Federal Judge Condemns Intervention in Schiavo Case

[BigRog]

Federal Judge Condemns Intervention in Schiavo Case
By ABBY GOODNOUGH and WILLIAM YARDLEY

Published: March 31, 2005




PINELLAS PARK, Fla., March 30 - A federal appeals court in Atlanta refused Wednesday to reconsider the case of Terri Schiavo, with one of the judges rebuking President Bush and Congress for acting "in a manner demonstrably at odds with our founding fathers' blueprint for the governance of a free people."

Outside the hospice where Ms. Schiavo has gone almost two weeks without her feeding tube, the mood was quieter than in recent days. At one point her father, Robert Schindler, emerged to say that Ms. Schiavo looked good, given the circumstances, but the Rev. Jesse Jackson, who met with her parents for the second day in a row, later said he was urging them to accept her probably imminent death.

"They're hoping against hope but they know that you cannot live without food and water," Mr. Jackson said in an interview. "They are looking for every spark in the dark that could be her light. But these are very mature people, and they are looking at her real-life options."

Mr. Schindler and his wife, Mary, had asked the full United States Court of Appeals for the 11th Circuit on Wednesday to consider ordering their daughter's feeding tube reinserted. A three-judge panel declined to issue such an order last Friday, and after less than day's deliberation, the full court issued a 10-to-2 decision rejecting the latest request.

An emergency appeal the Schindlers filed with the Supreme Court Wednesday night, asking that Ms. Schiavo's feeding tube be reinserted while they made further appeals, was rejected. It was the sixth time the court declined to intervene.

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.

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."

Mr. Jackson returned to Woodside Hospice in Pinellas Park after meeting with Gov. Jeb Bush and state lawmakers earlier in Tallahassee. There, he pressed lawmakers to reconsider legislation the State Senate rejected last week that would outlaw the removal of feeding tubes from patients who had not left written instructions. Ms. Schiavo, who suffered severe brain damage in 1990, left no instructions. But a state judge accepted the testimony of her husband, Michael Schiavo, that on several occasions she had said she would not want to be kept alive artificially.

Mr. Schiavo, who has sought to remove his wife's feeding tube and let her die since 1998, has long battled with her parents, who believe she responds to them and could improve.

After meeting with Mr. Jackson in his office, Governor Bush praised him for lobbying on behalf of the Schindlers. Acknowledging the political differences between Mr. Jackson, a liberal Democrat, and many of the Schindlers' supporters, he described Mr. Jackson's efforts as "kind of like Nixon going to China."

Mr. Schiavo's lawyer, George Felos, arrived at the hospice Wednesday morning and stayed on the grounds all day, leading to speculation that Ms. Schiavo's death might be near. Yet in the early afternoon, Mr. Schindler told reporters that his daughter still looked good, bringing four relatives and friends who had seen her that morning to the microphones to back him up.

"I was pleasantly surprised by what I saw and encouraged," Mr. Schindler said of his morning visit with Ms. Schiavo. "She's still fighting, and we are still fighting for her."

[asleitch]

....Brain-damaged Terri Schiavo dies

Terri Schiavo, the brain-damaged Florida woman at the heart of a bitter legal dispute, has died, a spokesman for her parents said.

Mrs Schiavo's feeding tube was disconnected on 18 March, following a seven-year battle through the courts.

Her husband Michael Schiavo had said his wife would not have wanted to live in her current condition.

The 41-year-old's parents fought to the highest level of the US courts system to keep their daughter alive.

[BigRog]

R.I.P.

[Robo]

with one of the judges rebuking President Bush and Congress for acting "in a manner demonstrably at odds with our founding fathers' blueprint for the governance of a free people."

I can't speak for the rest of you, but I consider Thomas Jefferson and Abe Lincoln  as part of our "founding fathers"   and they surely didn't believe in    the judicary as and unchalleged final arbitrator.

But hey, who cares if it is true, it sounds good and the American people are stupid enough to believe him.


