RELIGIOUS EXTREMISTS SEEK THEIR OWN 'ACTIVIST' JUDGES

Yahoo! News (April 3, 2005) ^ | Sat Apr 2, 8:25 PM ET | Cynthia Tucker

[Gondring]

Friends of Florida judge George Greer describe him as a low-key conservative Christian, a Republican, a family man, a dog lover. Appellate courts have found over and over again that Greer simply followed the law in deciding a sad and controversial case. But for that sin, the Pinellas County Circuit Court judge was invited out of his Southern Baptist Church.

Cynthia Tucker

Apparently, Greer's critics, including his pastor, didn't like his rulings in the Terri Schiavo case, which landed in his courtroom in 1998. They wanted him to be an activist judge -- a jurist who ignored the law and ruled according to the passions of a group of partisans.

Ultraconservatives want you to believe the term "activist judge" applies to a group of determined liberals whose rulings have overturned historic precedent, undermined morality and defied common sense. But the controversy that erupted around Schiavo, who died on Thursday, ought to remind us once and for all what "activist judge" really means: a jurist whose rulings dissatisfy a right-wing political constituency.

Over the next few months, you'll hear the term "activist judge" often as President Bush nominates justices to the U.S. Supreme Court. The president could end up appointing as many as four. Chief Justice William Rehnquist, 80, is ailing with cancer; John Paul Stevens is also an octogenarian. Sandra Day O'Connor and Ruth Bader Ginsburg are cancer survivors in their 70s.

With so many likely vacancies, ultraconservatives see an opportunity to drive from the bench any semblance of fealty to the law or the U.S. Constitution. They claim that judges have become the tool of an outlandish liberal fringe that has violated the graves of the Founding Fathers. When right-wing talk-show hosts and U.S. senators denounce judicial activism, they conjure up images of jurists who terrorize the God-fearing, coddle criminals and would -- according to one crazed campaign memo passed around during last year's presidential campaign -- outlaw the Bible.

The next time you hear those claims, think of Judge Greer, whose politics tilt to the right. He is among the targets of ultraconservative ire.

For that matter, think of the current Supreme Court -- hardly a bastion of liberalism. Its justices declined to intervene in the Schiavo case because they could find no legitimate reason to do so.

While the rift between Michael Schiavo and his in-laws, Bob and Mary Schindler, is depressing, family conflict is almost a way of life in America. Courts are called upon often to settle family disputes over money, children and property. Florida law makes clear that a spouse has the right to decide end-of-life issues, and, after testimony from several people, Greer upheld Schiavo's claim that his wife didn't want to be kept alive through artificial means.

It is perfectly understandable that the Schindlers were unhappy with his ruling. As grieving parents, they wanted to believe, contrary to the judgment of several physicians, that their daughter might one day be miraculously restored.

But the attacks on the judiciary by the Schindlers' supporters -- including an attempted end-run by an activist Congress -- made it clear that a minority of religious extremists have no respect for the law and no understanding of the separation of powers on which this government was founded.

Among those who missed their high school civics class, apparently, were Congress and the president. In one of many rulings turning down the Schindlers' request for intervention, an Atlanta federal court judge chastised the executive and legislative branches for overreaching.

"Congress chose to overstep constitutional boundaries into the province of the judiciary. Such an act cannot be countenanced," wrote Judge Stanley Birch, who was appointed by former President George H.W. Bush. Hardly a liberal activist.

The current President Bush has already made clear that his idea of a model chief justice is Clarence Thomas, who has no respect for judicial precedent. But even Thomas might not satisfy the extremists who chastise Judge Greer. They will be satisfied with nothing less than a judiciary steeped in the same narrow religious views they want to impose on the nation.

---

Cynthia Tucker is editorial page editor for The Atlanta Journal-Constitution. She can be reached by e-mail: cynthia@ajc.com.

[inquest]

Actually I was speaking from moral conviction, which may or may not be the same thing. (hope that doesn't make me a "moral extremist")

In any case, I was wondering if you had anything to say in response to my main post to you, at #554.

[Wolfstar]

In any case, I was wondering if you had anything to say in response to my main post to you, at #554.

Taking just a small part of what a person says and responding to it out of context doesn't help further mutual understanding.

The remainder of my original comment to you said: "However, there is no comparison whatsoever between slavery and the issues raised by the Schiavo case. You are free, of course, to respect or disrespect what you wish. In the same vein, I and others are free to view you as a religious extremist who admittedly has no respect for the law and no understanding of the separation of powers on which this government was founded."

The key, of course, is that I do not see any comparison whatsoever between slavery and the Schiavo case. That is not to say I see no problems with the Schiavo case.

