Thursday, March 31, 2005

And the best part? Judge Stanley Birch is a Bush 41 appointee.

and the conservative 11th Circuit judge savaged "Terri's Law.'


Federal Judge Condemns Intervention in Schiavo Case

By ABBY GOODNOUGH and WILLIAM YARDLEY
(snip)

The 11th Circuit court's 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 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.

(snip)

From the NY Times