| ...are *not* examples of judicial legislation? If not, what is?
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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."
(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
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.
Do yourself a favor and search the DOI, the Fifth Amendment and the 14th Amendment for the words life and liberty and you will, perhaps, understand what I wrote.
Don't than me amigo, I think you're one of the dolts. :-}
They could have filed a two page complaint that incorporated by reference and attachment prior factual allegations and then simply pled a right to life cause of action under the Constitution. I don't think any federal district court judge would have the cajones to let her death by feeding tube removal continue even if they only filed that sort of rudimentary filing.
They just didn't get it that the extraordinary efforts of Congress made everything Greer did wholly irrelevant.
Another sad event in this epic tragedy.
| ...are *not* examples of judicial legislation? If not, what is?
|
That's one view, another is that the courts simply were not interested in the facts but only the process and by God, process was going to win the day.
Hope you enjoyed your hiatus.
Perhaps that is why Birch went with the phony unconstitutional exercise of power angle this time.
Criminals who have been imprisoned routinely get a better deal in federal courts than Terri's parents did.
It's another sad subplot in this epic tragedy.
| They could have filed a two page complaint that incorporated by reference and attachment prior factual allegations and then simply pled a right to life cause of action under the Constitution.
|
I'm afraid you are right my friend ... I mourn the demise the country I loved
On my last thought, I think a grassroots effort at examing pro se prisoner filings using the federal court's PACER system would go very far in demonstrating federal court errors. Compare what the federal judges did with rudimentary filings prisoners had years to dream up with those the Schindlers' attorneys had to file immediately, and you'll find enormous hypocrisy.
I ceased even commenting on brain scans, always of course with the qualifying note that I was just chatting without any expertise worth much of anything, after you weighed in. You carried the day on that one. It was a knockout. Somehow I suspect none of this got before Greer. It was a cluster F.
=== So, creating rights to abortion, sodomy, and protection from the death penalty if one's crime was committed before age 18 are *not* examples of judicial legislation? If not, what is?
Why don't you see it as "rubberstamping" the "will of the people" as expressed by the majority rule or extant legislation of individual states?
I mean ... if the President's right and we're a "democracy" ... why wouldn't our justices end up "legislating" in that they are forced always to meld heretofore objective standards to accomodate whatever artificial reality has become the norm?
I figure that's one reason we don't hear a lot of bitching and moaning about the "right" to birth control which precipitated the "right" of abortion and, by divesting sex from procreation, afforded homosexuals absolutely equivalency as either sexual partners or potential parents with the same "right" as heterosexuals to enjoy sex sans children OR adopt or manufacture children at will.
It seems reasonable enough to me that if we do not draft children into the armed services simply because they are capable of killing people, we yet maintain some conceit of childhood innocence regardless the savages we're turning out these days.
As for the other "legislating from the bench," I don't think that a nation which countenances some wholly artificial rights -- such as the "right" to contraception or for-profit porn as Free Speech -- is really in a position to balk at others so closely related to the "will of the people" where their most personal affairs are concerned.
I agree with you for the most part ... I just don't see the standing to oppose some judicial legislating but not all of it. As a Catholic only too well aware how seriously dangerous and damaging homosexuals who carry on consensual relations with other adults can be, I don't much care for the way Thomas dissents on Constitutional grounds even as he "sends the message" that laws against sodomy are silly or that communities are not within their rights to take the self-defense measures they find necessary to protect themselves and their own.
Can you explain for me the standard to which you would hold the Justices where neither the Declaration nor the Constitution appear to recognize the personhood of either the unborn or the "vegetables" as they like to call them.
If the 13th Amendment is any indication, it would appear our founding documents have been historically silent on the question of non-persons who, lacking citizenship or the ability to claim their rights or property, cannot speak for themselves in the same way they manage to recognize the rights of those who would profit or defend themselves from same.
As you said, this is an epic tragedy.
The former US Supreme Court clerk on Abrams' show just pointed out that Greer never explained why he deemed one medical opinion more credible than the other, thereby insulating himself upon appellate review. That has got to be one of the biggest reasons why Congress enacted a law mandating trial de novo.
Unconstitutional exercise of power my arse.
One thing few people understand is that the appeals court system is predicated upon the honesty of trial court judges. It is very easy for a dishonest trial court judge to render "findings of fact" which are immune to appeallate review even though they bear no relation whatsoever to reality.
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Really want an answer? Sexual harrassment. Google this phrase by Catherine MacKinnon: "What the decision means is that we made this law up from the beginning, and now we've won." That's exactly what happened. She made it up. And the Supreme Court upheld her. Poof! Instant law, where there had been none before.