Appeals Court again refuses to intervene in Schiavo case

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.

UPDATE:
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.

UPDATE:
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.

Comments

  1. 1

    Dubyasux spews:

    Older Workers Win in US Supreme Court

    Off topic, but another important court ruling today is the US Supreme Court just made it much easier for older workers to sue employers for policies that favor younger workers.

  2. 2

    jcricket spews:

    All those Supremes should have recused themselves, they all have a conflict of interest in judging an age discrimination case, dontcha think?

    ;)

  3. 4

    Dubyasux spews:

    prr @ 3

    You’re right, it’s irrelevant because Washington’s workforce consists of young people and those over 40 are made into Solyent Green.

  4. 6

    spyder spews:

    The rule of law is reinforced for the moment. I took the time yesterday to listen to the oral arguments in the Grokster case. I realized part way through that the majority of the justices have no real clue about the nature of the technologies on which they are having to rule. We cannot have a “rule of law” if that law is determined in ignorance of the realities for which it was based. It is highly doubtful that people in their 70’s and 80’s are skilled technology users who would comprehend the inherent properties of Bit-torrent share systems or P2P application software intricasies and so forth. When an Appeals court justice suggests that the Legislative and Executive branches abused their constitutional authority in mandating judicial behavior, i can easily see the day when they do so with other matters, realizing, as i do, that the judicial systems are not fully capable of handling the issues forthcoming.

  5. 7

    chew2 spews:

    spyder @ 6

    You raise a pithy question: Who should I trust more? Some judge or some expert from my corporate IT department. Tough choice.

  6. 10

    David spews:

    I hope everyone following the Schiavo case will get a chance to watch this week’s South Park episode. (It aired Wednesday night and will be repeated tonight at 10.) Kenny is killed (again) . . . and he’s revived! It’s a medical miracle! But unfortunately he’s brain-dead and has to be connected to a feeding tube. Hilarity ensues. (If you tend to avoid South Park, don’t worry — this episode isn’t scatalogical or gross. Just pointed and funny. And impressively topical — their writers work quickly!)

  7. 11

    Dubyasux spews:

    To give credit where credit is due, Gov. Jeb said “no” to the fanatics who wanted him to ignore the court rulings and send the National Guard to reconnect Terri’s tube. But then again, maybe that’s because the Guard is on duty elsewhere …

  8. 12

    jpgee spews:

    CNN just reported that Terri has passed on to her maker. God bless her and take care of her. “thy will be done”

  9. 13

    Chee spews:

    Dubyasux@11, Last night’s TV aired a photo of Jesse meeting with Jeb in Florida. Why can’t they pray from a distance? More politics even after the judge spells it out; “against the Constitution.”

  10. 16

    Dubyasux spews:

    Let us now hope this family can put their differences aside and find a way to forgive and reconcile. The disagreements and legal battles don’t change the fact they are united by tragedy and sorrow. May God bless not only Terri, but also the living she leaves behind, and may God grant them the serenity and wisdom they will need in the days ahead.

  11. 17

    Chee spews:

    Diggindude@15. Let’s hope protesters put it to rest also. But doubt it, they will jump on the fact Michael ordered only the sister and brother to share the last moments with Terry and Michael; both parents were excluded. This may seem harsh, but tells me Michael did not want more hate and more hysteria to flood his and his wife’s last moments. He chose last momment to be one of solitude, included those capable of reverance. The parents were allowed to view Terry after death.

  12. 18

    Dubyasux spews:

    We have to expect those with a political agenda to milk it for all it’s worth. To them, this isn’t about Terri, it’s about using government to impose their personal beliefs on everyone else.

  13. 19

    Chee spews:

    Dubyasux@18. There will always be those who want to twist the will of God to their own likings, pre-determining for God what God’s will is while wringing the last drop out of the Schiavo case.

  14. 20

    Chris spews:

    Chee@17
    No matter what view you took on this issue. it cannot be ok with anyone that her family was made to leave the room as she lay dying. I don’t see how you can try to justify this or explain it away. Pretending Michael didn’t want to make the situation worse. Give me a break how could the situation get any worse. Here’s an idea, make the family leave the room in her last moments. What an asshole.

