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."
=== Give it a rest you gutless one - Jeb and GWB have done all they can (under the law and the constitution!)
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.
Marbury v. Madison is now the Constituion?
Funny how it never occurs to the author of this piece that liberals, in an effort to see Terri die, are embracing a doctrine against substantive due process that they usually embrace on issues like gay marriage, sodomy, gay adoption, abortion, affirmative action, and so forth. Heck, liberals just used it to save the life of a 17-year-old murderer. They are going to have plenty of splainin' to do themselves the next time they whip out the due process argument.
Conservatives never denied the right to due process. They just deny that it applies to the entire liberal legislative agenda.
The right to life started out as an inalienable right. What happened?
| This judge is 100% correct in this instance
You'll notice there is not a word in this article about the dissenting opinions filed with this concurring opinion. If you haven't already, read the dissent (I posted it above) and see if you still agree with Birch. |
Here come the judge. Here comes the judge.
Putting aside this torturous and barbaric government ordered murder by starvation, 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?
Disgraceful comments from this judge. I only wish that
Mr. Sekulow and the White House had made stronger comments in reaction. We cannot help what the RINOs do. They are who they are. We may be able to stiffen the spines of our supposed friends.
I'm just overwhelmed by that display of intelligence. Do you write this stuff yourself?
I understand that (but it is still the law and how our Country operates) - Also it should be noted that the more I have learned about this case over the past six weeks or so....the more I find Michael Schiavo to be in the complete wrong (for a number of reasons...as well as his actions).
But nonetheless those trying to run Jeb or GWB down over this are simply small-minded, small-ego'd people who like to puff their chests up while not having to deal with any of the real responsibilities, laws, etc - (people like that make me want to puke).
Where the Culture of Death is concerned -- particularly now that their culling of the unborn has been so successful we have a "cereal and milk" situation fast approaching if we don't off some of the "Living" -- it pays to remember EXACTLY what powers Congress assumed for itself in direct contravention of the "inalienable rights" on which our Founding Fathers claimed this nation's right to independence in the first place. To wit:
The Task Force believes that much more knowledge is needed by the public in general about fertility control, contraception techniques and sex determination, as well as the social and material consequences resulting from increased population, in order that the broadest number of options are available to everyone in making personal decisions that affect the use of natural resources, family size and ultimately our environment.
There must exist a greater sensitivity to these problems which cannot be provided by the federal government. The government can provide leadership and direction but should never be put into a position of having to enact controls on population as a result of public ignorance and indifference.
Amazing, isn't it? All it takes is "public ignorance and indifference" to problems to force the poor government into enacting whatever controls it deems "moral".
Death tolls have been reduced in every country to negligible rates from epidemics and diseases such as malaria, measles, smallpox, cholera, polio and tuberculosis; major advances have been made against heart disease and cancer, artificial organs can now prolong life.Since we accept these intrusions into nature's control of population as morally justified, are we not unwise to consider birth control with equal moral justificiation?
If we continue to support government activities to reduce disease and improve health in order to prolong life under the auspices of what is good for society, then should we not consider birth control as a government activity for similar reasons?
In the Task Force report on "Federal Government Family Planning Program" it was recommended that Congress increase appropriations for contraceptive research in the amount of $380,000,000.00 over the next five years.
If think that the GOP and the men they confirmed to head up the American Academy of Sciences and other critical agences were speaking SOLELY to the prevention, abortion, and artification reproduction of new Living, think again.
Those who accepted this "moral" depopulation, prevention and culling of the unborn best now be prepared to Depopulate themselves.
As a result of reduced death rates, there are more people in their non-productive years than ever before. More children and more elderly people unable to participate in the world's work force increase the burden on the productive age group. [...] The National Academy of Sciences has said:
Either the birth rate must go back down or
the death rate must go back up.
Recommendations of the Task Force on Earth Resources and Population
I am only attempting to remain within the parameters of your comprehension.
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.
There is no law.
But....but.....but we must have more republicans elected to get conservative judges that will vote how we see things. Oh wait, they seem to want to interpret the law instead of how we believe it should be done.
Only phonies use stupid words like "parameters". They think it makes 'em sound smart.
Impeach, convict, and remove judicial tyrants of all political persuasions. They simply want to rule over us without a pesky election.
But nonetheless those trying to run Jeb or GWB down over this are simply small-minded, small-ego'd people who like to puff their chests up while not having to deal with any of the real responsibilities, laws, etc - (people like that make me want to puke).
To the contrary.
They are educated people who've done their homework and understand only too well that actions speak louder than words.
Additionally, they are folks who have some semblance of logic left such that the words of our First Lady broadcast on the national news this evening: "It MUST be a federal question, it's a LIFE issue." make US puke in that our First Lady -- like all but one Republican First Ladies since Nixon -- is not only Pro-Choice but in favor of Human Farming for stem cell research as sanctioned at the Federal Level, albeit in a limited fashion along the lines of Condi's being "mildly pro-choice", by her husband during his first televised address to the nation.
If that is her idea of a "LIFE" issue that needs Federal input ... well, I think all thinking men and women ought to be able to see the writing on the wall.
Assuming, of course, that the fact Jeb and George W. Bush signed the state legislation currently being enforce, the fact that 5 of the 6 11th Circuit justices appointed by Republicans gave Terri a thumbs down and the fact that George H. Bush was the primary mover in Congress of the most comprehensive and expensive population control program the world has ever known have not already made an impression on folks.
Maybe the judiciary needs to be reminded of what USED to be common knowledge.
Men are endowed by their Creator with certain unalienable rights,-'life, liberty, and the pursuit of happiness;' and to 'secure,' not grant or create, these rights, governments are instituted.
BUDD v. PEOPLE OF STATE OF NEW YORK, 143 U.S. 517 (1892)
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Do you say that because you have studied the matter at some length, or because you got sucked in by the media's favorite trick of quoting the hell out of any conservative who happens to be on their side at the moment?