A Cautious Man
March 30, 2005
 
Think It Over, Judge, One More Time
When the United States Congress passed a special law directed to the tragic case of Ms. Schiavo, I had expressed some concerns about that. But, I am not a judge on a Federal Appeals Court, so why should you care what I think? However, an actual Federal Appeals Court Judge has made some observations, which are reasonable and should be considered:
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.

"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.

Erwin Chemerinsky, a law professor at Duke University, said Judge Birch probably felt it important to address the constitutionality of the law because the opportunity might never arise again.

"When Terri Schiavo dies this law expires because it was only about her," Mr. Chemerinsky said. "This raised an important constitutional issue that could come up again, and he's saying it's important that some judge be on the record about it."
You can read the whole article here (Link is to the NY Times - if you have to register, use "CautiousMan" as the Member ID, and "Cautious" as the password).

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