March 30, 2005

Federal judge rips Dubya & the Repubs a new one.

Say you want to get an idea of how far out of line Dubya, the congressional Republican leadership, and Dubya's brother (the governor of Florida) are on the Terri Schiavo issue. All you'd need to do was read an opinion from one of the judges on the latest federal court to turn down an appeal from Schiavo's parents, who had asked the court yet again order Schiavo's feeding tube re-attached.

The 11th Circuit Court decision, signed by Chief Judge J. L. Edmondson, was only a sentence long. But in a concurring opinion, Judge Stanley F. Birch Jr., appointed by the first President Bush in 1990, wrote that federal courts had no jurisdiction in the case and that the law enacted by Congress and President Bush allowing the Schindlers to seek a federal court 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."

Judge Birch said he had not had time before now to consider the constitutionality of the law, which Congress passed and Mr. Bush signed before dawn March 21, because of "the rapid developments and sensitivities in this case." The 11th Circuit Court considered and rejected several appeals from the Schindlers last week after Judge James D. Whittemore of Federal District Court in Tampa denied their motions.

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. Judge Birch wrote the ruling for a three-judge panel of the court last year unanimously upholding a Florida law that prohibits gay men and lesbians from adopting children.

If a judge like Birch won't buy the Republican line on Schiavo, it may be that this whole affair will be an albatross around the necks of many GOP candiates in the next election cycle.

Via NY Times.

Posted by Magpie at March 30, 2005 08:24 PM | Law/Justice | Technorati links |