The Judiciary Fights Back

RUSH: This judge, Stanley F. Birch, Jr. of the 11th US Circuit Court of Appeals, wrote the opinion yesterday that shut down all other appeals on the Schiavo case, and this opinion is arrogant beyond belief. (AP) "With time running out for Terri Schiavo, a federal appeals court Wednesday rejected her parents' latest attempt to get the brain-damaged woman's feeding tube reconnected. The Atlanta-based 11th U.S. Circuit Court of Appeals agreed to consider an emergency bid by Bob and Mary Schindler for a new hearing in their case, raising a flicker of hope for the parents after a series of setbacks in the case. But the court rejected the bid 15 hours later--" Fifteen hours later. Fifteen hours. Now that, to me, is telling.

Here is just a little bit of what Judge Birch wrote: "Any further action by our court or the district court would be improper. While the members of her family and the members of Congress have acted in a way that is both fervent and sincere, the time has come for dispassionate discharge of duty." What can that mean? It can only mean one thing: The passionate discharge of duty is, "Shut up; stand down. The woman is going to die." Then Judge Birch "went on to scold President Bush and Congress for their attempts to intervene in the judicial process, by saying: 'In resolving the Schiavo controversy, it is my judgment that, despite sincere and altruistic motivation, the legislative and executive branches of our government have acted in a manner demonstrably at odds with our Founding Fathers' blueprint for the governance of a free people our Constitution.'"

Folks, it's 180-degrees out of phase. It is the exact opposite that is true: "The legislative and executive branches of our government did not act in a matter demonstrably at odds with our Founding Fathers' blueprint for the governance of a free people, our Constitution. In fact, appeals court judges Gerald Tjoflat and Charles Wilson, the same two judges who also issued dissenting opinions last week when the full 11th Circuit considered the case for the first time, said that the harried pace of appeals made it impossible to determine if state courts properly considered the evidence. The two dissenters said yesterday, "It is fully within Congress' powers to dictate standards of review for federal courts. Indeed, if Congress cannot do so, the fate of hundreds of federal statutes would be called into question. Once Congress passes a law, it can never revisit it. The courts have final say. The Congress, which has jurisdiction over the courts in Article 3 of the Constitution cannot get involved in legislation or in judicial matters such as jurisdiction," which is all they were trying to involve themselves in in this case. To slap down the president and the Congress for their attempts to intervene in the judicial process? This was not an opinion, folks, on the merits of this case. This is a judge, and probably representing a whole bunch of judges, which are getting very sensitive to the charge that they are activists, very upset at the notion that they are activists, and that their authority is being challenged and so he took the occasion of the opinion he wrote in this case to chide everybody for criticizing judges and basically telling anybody who's criticizing judges that they're wrong, and if Congress and the president wants to get involved in judicial areas, that Congress is clearly allowed to get involved in, that they are somehow unconstitutional.

You realize that while Judge Birch was writing this screed against the other branches of government he allowed hours to elapse when he could have been reviewing the facts of the case. Fifteen hours, ladies and gentlemen. Fifteen hours this court waited from the time they granted the appeal till they released this opinion, and in those 15 hours rather than reviewing the facts of the case -- which is what the two dissenting judges said didn't really happen -- this judge is writing this screed against the president, against Congress and against everybody else who has a little disagreement with what judges in this country are doing. He allowed hours to elapse. It just shows you how completely arrogant and out of touch these people are even to the end. I mean, he was more concerned about taking cheap shots with the rights of this poor woman he could have helped. He was more concerned about that than her rights, than her life, than the concerns of her father and the concerns of her mother. There are also other interesting passages in this opinion, which I want to get to. He talks about judicial activism and other such things. In fact, here it is. Let me just read the whole thing. "Another popular epithet directed by some members of society include," and this is where he lashes out at the American public. This is from the opinion. I can't recall an opinion that was so adamantly in response to the public rather than on the merits of the case.

"A popular epithet directed by some members of society including some members of Congress toward the judiciary, involves the denunciation of activist judges. Generally, the definition of an activist judge is one who decides the outcome of a controversy before him according to personal conviction even one sincerely held as opposed to the dictates of the law as constrained by legal precedent and ultimately our Constitution. In resolving the Schiavo controversy, it is my judgment that despite sincere and altruistic motivation, the legislative and executive branches of our government have acted in a manner demonstrably at odds with our Founding Fathers blueprint for the governance of a free people, our Constitution. Since I have sworn as have they to uphold and defend that covenant I must respectfully concur in the denial of the request for rehearing en banc. I conclude that this is unconstitutional, and therefore this court and this district court are without jurisdiction in this case under that special act and should refuse to exercise any jurisdiction that we may otherwise have in this case." So basically he says we don't have jurisdiction even though Congress passed a law granting them jurisdiction in this case. Congress granted them... That's what the whole thing was about two Sunday nights ago, was granting the federal system jurisdiction. It didn't tell them they had to, didn't tell they had to conduct a review but said, "We're going to let this case move up the federal chain. We're going to have the federal chain involved and if the federal courts want to they can have," and they requested a de novo look at the case, from the beginning, brand-new.

