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."
Assuming it's not out of context, I'd impeach his ass for this one statement.
Go to hell, Birch.
There are none so blind as those who will not see.
Please explain the meaning of section one and five of the 14th amendment then.
Maybe we should consult Hitlery and Booba how to break the law and get away with it? (sarcasm)
>>>Birch said he couldn't countenance Congress' attempt to "rob" federal courts of the discretion they're given in the Constitution.>>>
In other words: HOW DARE YOU QUESTION OUR AUTHORITY!!!
Precisely my point of view.
It is amazing to watch our so called limited Government, follow the Constitution, lower taxes, "get out of my bedroom" conservatives making fools of themselves by demanding Federal and State Government intervention in an affair who should have been left to the State of Florida to decide.
When the Democrats (Janet Reno comes to mind) are usurping the law/Constitution we were all up in arms demanding the rule of Law to be observed.
Now that we are in charge, everything is just a OK to do just that, usurping the Law/Constitution because we do not like it!
I can not believe this blatant hypocrisy in the ranks of my Party!
Am, I alone thinking like this????
Bump for truth
I read the ruling -- conservative ruling on the law and the judge sounded disgusted IMO. I thought it was very well written and once again citing case law to back up what he was saying.
I don't want activists judges -- I want judges that rule on the law -- isn't that a novel thought? But then I thought that was a conservative agenda until recently.
No you are not alone -- count me in!
>>>In this instance the Congress took it upon themselves to attempt to over rule a Judicial decision they shouldnt have.>>>
Yes, because judges are ALWAYS right.
Nope...and as soon as the feeding frenzy here is over I think you will find more people who understand our point of view...
"There are none so blind as those who will not see"....things like me.
>>> Along the way he seems to have forgotten that the Founding Fathers actually did give Congress that power!>>>
Pretty much for the reasons involved in this Teri Schiavo case alone!
Well that makes at least two of you who are "conservatives" and sh5t from shinola challenged.
The only question remaining is do you also suffer from the same malady as judges, that being megalomania?
You are right on target. Due process has obviously been followed, as the numerous reviews up and down the state and federal judiciaries clearly show.
Judge Bork said the other day that the Courts would never be able to keep up with looking at individual cases one after the other -- way too many of them. Said this case is not unique and the judges needed to rule on the law not emotions. Wish some people on here could have heard him but then they would have had to open their ears so they could hear.
Why not?
Since we're tossing conservatives overboard for the likes of Jesse Jackson and Lanny Davis, anything goes.
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