I do think the trial judge followed the law as it is written in Florida. I think the law is flawed in that it apparently leaves the trial judge with no discretionary powers. For this reason, I think the invective heaped on him by self-professed Christians is highly extreme. I think his being shunned by his church is highly extreme.

I am uncomfortable with the following points raised by Schiavo and would like to see laws changed to cover them:

1. Who should make end-of-life decisions when the patient leaves no written instructions?

2. Courts should be allowed discretionary powers when the guardian has a conflict of interest.

3. Courts should be allowed discretionary powers when there is a dispute between close relatives, with one party to the dispute being both willing and able to care for the patient. (However, I do not think such care should be funded by the taxpayer.)

4. Appeals to the federal level should be permissible in end-of-life disputes such as we saw in Schiavo. Such appeals should include an automatic review of the facts of the case. No retrial, which appellate courts are not designed for, but a bona fide review.

I would also like to see our lawmakers and society have an honest discussion of euthanasia, which is practiced every day in this country even though few use the word. What happened to Terri Schiavo (and others) was euthanasia by omission, and I think the method was both cowardly and cruel. Even if she could not feel anything (which I believe to be the truth of the matter), her parents and siblings certainly could.

Inquest, the problem with so many people who have been foaming at the mouth about this case on FR these last few weeks is that they have zero tolerance for any point of view which even partially disagrees with their own. And rather than just disagree and politely debate, they hurl invective and insults, even toward people who largely agree with them. I don't come at my points of agreement from a religious context, but from a secular and constitutional one.

Despite the fact that I largely share the same concerns about Schiavo as those expressed all over FR lately, the harsh, seriously intolerant and, yes, extreme nature of the debate I've seen here profoundly disgusts me.

[Nick Danger]

How convenient. Categorize people as "them" or "us." Makes it so much easier to insult, dehumanize and ignore "them."

"The poster had applauded the same action in #547. By rule, the poster cannot turn around and complain about the same thing in the next ten notes.

"Five yards and a night in the box."

[inquest]

The remainder of my original comment to you said: "However, there is no comparison whatsoever between slavery and the issues raised by the Schiavo case. You are free, of course, to respect or disrespect what you wish. In the same vein, I and others are free to view you as a religious extremist who admittedly has no respect for the law and no understanding of the separation of powers on which this government was founded."

I understand that's what you said. That's why I said in my response to your post, "I'm not talking just yet about the merits or demerits of the Schiavo case." I just wanted to get you to acknowledge whether it's possible to disrespect a particular immoral law (like the fugitive slave law) without being devoid of respect for the law in general.

[Ramonchito]

Perhaps you should write a lengthly article on Terri's case or even a book so as to enligthen the public. When the law of Terri's case is reviewed in Congress, lengthly and detailed researches such as the one I am suggesting you make will be taken into consideration by the legislators in revising the law.

I have been reading so many claims and counterclaims on Terri's case but the truth is I really don't know the case very much except from cursory articles I read in this website and elsewhere.

[jwalsh07]

ME: "The federal government is the final protector of individual rights and that is its reason for being, period. There is no conflict between conservatism and individual rights, none at all."

You: "Be careful with that one, as you may incur the wrath of those who believe in capital punishment, prohibitions against gay unions/marriage, and a host of other laws either created by the federal government to "protect" individual rights or of the judiciary essentially doing the same thing."

Be careful with what? My statement is factual, not whimsy or wishful thinking.

Why would I incur the wrath of those who believe in capital punishment? I believe in capital punishment. I also believe in the Great Writ. You see those two as conflicting?

What does gay "marriage" have to do with anything? I oppose it but under the current Constitution of the United States, states have the power to give special rights to homosexuals. But the Constitution certainly doesn't speak to special rights for homosexuals. What's your point?

I see your problem , I think. You have an expansive view of what individual "rights" are. I don't. Life is an individual right guaranteed constitutionally, a Cadillac in your driveway or Irving wedding Sam is not.

If your state sentences you to death will you be forfeiting your Habeas Rights?

[MACVSOG68]

"The federal government is the final protector of individual rights and that is its reason for being, period. There is no conflict between conservatism and individual rights, none at all."

I don't see that anywhere. Individual rights that are guaranteed by the Constitution do not identify the federal government itself as its final protector. If so, then the federal government should intervene in every case where it feels that "individual rights" may be in jeopardy.

you may incur the wrath of those who believe in capital punishment, prohibitions against gay unions/marriage, and a host of other laws either created by the federal government to "protect" individual rights or of the judiciary essentially doing the same thing."

My mistake, I meant who do not believe in capital punishment. But the point is still valid. Or is it only those rights you approve of, not those approved of by the left?