  15. 21

    Dubyasux spews:

    Chris @ 21

    You obviously don’t know much about what happens in hospices. Moments after my mother died, my sisters got into a shoving match in her room, and nearly knocked the body off the bed. They were fighting over who had a right to be alone with her first. From everything I know about the Schiavo case, Terri’s room wasn’t big enough for the Schindlers and Michael Schiavo at the same time. Who knows what might have happened if they were in there together. The moment of her death is not the right time to find out. This isn’t a question of “justifying” anything. In light of the history of this case, it would have been bad judgment to say the least for the Schindlers and Michael to have been in the room together in her last moments, and I doubt very much the hospice administrator would have allowed it. So the question becomes, who gets priority, the husband or the parents? The courts have answered that question. You may not like the courts’ answer, but they answered it.

  16. 22

    Chee spews:

    Chris@29. Maybe your wanting to ignore the existing circumstanses, ignore the horrid and horrendous treatment Michael has endured at the hands of his in-laws and others and would rather still fault the husband for wanting some peace and quiet in the last moments. The in-laws brought it on themselves by their own redundant, abnormal, hatefull, unreasonable and emotionally induced actions towards Terry’s husband. Sad affair all the way around, but the chickens came home to roost, what went around,came around; what you sow, you will reap. The in-laws sowed.

  17. 23

    Dubyasux spews:

    Chris, Terri has passed on. The families — and the nation — need to heal. Then move on to address the issues that need to be resolved for future cases. The last thing anyone needs is someone stirring up more strife. Give it a rest.

  18. 25

    Chee spews:

    Dubyasux@23. Sheesh…stop reading my mind. You now what they say, great minds run in the same channel. There is a wicked statement for the rehashers to grab and chew on.

  19. 26

    Chris spews:

    Chee & DonSux –

    You guys lack common sense. It is a terrible thing he did by preventing her family from being there. They have been by her side, fighting for her for the past 15 years and in her last moments of life he kicks them out of the room. Don’t give me this shit about how it might have gotten violent, this is their fucking daughter and the asshole made them leave the room as she took her last breathes. For you to excuse this is insane, but I have come to expect nothing more from the two of you. It was Michaels last dagger, buried right in the middle of their hearts, what an asshole. And for your infomation Don, I know a shitload more about hospice then you may think. I was, along with my wife, the hospice for my father-in-law. He died in my house. We took care of him until he took his last breath. Just because your family could not control themselves, means the Schindlers should not be in the room when their daughter dies? What evidence do you have over the last 15 years of care that Michael ever feared physically from being in the room with her family? Did he ever need a restraining order out of fear? Did it ever even come up? I never heard of a threat made against him by the family. And even if there was a risk of emotions getting the best of them, you don’t keep them from their daughter. Why didn’t he go wait in the hall with his new wife and kid’s. He can have a new wife, they only get one Terri. They cannot replace her and have loved her her entire life. He has already replaced her, physically and emotionally.

    So keep making excuses for the asshole, you look ridiculous doing so. This was a shit move on his part as any clear thinking person can see. Why is it so hard to say, he did the right thing letting her die but he relly was an ass for kicking them out of the room. What if that was your daughter and her husband told you to get out?

    I have always conceded that although I felt she would have wanted to be kept alive and was not PVS, that I could be wrong about that. She may infact really have wanted to die and may have truly been PVS. But about this I am not wrong about.

  20. 27

    Chris spews:

    Chee@24 – Issues don’t die because the person does. The issues surounding her life and death still exist. The debate over if this was right or wrong does not end because she died. You say oh, well she is dead, let’s move on. Kinda like the election, well Gregoire won she’s in office, forget about all the issues that got us where were at, just move on.

  21. 28

    Chee spews:

    Dubyasux@21. Benson had a cartoon out making fun of Tom Delay. Delay is lying in a ward in bed hooked to ten tubes; 1. illegal use of PAC cash. 2. lobby-paid junkets. 3. tax dodges. 4. gambling interests. 5. unlawful campaign contributons. 6. money laundering. 7 violations of state election laws. 8. shady friends. 9. illict busines deals. 10. criminal fund-raising. At the bedside of Delay stands the doctor, saying, Tom Delay is clearly in a persistent investigated state. is lif support shold be removed. To the right of Delay stands an elephant saying, No way. I’ve not examined him but I’d say he’s in a minimal ethically conscious state. At the foot of the bed are two protestors one saying, pray for Delay, the other holdng up sign that says, DEMOCRATS WILL SUFER HELLFIRE.

