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."
Indeed this is a key point in understanding why Judge Birch's opinion reveals how the judicial process can end up violating an individual's Constitutional right to due process and killing a totally innocent person like Terri Sciavo without benefit of a trial.
Birch himself has stated that "I would describe my 'judicial philosophy' as one centered on common sense and stare decisis (and when the two diverge, stare decisis with criticism)."
Now stare decisis is a principal of law that essentially makes Judges almost on par with God Almighty in rendering decisions. Once a judge like Greer makes a ruling in his Pinellas County probate court, his ruling--no matter how illogical, biased or flat-out wrong--Greer's ruling becomes instantly and deeply engraved in stone--very much like the tablets brought down from the mountain by Moses.
All subsequent jurists' investigations a case like Terri's death verdict assume without question that every single one of the multitude of judgements and rulings made by Greer are absolutely valid, correct and have now entered into a region of truth just short of Divine Law. This is stare decisis in action
No wonder Greer has a bevy of other judges letting his decision to kill Terri go unchallenged--Greer's procedures look OK. Greer's actual judgements that lie draped by those procedures like a sheet-covered cadaver in a morgue cannot be examined--or can be examined only in a de novo review.
Congress passed a law requiring a de novo review of Terri's case, but the arrogant legal club in Florida and in the Federal Judiciary gave the royal finger to the U.S.Congress.
Judge Birch likes to rest his ample butt comforably on stare decisis and, by so doing, he risks the life of many American citizens--especially those in the euthansia-haunted hallways of the Florida probate system.
For shame, Judge Birch. Ponder the conclusion of someone who has taken a careful critical look at the dangers of relying too easily on the principal of stare decisis:
"To treat precedents as superior to constitutional enactments is to introduce contradictions into the law, and in any system of logical propositions, acceptance of a single contradiction accepts all contradictions, rendering every proposition logically undecidable. Contrary to the view of some judges, the law must be logical, or it is not law.
"Stare decisis is the way judges seek the safety of the herd. We need to demand they exhibit more courage, and return to fundamental principles, resorting to stare decisis only when the positions lie on the fuzzy boundary of the region of legitimacy.
This is interesting now. Is Laura Bush really pro-abortion? I'd be interested in seeing a source, but I also understand that a position like that might be blacked-out. Who is the one GOP First Lady of the last five?
There once was a nation so great
In its glory the hour is late
Starving girls in their bed
With armed guards til they're dead
The robed tyrants now rule the whole State
The "conservative" Judge apparently missed Article III of the Constitution when he went to law school.
That is what I finding interesting. The 11th circuit was established in the 1980s. The only court mentioned in the Constitution is the SCOTUS, and is presumably the only court with true Constitutional standing. Perhaps this calls for Congress to write some new rules and change some old ones as these courts are created under their power.
"In this instance the Congress took it upon themselves to attempt to over rule a Judicial decision they shouldnt have."
Wrong!
Congress has the power of judicial review/checks and balances. It's just a pity they've haven't done more reviews to keep the Supreme Court in check.
| 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.
|
This stare decisis sounds like an unconstitutional amount of power in the hands of one person. Is this the norm? Any case with life or death needs to have a jury in my opinion.
post 158
I swear it has to be those Black Robes, maybe its the dye in them? Maybe when they put them on they forget they are human like everyone else. I have never disrespected these folks so much in my life as I do now.
My sleeves are rolled up...now what to do next.
But you are correct.
When an innocent person like Terri is starved and dehydrated to death by a county probate judge, then--by God--a jury or some jury-like group of fellow humans must be involved before a probate court is allowed to snuff out an individual's existence here on this earth.
=== Wow, I don't normally see such purposeful twisting of some someone else's words this side of the MSM.
Oh for Pete's sake. I realized too late I'd misunderstood what you said but my fascination STILL is with the "judge for life" bit.
It's a little lame to pretend that they're actually legislating from the bench when -- as in this case -- they're simply lifting a corner of Justice's blindfold such that their decisions are perfectly in keeping with whatever spanking new 'rights' legislators have passed or Executives have Ordered.
| Congress passed a law requiring a de novo review of Terri's case, but the arrogant legal club in Florida and in the Federal Judiciary gave the royal finger to the U.S.Congress.
Get it? It's not that the judge is ignoring Congress' intent, it's that the Schindlers' idiot attorneys based all their claims on due process violations by Greer. The Schindlers' lawyers — not the judge — dragged the state court case into what had been their opportunity for a de novo hearing on whether Terri Schiavo's rights were being violated. The judge can't adjudicate claims that the Plaintiff doesn't bring. The Schindlers' attorneys screwed this up six ways from Sunday by treating their opportunity before the federal courts as an appeal, rather than as a new case. Whittemore is even telegraphing what to do to fix this: Plaintiffs have an opportunity to litigate any deprivation of Theresa Schiavo's federal rights.Instead of taking the hint, the Schindlers' attorneys took this same failed plea through two rounds of appeal, wasting valuable time while Terri was starving. When they finally came back with some "federal" claims not based on anything Greer had done, they were lame ones based on the Americans with Disabilities Act, etc. I am upset that none of these judges stopped to think that a woman was dying because her parents' lawyers were idiots, but it is not true to say they ignored Congress' intent. Plaintiff's lawyers ignored Congress' intent, and the opportunity that had been given them to save Terri Schiavo's life. There is massive bungling by the attorneys here, and a woman is going to die because of it. |
According to Birch, Congress passing a law that a federal court review Terri's matter de novo upon request from her parents is an unconstitutional exercise of power.
Thanks for pointing out how foolish his opinion is.
the threat that will "destroy the Constitution."
What rock has he been under the Constitution is LONGGGGGG GONNEEEEE!!!!!
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Thank you for writing that, so I didn't have to. That point has been on my to-do list. 