No surprise… the 11th U.S. Circuit Court of Appeals has once again rejected a petition for a new hearing on the Terri Schiavo case, just 15 hours after agreeing to consider it.
“Any further action by our court or the district court would be improper,” Judge Stanley F. Birch Jr. wrote. “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.”
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.”
Personally, I’m not so sure how sincere President Bush and the Republican leadership was, but I agree with the court’s public scolding. The court — all the courts — ruled based on the law.
While the 11th Circuit’s decision today was a single sentence long, The New York Times reports that a concurring opinion by Judge Stanley F. Birch Jr., a conservative judge appointed in 1990 by Bush the Elder, was absolutely scathing, arguing that the federal courts had no jurisdiction, and that the law enacted by Congress and President Bush seeking federal judicial review was unconstitutional.
“When the fervor of political passions moves the executive and legislative branches to act in ways inimical to basic constitutional principles, it is the duty of the judiciary to intervene,” wrote Judge Birch, who has a reputation as consistently conservative. “If sacrifices to the independence of the judiciary are permitted today, precedent is established for the constitutional transgressions of tomorrow.”
In particular, Judge Birch wrote, a provision of the new law requiring a fresh federal review of all the evidence presented in the case, litigated for seven years in state court, made it unconstitutional. Because that provision constitutes “legislative dictation of how a federal court should exercise its judicial functions,” he wrote, it “invades the province of the judiciary and violates the separation of powers principle.”
David J. Garrow, a legal historian at Emory University who closely follows the 11th Circuit, said Judge Birch’s opinion was striking because the judge was a conservative Republican, especially regarding social issues. [...] “This is a Republican judge going out of his way to directly criticize the Congress and President Bush for what they’ve done,” Mr. Garrow said.
When it comes to nominating judges who strictly interpret the Constitution, right-wingers are learning they should be careful what they wish for.
Justice Anthony Kennedy has denied the Schindler’s request for a hearing, marking the sixth time the U.S. Supreme Court has chosen not to intervene in the Terri Schiavo case.