of the "right" to starve a family member to death -- legal in ALL 50 states -- is concerned).


But the more interesting hypocrisy is that of "strict constitutionalist" who appear to be playing the same damned shell game they played in 1970.

IT IS NEVER THE PURVIEW OF THE FED to enforce such laws, they said. FAR BE IT FROM THE FEDERAL GOVERNMENT to interfere with the states' individual purview over abortion, in particular, they cried. As they made the case for state-by-state abortion laws amounting to "economic discrimination" against the poor who could not afford travel to a state providing "healthcare" services.

They had to be careful with abortion just as they are being careful with euthanasia ... sending pro-abort Laura Bush (of the "secret smile" re: stem cells) out on the evening national news to argue that "LIFE" questions ought to be Federal questions.

Don't kid yourself ... overarching all the hypocrisy here is the notion that any of the GOP leadership are "pro-life" or are interested in anything but making certain Americans push for legalized lethal injections and sign their Living Wills.



137 posted on 03/30/2005 7:34:25 PM PST by Askel5 († Cooperatio voluntaria ad suicidium est legi morali contraria. †)
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To: planekT

Indeed.

You get an A+.


138 posted on 03/30/2005 7:34:39 PM PST by EternalVigilance ("I thirst.")
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To: swilhelm73

=== There is a reason that the Constitution was not designed to empower judges as legislators for life as they now are...


Are you serious?

How did Federal judges end up judges for life? I've always thought it strange they were.


139 posted on 03/30/2005 7:35:14 PM PST by Askel5 († Cooperatio voluntaria ad suicidium est legi morali contraria. †)
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To: 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.

Polls consistantly show MOST American agree with Judge Birch on this.

I can understand why Bush's poll numbers have hit a new low.

140 posted on 03/30/2005 7:37:08 PM PST by Jorge
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