Thomas Jefferson on Judicial Tyranny

“Nothing in the Constitution has given them [the federal judges] a right to decide for the Executive, more than to the Executive to decide for them. . . . The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves, in their own sphere of action, but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.� (Letter to Abigail Adams, September 11, 1804)

“The original error [was in] establishing a judiciary independent of the nation, and which, from the citadel of the law, can turn its guns on those they were meant to defend, and control and fashion their proceedings to its own will.� (Letter to John Wayles Eppes, 1807)

“Our Constitution . . . intending to establish three departments, co-ordinate and independent that they might check and balance one another, it has given—according to this opinion to one of them alone the right to prescribe rules for the government of others; and to that one, too, which is unelected by and independent of the nation. . . . The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.� (Letter to Judge Spencer Roane, Sept. 6, 1819)

“You seem . . . to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so . . . and their power [is] the more dangerous, as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with corruptions of time and party, its members would become despots.� (Letter to William Jarvis, Sept. 28, 1820)

“The judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric. They are construing our constitution from a co-ordination of a general and special government to a general and supreme one alone. This will lay all things at their feet, and they are too well versed in English law to forget the maxim, ‘boni judicis est ampliare jurisdictionem’ [good judges have ample jurisdiction]. . . . A judiciary independent of a king or executive alone, is a good thing; but independence of the will of the nation is a solecism, at least in a republican government.� (Letter to Thomas Ritchie, Dec. 25, 1820)

“The germ of dissolution of our federal government is in the constitution of the federal Judiciary; an irresponsible body (for impeachment is scarcely a scare-crow) working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped.� (Letter to Charles Hammond, August 18, 1821)

“The great object of my fear is the Federal Judiciary. That body, like gravity, ever acting with noiseless foot and unalarming advance, gaining ground step by step and holding what it gains, is engulfing insidiously the special governments into the jaws of that which feeds them.� (Letter to Judge Spencer Roane, 1821)

“At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions, nevertheless, become law by precedent, sapping, by little and little, the foundations of the constitution, and working its change by construction, before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life if secured against all liability to account.� (Letter to A. Coray, October 31, 1823)

 â€œOne single object… [will merit] the endless gratitude of the society: that of restraining the judges from usurping legislation.â€� (Letter to Edward Livingston, March 25, 1825)

Abraham Lincoln’s first inaugural address:  

“…The candid citizen must confess that if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having, to that extent, practically resigned their government into the hands of that eminent tribunal.�

[Kris^]

It's quite true that the Constitution does not give any branch of government the power to determine the constitutionality of the actions of either of the other two branches.  Theoretically, each branch could declare that their actions are constitutional, and not submit to any contrary declaration from the other branches.  I think it's an amazing bit of history that now gives the court that power.  However, the politics of the day was as intriguing as now, and the ascendency of the judiciary was a direct result of those politics.

During Adams' tenure as president, he appointed Jefferson's cousin, John Marshall, as chief justice of the Supreme Court.  Then, in the last days of Adams administration, Adams made several judicial appointments, particularly some justice of the peace appointments on the last evening of his presidency -- the "midnight appointments."  Upon taking office, his successor, Thomas Jefferson, made it a policy to refuse the commission of several of Adams' appointments.  

From the White House website:

"The legend of the "Midnight Judges" grew out of the concatenation of discrete events. The executive department filled many posts in a flurry that continued up to the last day of the Adams presidency. The judicial appointments were made late in the lame duck session of Congress, though not at its very end. And there was probably no one Jefferson hated more than his cousin John Marshall. Although Jefferson would have preferred to staff the offices in Washington himself, he really had no quarrel with most of Adams’s appointees.
. . . .
As for the circuit appointments, one suspects that Jefferson and his party objected to the fact of their existence more than the means by which they were created. The Republicans never liked the Judiciary Act of 1801 because they saw it as a means of projecting federal power into the states, and they repealed it shortly after taking power. But John Marshall remained, anchoring the Supreme Court long after Jefferson served his two terms. Marshall was probably the only person in Washington who had the intelligence and the finesse to outduel Jefferson in political combat, and Jefferson always resented his appointment. Jefferson’s loathing of Marshall fed his condemnation of the 'Midnight Judges,' the spectacle of commissions being signed in the dying hours of the Adams administration becoming a trope for personal pique."  

