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."

[Destro]

I just signed up!

[aBootes]

I must say that I just don't want to hear anything from a judge at the moment. Not a dang thing.

[rdcorso]

After reading the damning information on The Empire Journal there should be a grand jury convened to investigate this case.They have documented an enormous amount of evidence against the people involved in the Schiavo case.People should put aside their disagreement about whether she should live or die when there is evidence of corruption and fraud in the system.If the people deciding the fate of people like Terri are corrupt and on the take it puts our entire judicial system in danger along with the lives of the vulnerable.

[Natural Law]

We don't need to be lectured by a judge who has forgotten that he derives his judicial powers from the consent of the governed.

[MileHi]

Anyone have a link to the decision and descent?

[traderrob6]

Precisely

[ironman]

"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."

I've been going back over what would have worked. In what you suggested, did Michael ever actually claim she was PVS. The doctors did. He's not violating her Right-to-Life because she PVS. Would something like this have worked:

"Theresa Marie Schiavo is being denied her Right-to-Life buy a private citizen, Michael Shiavo, by denying her food and water. Earlier today (plaintiff Bobby Schindler) physically prevented me from providing her water."

Straight up new case. Michael Shiavo is not a State actor. I think this squares better with the Terri's Law, which said something about "irrespective of previous state rulings." So it could not have simply been blown off by him claiming he was just following orders.

I would have also tried something about denying her right to pursuit of happyness.

[Borges]

This guy is no RINO! I was looking over his history and he is as conservative as they come.

[Emily RN]

Ok, whatever it takes! ;)

[Free_at_last_-2001]

SPINELESS PARK, Fla. (AP) - Jeb Bush has assumed a fetal position and is resting comfortably. Family members report that he has never been more beautiful. - Very good - I think you could also replace the words "Jeb Bush" with "The Republican Party" and it would work also!

[Free_at_last_-2001]

Just kill the poor woman! It's all perfectly legal and very conservative, too! That would seem to be the case!

[the invisib1e hand]

In Honor of Terri Schiavo.

Please let load -- it's 11 mb.

Have headphones or sound on.