  22. 29

    theREALanonymous1 spews:

    Your phony piety and sactimony is disgusting.

    You actually have to believe in God and honor His word (in your everyday word and actions, not just when you find Him convenient) to credibly invoke Him.

    Just more mocking from the depraved reprobates and death groupies.

    ***

    So you won your battle for Terri to die and with her blood on her hands ask yourselves to think into the (probably immediate) future…

    Now that you have encouraged and cheered the state sanctioned murder of a woman with a loving family that wanted her to live and to care for her, who will speak out against the state sanctioned murders of those with NO ONE to care for them?

    ***

    TO MY FELLOW CONSERVATIVES wasting as much time as I do arguing with these narrow minded idealogues, death groupies, immoral relativists, Socialists and Communists, I personally think the best thing we can do here in this forum, is let them “die a slow death”. If we choose to walk away from this blog, if we refuse to engage them in discussion, arguement or debate it will dissolve under the weight of its own boring nastiness, vile language and repetitiveness. Most of these people only hold and voice the opinions they do because you, I and other Conservatives hold the OPPOSITE opinion. Let us simply pull the plug on this site by refusing to feed it with our participation. It will linger a while because, after all, it is liberal Seattle, but it will be an empty, hollow existance echoing empty, hollow words spewed by empty hollow, beings.

  23. 30

    theREALanonymous1 spews:

    Your phony piety and sactimony is disgusting.

    You actually have to believe in God and honor His word (in your everyday word and actions, not just when you find Him convenient) to credibly invoke Him.

    Just more mocking from the depraved reprobates and death groupies.

    ***

    So you won your battle for Terri to die and with her blood on her hands ask yourselves to think into the (probably immediate) future…

    Now that you have encouraged and cheered the state sanctioned murder of a woman with a loving family that wanted her to live and to care for her, who will speak out against the state sanctioned murders of those with NO ONE to love or care for them?

    ***

    TO MY FELLOW CONSERVATIVES wasting as much time as I do arguing with these narrow minded idealogues, death groupies, moral relativists Soci*lists and Communists, I personally think the best thing we can do here in this forum, is let them “die a slow death”. If we choose to walk away from this blog, if we refuse to engage them in discussion, arguement or debate it will dissolve under the weight of its own boring, nastiness, vile language and repetitiveness. Most of these people only hold and voice the opinions they do because you, I and other conservatives hold the OPPOSITE opinion. Let us simply pull the plug on this site by refusing to feed it with our participation. It will linger a while because after all it is liberal Seattle, but it will be an empty, hollow existance of emptier, more hollow words, spewed by irreverant, empty, hollow beings.

  24. 31

    Dubyasux spews:

    Oh alright, if it makes you two feel better, go ahead and ventilate! And if you want to leave this blog, feel free. Apparently not being able to shout other people down is a new experience for both of you.

  25. 32

    jcricket spews:

    You know, the “I’m leaving, but heed my parting words” posts are a staple of every forum, USENET group, blog, etc. They really should be compiled into a mad-lib, so you can just cut and paste when you want to throw in your parting shot.

    Bye Bye Anonymous. No one will miss you.

  26. 34

    Goldy spews:

    Anonymous… of course you are welcome to stay or to go as you see fit. But since you are anonymous, if you did go… how would we know?

  27. 36

    Chee spews:

    Dubyasux@31. Down South they say, you can get glad in the same clothes you got mad in. Paradox: Conservative is not so conservative, madness has taken over. :-)

  28. 37

    Chee spews:

    REAL ASS @ 30. “I personally think the best thing we can do here in this forum, is let them “die a slow death”. OH NO, is their any other option. You want us LIBS to die a slow death. You must have changed your platform, your erring on the wrong side.

  29. 38

    Chee spews:

    GOLDY. “MY FELLOW CONSERVATIVES.” At first glance. I thought George W. Bush had posted his State Of The Union Address complete with resigantion on Goldy’s Horsesass.org, to give Goldy another edge on Sound Politics. But alas alas. post 30 was a anonymous Dear John. Shucks!

  30. 39

    torridjoe spews:

    eh, it’s a tough day for anyone who felt she didn’t have to go, even if maybe they knew she wanted to in the end. The pummeling can start again tomorrow–maybe even Monday. They’re in wound-licking mode; they need time to heal. You leave those sanctimonious and anonymous folks alone today!