Conservative judge blasts Bush, Congress for role in Schiavo case

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."

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.

Give it a rest you gutless one - Jeb and GWB have done all they can (under the law and the constitution!) - They have handled this situation with leadership, compassion and class! - In fact they have done more for Terri than her OWN family has (with that despicable case they put forward early on in this whole mess).

What have you done big talker! - Go at least get arrested before you spout off with such drivel - Takes a big man (person) to call others spineless from the safety of a keyboard. You need to grow a sack!

This article is not complete without the dissent by Tjoflat and Wilson:

Judge Birch now argues that this court lacks jurisdiction to entertain this case due to constitutional infirmities in the legislation enabling federal review of this case. In particular, he identifies four provisions of the act that “constitute legislative dictation of how a federal court should exercise its judicial functions.” Ante, at 9. I believe that it is fully within Congress’s power to dictate standards of review and to waive in specific cases nonconstitutional abstention doctrines. Indeed, if Congress cannot do so, the fate of hundreds of federal statutes would be called into serious question. I wish to dispel any questions about our jurisdiction in this case.

Under Article III, Congress has the power both to establish federal courts and, except as to the original jurisdiction of the Supreme Court, to make exceptions and regulations as to their jurisdiction. U.S. Const. art. III. The Supreme Court has recognized, at least in some contexts, that Congress also has the power to require federal courts to entertain causes of action they would not otherwise have entertained for prudential reasons. Cf. Raines v. Byrd, 521 U.S. 811, 820 n.3 (1997) (“It is settled that Congress cannot erase Article III’s standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing. . . . We acknowledge, though, that Congress’ decision to grant a particular plaintiff the right to challenge an Act’s constitutionality . . . eliminates any prudential standing limitations and significantly lessens the risk of unwanted conflict with the Legislative Branch when that plaintiff brings suit.” (citation omitted)).

This is not a case, to use separation-of-powers parlance, of Congress “arrogating” power to itself, nor is it a case in which one branch of government has “impair[ed] another in the performance of its constitutional duties.” Loving v. United States, 517 U.S. 748, 757 (1996) (emphasis added). Instead, Congress has prescribed a particular approach to a particular problem in the general domain of federal jurisdiction, without presuming to dictate—in any respect—our performance of a court’s essential function: “to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) (Marshall, C.J.). It is in this domain that the Supreme Court has jealously guarded our power against intrusion by Congress. See, e.g., Dickerson v. United States, 530 U.S. 428, 432 (2000) (“We hold that Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress, and we decline to overrule Miranda ourselves. We therefore hold that Miranda and its progeny in this Court govern the admissibility of statements made during custodial interrogation in both state and federal courts.”).

Here, Congress has attempted only what has long been established to be within its power to dictate: our standard of review, the effect of a prior state court judgment on that review, the application of prudential abstention doctrines, and the effect of exhaustion requirements. I know of no case barring Congress from 8 so dictating, and Judge Birch does not cite any. Indeed, quite to the contrary, Judge Birch cites cases establishing that both our abstention and exhaustion doctrines are prudential. See ante, at 10. If none of these dictates by itself goes beyond Congress’s power to determine the jurisdiction of federal courts, I know of no doctrine that could convert their aggregation into a separation-of-powers violation.

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Guess its time for all judges to take a literary test. Oh I forgot, Judge Greer is blind just like the justice he dispenses!"

It doesn't say the state can't deprive any person of life, just without due process of law.

Many would conclude that due process was followed. Courts appointed doctors, and many courts and judges have withheld the original court's position.

Just because you don't agree with the results, doesn't prove "due process" was not followed.

Breaking the law wasn't a problem with Judge Birch. He was more concerned with Congress taking action to legislate a change to the appelate jurisdiction of a federal court. Along the way he seems to have forgotten that the Founding Fathers actually did give Congress that power!

What you have here is less than you imagine. Many jurists, in an attempt to be able to maintain impartiality, and to focus on the "facts" as they might be presented in court, give up reading newspapers, magazines, or watching TV news. This Birch guy and his gumbahs elsewhere probably have no idea what is going on in the public arena where ideas are debated and names called.

Judge Greer is pretty much cut of the same cloth and the fact that the Sheriff thought he needed some personal protection might well have surprised him.

It would be interesting to interview Birch, Greer and these other characters to see just what they know about what the rest of us think of them.

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