But the Constitution certainly doesn't speak to special rights for homosexuals. What's your point?

You want the federal government to be the final guarantor of individual rights. But yet any of those "rights" I mentioned are not on your list.

I see your problem , I think. You have an expansive view of what individual "rights" are. I don't. Life is an individual right guaranteed constitutionally, a Cadillac in your driveway or Irving wedding Sam is not.

Which Amendment or article guarantees life?

But then life is only one of an assortment of individual rights. Again, is your list the only operable one?

The judiciary is the branch in both federal and state cases to handle such individual issues, not the Congress, nor the President.

[jwalsh07]

Which Amendment or article guarantees life?

Mac, nothing personal, but you're constitutionally challenged. Why don't you try reading the BOR's and then get back to me.

[Ohioan from Florida]

Terri ping to the information at post 151! Please bookmark it for handy reference. If anyone would like to be added to or removed from my Terri ping list, please let me know by FReepmail!

[nicmarlo]

Excellent summation of all our concerns, DBR! Thanks for the ping, ohioan.

[Ramonchito]

Those who complained about the judges' decision in Terri's case alleged that the judge acted very arbitrarily. Terri's case is one factor that will help advance the cause of the law. That is why although in this case, I am in favor of Terri's parents, I do not hesitate to criticize those prolifers who they advance legal theories that will only muddle the case.

The issue is that those who are in favor of the parent's side in Terri's case say that the judges acted arbitrarily in the adjudication of this court case. If so, in what way did the judge act in an arbitrary manner? This is the crux of the matter.

The answer to this question is the most important fact from the point of view of a legislator. Perhaps there may exist some defects not only in the law governing this case but also the court decisions.

If the defect lies in the court decision, then it is a matter of waiting until a judge lays down the rule that will address the problem that was raised in Terri's case, that the judge did actually act very arbitrarily. Until such judicial ruling is laid down, the existing jurisprudence is so far the best that is available to answer to this dilemma.

There is no doubt that the judge possesses the right to make decisions on cases laid on his sala. He may choose to admit or disregard the evidence presented to him by both litigating parties. However, the judge's discretionary powers are limited by previous judicial precedents as well as by the law.

If the defect is found in the law, this is where the legislative process comes here. First the legislator has to identify where the defect is in the law so that the proper remedy may be applied in subsequent amendments to the law.

I say Terri's case will be one factor for the further refinement of the law on evidence. The bone of contention, from my cursory reading of this case, is that Terri expressed her wish to her husband to die which has been contested by the parents.

That is why this contentions in society will only ultimately strengthen the hands of the law. It will make the law supreme.

[Gondring]

I agree with you about liberty rights and the right to die. However, like many others, I have some issues about the reliability of the evidence that Terri Schiavo expressed a wish to exercise that right.

Fair enough. That's a separate question.

I also think that it's not required, because the law provides for such a case, so perhaps there can be legitimate discussion on whether to change that law...but to send in the military or whatever....well, that's nuts.

[Gondring]

That the folks on your side are willing to wink at the breaking of a contract because it is the marriage contract does not speak well of your commitment to conservatism or libertarianism, whichever it is you claim as your mantle.

Ex post facto argument--people were trying to block Mr. Schiavo even before he had children with another woman. Plus, it's not like either side is superior in that respect, as it was the Schindlers who encouraged Mr. Schiavo to date.

