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."
Truly tragic every way I look at this matter.
You're aware that the Legislative branch can just deal the Judicial branch out of the game by denying them jurisdiction, aren't you?
It will take a lot of convincing before I abandon the opinion that this was gamed from the beginning. The Schindler's were out-lawyered, they didn't rebut medical testimony (according to Greer) and they didn't have the resources to bring in credible witnesses to present alternative views. I'm not sure what Greer's responsibility was in terms of ordering that all available tests be administered
Yes. I've been fortunate to develop an intimate understanding of how appellate courts work. Far too many people do not, nor will they ever.
Congress is presumed by rule of law to have acted in a Constitutional manner. The fact that Greer didn't explain his credibility rulings is absolutely a legitimate reason to act as they did.
What are the odds that everything in Terri's guardianship records is kosher? If anything were found to be not kosher, I'd think that'd put Greer in a bit of trouble, wouldn't it?
Yes, I think he would be in a bit of trouble.
LOL!
=== More to the point, the power to "rubberstamp the will of the people", otherwise known as the power of the legislature, is not granted to the SC in the Constitution.
But they CAN decide Presidential elections?
If Congress had the fortitude, they'd dismantle a court that was unwilling to do the job that Congress established and enacted them to do. They seem to lack understanding of their position. The Congress cannot tell them how to rule but they can certainly tell them what is/is not their jurisdiction.
No, but I'm so frustrated that I dare not say any more lest I make a fool of myself.
If you have the time, catch up on this thread.
=== The point of the Left's wholesale adoption of judicial legislation is to advance elements of their agenda they could not get via the legislature. Consider, for a moment, that American abortion law is considerably more "liberal" then most of Europe.
We should probably stay off abortion as an example since it's actually the right's agenda. Only the Republicans have put in writing that legal abortion is "vital" to our national defense at home and abroad.
If either your or jwalsh could just explain to me how the Supreme Court is supposed to be bound by the Constitution where the States are not, that would help.
I just get the impression that -- for whatever reason -- some believe states have the right to curtail or limit the "inalienable" even as they dream up additional rights. The Supreme Court steps in, depending on who's the most powerful politically (hint hint), and picks and chooses which State actions it will morph into federal law.
Once upon a time I talked to the Texas legislative director for NRLC for a couple hours and we touched on a man's right to save the life of his unborn child. "Bring us a case ... we need a case" he says.
Imagine how stupid I felt to learn that a man named Loce had brought such a case years prior in New Jersey. Mother Teresa and Dr. Lejeune, even, had filed amicus curiae briefs. But the Supremes just refused to hear it. Refused.
I don't much see the point of a Supreme Court which cherry picks its cases and concentrates primarily on dreaming up new rights and curtailing the old ... as test-driven in the various states.
I also don't understand the point of a Judiciary that doesn't "change with the times" per the "will of the people" if, indeed, we are now a Democracy.
Understanding the Federal Courts: The Appeals Process.A litigant who files an appeal, known as an "appellant," must show that the trial court or administrative agency made a legal error that affected the decision in the case. The court of appeals makes its decision based on the record of the case established by the trial court or agency. It does not receive additional evidence or hear witnesses. The court of appeals also may review the factual findings of the trial court or agency, but typically may only overturn a decision on factual grounds if the findings were "clearly erroneous."
Appeals are decided by panels of three judges working together. The appellant presents legal arguments to the panel, in writing, in a document called a "brief." In the brief, the appellant tries to persuade the judges that the trial court made an error, and that its decision should be reversed. On the other hand, the party defending against the appeal, known as the "appellee," tries in its brief to show why the trial court decision was correct, or why any error made by the trial court was not significant enough to affect the outcome of the case.
Although some cases are decided on the basis of written briefs alone, many cases are selected for an "oral argument" before the court. Oral argument in the court of appeals is a structured discussion between the appellate lawyers and the panel of judges focusing on the legal principles in dispute. Each side is given a short time - usually about 15 minutes - to present arguments to the court.
The court of appeals decision usually will be the final word in the case, unless it sends the case back to the trial court for additional proceedings, or the parties ask the U.S. Supreme Court to review the case. In some cases the decision may be reviewed en banc, that is, by a larger group of judges (usually all) of the court of appeals for the circuit.
A litigant who loses in a federal court of appeals, or in the highest court of a state, may file a petition for a "writ of certiorari," which is a document asking the Supreme Court to review the case. The Supreme Court, however, does not have to grant review. The Court typically will agree to hear a case only when it involves an unusually important legal principle, or when two or more federal appellate courts have interpreted a law differently. There are also a small number of special circumstances in which the Supreme Court is required by law to hear an appeal. When the Supreme Court hears a case, the parties are required to file written briefs and the Court may hear oral argument.
Wrong! Where in Article I (the one dealing with Congress, y'know?) does it say anything about judicial power? Answer: it doesn't!
Plaintiffs have an opportunity to litigate any deprivation of Theresa Schiavo's federal rights.If Schindler's lawyers based their claims on due process violations by Greer, isn't Whittemore's "suggestion" that they "have an opportunity to litigate any deprivation of Theresa Schiavo's federal rights[due process] a weird redundancy?
Knowing full well that the U.S.Congress wanted a de novo review of the underlying evidential material in Terri's case, Whittemore ruled as narrowly as he possibly could to toss it back into the void.
Whittemore could easily have enjoined the hospice to re-insert the tube pending a clarification of the issue--and then waiting while the"idiot attorneys" got some heavyweight help to create an ironclad document.
Let's not kid ourselves. The Federal Court system has been and will continue protecting its turf over the dying body of Terri Schiavo.
Unless you want to go to France, judges aren't responsible for producing facts on their own initiative. It is the responsibility of the parties to discover and present the facts.
I honestly don't know what Greer's rulings state, but if Congress doesn't believe that a state court judge has not adequately explained his rulings in a matter involving the Constitution's right to life, they absolutely have the power to act by mandating a trial de novo in federal court. They so ordered, and the federal judiciary has thumbed its nose.
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