Conservative judge blasts Bush, Congress for role in Schiavo case

Knight Ridder ^ | 3/30/05 | Stephen Henderson

[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."

[stands2reason]

Welcome to FR.

[.45MAN]

I am in full agreement with you.............

[Nick Danger]

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?

I don't think so. I read that as Whittemore trying to wave them off from this approach of trying to find procedural errors in the trial court record. That record, after all, had already been appealed several times to no effect. Greer is a careful guy. He apparently made no procedural errors.

What Whittemore is asking for is something like, "Theresa Marie Schiavo is being denied food and water by her husband, who claims that she is in a persistent vegetative state. There is substantial doubt about this diagnosis, as attested to in the enclosed 33 affidavits from medical professionals. Please re-insert the feeding tube while we litigate this."

[verity]

A mindset is a terrible thing to waste.

[Emmett McCarthy]

I appreciate your understanding my pessimism in light of the current situation. If you were to look back through the thread, I had a number of posts from someone who didn't like it and thought they could get at me with what they probably thought was "clever repartee". It was actually a series of moronic non-sequitors.

[Condor51]

***Only phonies use stupid words like "parameters". They think it makes 'em sound smart.***

Au contraire.
gotcha on the 'phonies' :-)

I use "parameters" every time I find an 'oversight' (boo-boo, blunder, mistake, error) on a construction project (aka a 'Building') and have to call the Mech Engineer to ask what his design "parameters" are so I can then fix his 'oversight' - without his 'boss', the Architect (aka 'god almighty') finding out.

[muawiyah]

You can't just dismantle a court. You have to remove the judges who were on that court from any possible involvement with any future judicial system, or even with the practice of law.

Disgraceful and disgraced judges must be turned penniless into the streets to fend for themselves out of the leavings in dumpsters.

That's the only way to get them to "understand" ~ that is, gain their attention first!

[ContraryMary]

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.

That's called judicial activism.

[Edit35]

But but but it's ok to break the law this time according to those who want to send in the 101st Airborne to get Terri.

Was it OK for Eisenhower to send in the National Guard when Arkansas refused to let black children into public schools?

Was it OK for Kennedy to send national troops when (Alabama?) was simply following a judge's decision to not allow blacks into university??

For those who agree with this execution of Terri Shaivo because "they correctly followed procedure", I submit that those same people have forever forfeited their right to question or change any decision by the judiciary, whether state, local or federal.

After all, as long as the judge "followed the law" then it's impossible for them to have made an illegal decision -- RIGHT??.

[Edit35]

I am as conservative as they come, and I agree with the judge. The president and congress has no business getting involved in individual cases.

Was it OK when Eisenhower sent in the National Guard when Arkansas refused to let black children into white public schools (as per state law)?

Was it OK for Kennedy to send national troops when (Alabama?) simply followed a judge's decision to keep blacks out of certain universities??

For those who agree with this execution of Terri Shaivo because "they correctly followed procedure", I submit that those same people (conservative or not) have forever forfeited their right to question or change any decision by the judiciary, whether state, local or federal.

After all, as long as a state judge "follows procedure" then it's impossible for them to have made an illegal decision -- RIGHT??.

[MeekOneGOP]

This guy posts articles and RARELY replies.

http://www.freerepublic.com/focus/user-posts?id=197280

There is his "In Forum" comments. Articles, articles, articles.

[PistolPaknMama]

One thing few people understand is that the appeals court system is predicated upon the honesty of trial court judges

Exactly, and why Congress ordered a new review of the facts, only the courts failed again.

[Dolphy]

It is the responsibility of the parties to discover and present the facts.

Right but there were interesting points made in the Schindler's appeals. If Greer was acting as both health care surrogate and trial judge, I wondered if he might have, if not the responsibility, at least the opportunity to order these tests.

[Destro]

due process of law was carried out. over 20 times. you just don't like the results.

[Destro]

Please keep in mind that the courts are enforcing legislation the Bush brothers signed for their respective states as governor. Indeed they've been busy.

Amen!!!! Passed by Republican legislatures to boot.

[Destro]

I dare you to tell FReepers when government last followed the Constitutional limitations of their office/authority, or for that matter acted in accordance with their oath of office?

So the Constitution is dead and you are saying good riddence - it died long ago so now anything goes? What the hell just happened to the Conservatives?

[justshutupandtakeit]

These clowns don't care about the Constitution or good sense. It's Terri uber alles for them. Throw every principle to the winds for political expediency. Accept every lie as long as it supports their ideology.

[Destro]

Preach, brother! Preach!!

[Destro]

YOU ARE NOT ALONE. These Conservatives are CINOs - Conservatives In Name Only.

[Destro]

The Conservative agenda has been hijacked.