Think civil rights, Dred Scott, Terri Schiavo.

~~~One of these things is not like the others; one of these things doesn't belong~~~

A long time ago, I advocated that the Schindlers simply take their daughter elsewhere because I knew the outcome was inevitable. If it had been my daughter, I would have. Doesn't make me a "pseudoconservative", it makes me a father.

And would you lead that macabre Schindler scene of having your child's limbs amputated, etc., even if she didn't want that? I tell you what... that's selfishness, not love. At some point, a good father recognizes his child is a separate individual with separate desires and rights, not just a mere piece of property.

I do think that the Schindlers, like many relatives of PVS patients, truly believed that Mrs. Schiavo was responding to them. We are often creatures of hope, not reality("where there's life, there's hope" takes on another meaning in that sense, eh?). Perhaps Mr. Schindler had some abuse guilt in there, too? Who can say...

As far as Federal intervention, it was quite clear that Mrs. Schiavo had not been denied Constitutional protection--unlike the civil rights or Dred Scott examples. The law was equally protective, and I think if you look at the complete and actual documents from the case, it's clear that the courts made the right decisions (yes, I was originally one to criticize Greer...but I admit that was a mistake made before I read the evidence >blush<).

[Gondring]

According to the "facts" of this case, a PVS patient cannot swallow (and M.S.'s doctors testified that she couldn't).

I said "ingest," not "swallow"...it's clear that some material can make it down even without swallowing--although aspiration is a clear risk.

Mrs. Schiavo failed three swallowing tests that were given to her, so old claims from aides don't seem to be relevant. Even if she could swallow at one point, she deteriorated even during therapy (heck, even during her initial hospital admission!) and it was clear she couldn't swallow at later times.

[pickyourpoison]

same here

[pickyourpoison]

There are many more of these cases...Hugh Finn and Marjorie Nighbert are two cases like the Terri case.
However, Terri's got more media attention.

[MACVSOG68]

Mac, nothing personal, but you're constitutionally challenged. Why don't you try reading the BOR's and then get back to me.

Well, professor, why don't you simply answer the question? You made a statement that the constitution guaranteed life as an individual right. So I ask again, where in the BOR is life itself a guaranteed right. In fact, just the opposite is true. The Bill of Rights permits the deprival of life under due process of law.

Many here may not like what happened in Florida, but a review of Judge Greer's decisions by 40 plus judges, many who were quite conservative would seem to indicate to us consitutionally challenged that due process had taken place.

So, nothing personal, but before you challenge someone's knowledge of the constitution, a reading yourself might help.

[jwalsh07]

Well, professor, why don't you simply answer the question?

Not a professor, I wear work boots and a blue collar.

You made a statement that the constitution guaranteed life as an individual right.

That's right I did and the fact that you question that fact gives me the willies. The 5th and 14th Amendments are pretty clear Mac.

So I ask again, where in the BOR is life itself a guaranteed right.

5A: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

14A: Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.

In fact, just the opposite is true. The Bill of Rights permits the deprival of life under due process of law.

Due process has changed stripes since the Schiavo case. In American jurisprudence, state ordered deaths required a trial by jury, evidence beyond a reasonable doubt and an advocate for the citizen ordered to die. We now have established precedent that none of those are required and Probate Judges have been elevated to a position henceforth unknown in America, endowed with the wisdom to order the death of American citizens. I think that should give you pause for thought. That it doesn't is not surprising after the last month or so however.

Many here may not like what happened in Florida, but a review of Judge Greer's decisions by 40 plus judges, many who were quite conservative would seem to indicate to us consitutionally challenged that due process had taken place.

That I disagree with "40 judges" who reviewed the process doesn't cause me much angst. I disagree with judges all the time. For instance, I happen to think that every judge in America who has ruled that killing third trimester babies is a guaranteed right in the US Constitution is a lunatic. Such is life. So, nothing personal, but before you challenge someone's knowledge of the constitution, a reading yourself might help.

[jwalsh07]

Ex post facto argument--people were trying to block Mr. Schiavo even before he had children with another woman.

:-} Are you serious? Either you respect contracts or you don't. When the contract is broken the contract is null and void. You don't have to agree with that statement but claiming the contract was valid in 1993 makes it valid in 2000 is kind of ducking the point, no?

Plus, it's not like either side is superior in that respect, as it was the Schindlers who encouraged Mr. Schiavo to date.

Has nothing to do with broken contracts. If I urge you to break your contract with your partner and you break it, the contract is still broken.

~~~One of these things is not like the others; one of these things doesn't belong~~~

No, they all belong, they are all examples of process trumping the natural law and individual rights.

And would you lead that macabre Schindler scene of having your child's limbs amputated, etc., even if she didn't want that? I tell you what... that's selfishness, not love. At some point, a good father recognizes his child is a separate individual with separate desires and rights, not just a mere piece of property.

Garbage. If Doctors tell you that your daughter is not brain dead and that she has cortex and may be functioning at some state of consciousness and you don't fight for your daughters life, you are not much of a man IMHO.

I do think that the Schindlers, like many relatives of PVS patients, truly believed that Mrs. Schiavo was responding to them. We are often creatures of hope, not reality("where there's life, there's hope" takes on another meaning in that sense, eh?). Perhaps Mr. Schindler had some abuse guilt in there, too? Who can say...

The he was right to fight for his daughters life. Guilt about what?

As far as Federal intervention, it was quite clear that Mrs. Schiavo had not been denied Constitutional protection--unlike the civil rights or Dred Scott examples. The law was equally protective, and I think if you look at the complete and actual documents from the case, it's clear that the courts made the right decisions (yes, I was originally one to criticize Greer...but I admit that was a mistake made before I read the evidence >blush<).

See my post to Mac directly above. Giving Probate Judges the power of life and death is something we will come to regret. Write that down in your IPAC.

[pickyourpoison]

Others have been mentioned. There was a thread about Hugh Finn a few days ago. Terri's case is the most recent however.

http://www.freerepublic.com/focus/f-backroom/1370784/posts