Congress can give the federal courts jurisdiction in cases. They did in that legislation, and this judge simply rejects this law passed by Congress, claiming that it is in violation of the Constitution. Now, it is scary if this judge is unaware of Article 3 and unaware of the federal courts' relationship to the United States Congress and the duly elected representatives of the people, because by acing out Congress and by telling Congress it has no constitutional right to do what they did, telling the president the same thing, what Judge Birch is essentially saying is that We the People have no constitutional right. We the People have no constitutional right to question them. We the People have no constitutional right to ask them to review a case. Instead, he's going to say we don't have jurisdiction and nobody can say we have jurisdiction. "We don't want jurisdiction in this case. Plus I resent being called an activist judge. I'm not an activist judge the activists here are Congress and the president and you people and the public. You're the ones who are activist, I am not. I am enforcing the law." He didn't (interruption). Exactly right, Mr. Snerdley. In legalese action we were just flipped off. We were just flipped off by the 11th Circuit Court of Appeals.

Now, everybody is talking about -- and this is another good point. Everybody is talking about, "Well, a lot on the left are saying, 'Hey, you know, I don't know why you conservatives so upset. This is the most conservative district court of appeal in the country and the Supreme Court's the most conservative court that we've ever had. What are you all upset about?'" This doesn't have anything to do with politics. This has to do with totally judicial power and arrogance. We come back from the break, your phone calls are coming up. I found a piece. A friend of mine sent me a piece written by a Duke University law school student who has a different theory about why judicial activism is taking place and it dovetails with some of what we've been discussing today. But I want to share it with you because it's right on the money. I know a lot of people, you know, you talk about various aspects of the case today, but I continue to want to focus on the courts because the courts are the ones that made this happen. I mean you can say that George Felos is involved and Michael Schiavo and all that, true, but when you boil it down it's the courts that caused this woman to die or let this woman die, however you want to look at it. The US and state courts are the ones who made this day possible.

It is easy to share your sentiments. If they stay their course, they will rot in hell or go down into the pit, of course. It would be far better that they repent, accept God's forgiveness and help the rest of us. Some may, most won't. Same result.

Remember, Paul, the most prolific writer of the Bible, persecuted Christians before his repentance and acceptance of God's forgiveness.

There are neither checks or balances. Article 3 of the Constitution gives very little power to the Judiciary. All the power they accumulated over the years has either been given to them by the other two branches or taken by the courts themselves. What was given can be taken and what was taken should be nullified.

Correct, but the fault lies with the Legislative Branch. The Constitution cries out,but the Congress are silent. They should start Impeaching judges who act against the Constitution. It is that simple. These judges aren't Gods but they surely acting like it, and Congress is too impotent to do the right thing. Absolutely disgusting. They are failing us. The Judicial branch is full of evil humans who seek to rule us with their edicts. If this isn't corrected soon, our Republic will be no more.

I think that people who could have averted the wrenching melodrama of the last week failed to have the wisdom to see how hard it would be to watch.

I posted elsewhere that I don't think they believed it would last this long. I think that they thought she'd slip away after only a few days. When Easter came along, people were beginning to panic that she might die on Sunday and fulfill all sorts of parallel destinies. When Easter passed, the discussion moved onto how her stamina was an expression of a will to live, and the morphine that she was given flew in the face of claims of euphoria and peaceful, painless death.

-PJ

...and you get the door prize of the day! The root problem here is that no check has been exercised against the judiciary by the legislative and executive branches for many decades now - deliberately. The reason there are three braches is that they would tend to constrain each other against government officials' natural inclination towards tyranny. As originally designed, the individual states represented a major firewall against the leviathan state as well.

We have a de facto Kritarchy/Oligarghy. The judges impose the agenda while the other two branches dissemble to a dumbed-down electorate how they really can't do anything about it. McCain's law "thrusting a dagger into the heart of the 1st amendment" (Congressman Billybob's fine description) offers the perfect example: Bush signed the law and had the white house spin machine float the ridiculous story that he expected the SC to strike it down. If he really thought the law was wrong, he wouldn't have signed it to begin with.

Grand Ayatollah O'Connor subsequently penned the brilliant decision banning political speech in advance of primary and general elections, something that one would expect to find from a court in such bastions of freedom as Zimbabwe and Suadi Arabia. There haven't been any calls for repeal coming from the white house or Republican leadership, either. Instead, we have seen support for "closing the loopholes" - like blog sites on the internet.

The upcoming eminent domain case before the Supreme Court is very important. If the lawless gang of six rule according to their usual pattern, private property rights will be effectively abolished - goverment entities and corporate concerns granted eminent domain will start siezing property full tilt. Our liberties are being legally eviscerated one by one.

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