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."
All right then, so what is the point of an appeal if the finding of every state court re: facts is sacrosanct?
These Bozos are starting to remind me of the Mullahs in Iran.
There were a lot of demorats that voted to.
Judges have egos and some even have super egos. Judge Birch may espouse conservative principles, but he's afraid of getting his feet stepped on by Congress and the President and that is what this is all about, IMHO.
Congress was right to intervene in the attempted slow murder of Ms. Schiavo, but the problem is most people don't have a clue as to the real story here.
For example, M. Schiavo only claiming his wife made her statement about not wanting to live with a severe injury of this type seven years after her disability occurred; the sheer cruelty of starving someone to death and how dehydration causes system failure organ by organ; and M. Schiavo's refusal to get his wife the best care possible over the years.
I'm not sure that a finding that she "would not have wanted to be kept alive" automatically warrants the conclusion that a judge should order her death. I admit that I don't know all the details about how this case initially arose, but I do wonder how this judge managed to place himself in a position that he felt required that he order her death. Does anyone, including Michael Schiavo, have the power to disregard the order?
And, I'm not sure that there is any basis for anyone to make a finding that this patient expressed a desire to die by starvation. Even if a court somehow finds itself required to order a patient's death, are there no Consitutional standards that might relate to the manner of death selected?
You're not insane, or a "fruitcake", etc.. You appear to be a thoughtful, sincere and concerned individual. Sadly, however, you're just simply wrong, on both the law and the morality of this issue.
I do agree with you that the bad manners, lack of courtesy and vituperation which has dominated so much of the discussion on this board is inexcusable.
Have you all seen this incredible tape of Terri opening her eyes for the dr. - he keeps saying "open you eyes{ - so she finally arches her eyebrows high and her eyes wide as if to say: "Hey, how about THIS!"
It will make you laugh and then cry - SHE IS THERE - she needs therapy...THIS IS A MUST - must get it our everyone. I've sent it to all the FOX addresses, Rush, Hannity ets - but they have to get slammed with this to pay attention, so it doesn't get lost.
http://web.Tampabay.rr.com/ccb/videos/Terri_Big_Eyes.rm
=== All right then, so what is the point of an appeal if the finding of every state court re: facts is sacrosanct?
I'm really rather interested in this answer.
Because it would appear to me that the only point of an appeal is to get facts overturned on a technicality.
Is that off-base of me?
Another member of the Josef MENGELE Branch of Government speaks out!
I will not debate the merits of those of us who differ both in our views of the law and morality on this issue. But, I will sincerely thank you for being one to allow civil differences of opinion...a tolerance that has been severely lacking here this past two weeks.
Interestingly enough, our DA here in New Orleans has just been smacked with a 1.6 million dollar judgment for discrimination -- jury was unanimous -- on account of his firing 43 white employees upon taking office and replacing them with campaign workers.
He's going to appeal. Appeal what?
Wouldn't it seem odd if counse for a District Attorney hadn't "handled his business" throughout the trial? Or does someone like that leave a minefield of due process missteps in order to open an appeal?
Said from the court that was established by Congress in 1981.
It's funny he would mention our founding fathers.
Can you imagine what the founding fathers would think of the government ordered murder of a helpless handicapped woman.
Unbelievable.
Whose laws?
The U.S. Supreme Court has been adopting foreign laws to set precedences and change our Constitution.
The precedence they've set in the Terri Schiavo case sends a message that, if you're disabled you're at the mercy of the court. And, God help you if you don't have a living will.
BINGO.
www.gopusa.com
What Congress giveth, Congress can taketh away
By Kay R. Daly
March 24, 2005
The biggest misconception about the federal judiciary is that it is an all-powerful entity unto itself that can only be reined in by placing strict constructionists or constitutionalists onto the bench and hoping for the best. The truth of the matter is that it is the United States Congress as designated by Article III of the U.S. Constitution that created the lower courts of the federal judiciary.
This seems to be lost not only on the American people, but several members of Congress.
The critical line in Article III, Section 1, states: “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 key word is “may.” It does not say that Congress “must” or “shall” create these federal courts.
In other words, it is the Congress that may or may not create the lower courts of the federal judiciary . They pay for the buildings, confirm the judges, and pay their salaries. In addition, without a statute from Congress granting jurisdiction, the federal court quite simply has no jurisdiction whatsoever. Congress is in the driver’s seat and can expand or limit the scope of their jurisdiction as they see fit. Specifically, in Section 2 of Article III, judicial powers are enumerated in detail.
At the heart of the battle over the Terri Schiavo case is the epic struggle between the legislative and the judicial branches of government. The biggest myth of all in this battle is that Congress overstepped its bounds by allowing federal jurisdiction in the Schiavo case. It was certainly an extraordinary step to take, but it only seems extraordinary because the myth of the untouchable judiciary has not been debunked.
As a matter of law, Congress could convene today and abolish the entire federal judiciary, with the exception of the Supreme Court. It could also create a federal court to hear nothing but Terri Schiavo cases within the bounds of federal legal jurisdiction as enumerated in Article III, Section 2. The Congress has already created specific federal courts on tax law, national security and even maritime issues, so it has been done before.
In the past couple of years, we have seen examples of judicial tyranny in landmark cases about the Pledge of Allegiance, the Ten Commandments, and gay marriage, to name but a few. Judicial activism and judicial tyranny has expanded exponentially only because “we the people” and our elected Congressional representatives have allowed it to happen.
Congressman Robert Aderholt (R-AL) and Senator Richard Shelby (R-AL) have introduced bills, S-520 in the Senate and HR 1070 in the House entitled the “Constitution Restoration Act of 2005” that would limit the power of the federal judiciary specifically in religious liberty cases. These bills were also introduced in 2004, but languished in committee and were reintroduced at the beginning of this current congressional session.
This is not a new idea. In fact, in the 1980s, Senator Jesse Helms and Congressman Henry Hyde introduced bills repeatedly that would limit the federal courts jurisdiction over the specific issue of abortion. And it is not only the “hot button” social issues that bring into focus the power of the federal judiciary. Capping damages in class action cases also limits the federal courts overly broad discretion.
The main point here is that what Congress giveth, Congress can also taketh away. And quite frankly, it should. The grassroots efforts to confirm federal judges who will apply the Constitution as it is written should also include a strong push to limit judicial tyranny by demanding that our elected representatives, sworn to uphold the Constitution, to become cosponsors and move these bills to final passage.
In fact to fulfill the oath to uphold and defend the Constitution, our elected representatives have an absolute obligation to reign in our out-of-control activist judiciary. In the last fifty years, it has been activist judges who have single handedly done more damage to our Constitution than the liberal media, pop culture and leftist politicians combined.
Terri Schiavo’s greatest final gift to us might just be the spotlight that she has put on our system of justice. With all the legal and moral arguments swirling around her tragic story, there is enough speculation and misinformation to feed the punditocracy and legal scholars for years to come.
For those of us in the grassroots, troubled by Terri Schiavo’s impending demise and the courts’ complicity in it, roll up your sleeves. The fight has only begun.
"due process of law" these days pertains to criminals. The ACLU will insure that no criminal's rights are ever abused, but they wouldn't lift a finger to help a defenseless woman.
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