One of the appointed JPs who was refused his commission sued Jefferson's secratary of state, James Madison, for his office.  In Marbury v. Madison, John Marshall gave Jefferson his victory, but in such a way that Jefferson would later rue.  From the Columbia Encyclopedia:

"Chief Justice John Marshall held that, although Marbury was entitled to the commission, the statute that was the basis of the particular remedy sought was unconstitutional because it gave the Supreme Court authority that was implicitly denied it by Article 3 of the U.S. Constitution. The decision was the first by the Supreme Court to declare unconstitutional and void an act passed by Congress that the Court considered in violation of the Constitution. The decision established the doctrine of judicial review, which recognizes the authority of courts to declare statutes unconstitutional."

Jefferson could either accept the court's declaration of power and claim his victory, or reject the court's ruling and accept defeat on the matter.  Marshall very neatly made this power grab for the court amidst the political power struggle between the other branches, and there it still stands today.

So is it any wonder Jefferson would later say the court has too much power?  View Jefferson's remarks in the light of the politics and personalities of the day.  The "founding fathers" were not saints, but were just men working in a political environment, and we live with their legacies, for good or bad.  

-- Kris

[BigRog]

I find it interesting that NO judge has foiund for keeping Terry alive after over 30 trials. Are they all corrupt idiots? Is there a vast conspiracy? It is a emoptional heart rending affair but the facts will come out after the autopsy which the husband said he was going to request after her death. The right to life faction in this country has made this into a giant crusade. Apparently the christian movements spokes people have stated that they will show their disssapointment with the republican party at election time. Who will they vote for?
And if you look at the polls the majority of Americans support her being allowed to die.

[BigRog]

I like Jefferson quite a bit
Here is some more of my favorite founding father

Religion Intermeddling in Government
"Whenever... preachers, instead of a lesson in religion, put [their congregation] off with a discourse on the Copernican system, on chemical affinities, on the construction of government, or the characters or conduct of those administering it, it is a breach of contract, depriving their audience of the kind of service for which they are salaried, and giving them, instead of it, what they did not want, or, if wanted, would rather seek from better sources in that particular art of science." --Thomas Jefferson to P. H. Wendover, 1815. ME 14:281

"Ministers of the Gospel are excluded [from serving as Visitors of the county Elementary Schools] to avoid jealousy from the other sects, were the public education committed to the ministers of a particular one; and with more reason than in the case of their exclusion from the legislative and executive functions." --Thomas Jefferson: Note to Elementary School Act, 1817. ME 17:419

"No religious reading, instruction or exercise, shall be prescribed or practiced [in the elementary schools] inconsistent with the tenets of any religious sect or denomination." --Thomas Jefferson: Elementary School Act, 1817. ME 17:425

"I do not know that it is a duty to disturb by missionaries the religion and peace of other countries, who may think themselves bound to extinguish by fire and fagot the heresies to which we give the name of conversions, and quote our own example for it. Were the Pope, or his holy allies, to send in mission to us some thousands of Jesuit priests to convert us to their orthodoxy, I suspect that we should deem and treat it as a national aggression on our peace and faith." --Thomas Jefferson to Michael Megear, 1823. ME 15:434


Establishments of Religion Undermine Rights
"The clergy, by getting themselves established by law and ingrafted into the machine of government, have been a very formidable engine against the civil and religious rights of man." --Thomas Jefferson to Jeremiah Moor, 1800.

"The Christian religion, when divested of the rags in which they [the clergy] have enveloped it, and brought to the original purity and simplicity of it's benevolent institutor, is a religion of all others most friendly to liberty, science, and the freest expansion of the human mind." --Thomas Jefferson to Moses Robinson, 1801. ME 10:237

"But a short time elapsed after the death of the great reformer of the Jewish religion, before his principles were departed from by those who professed to be his special servants, and perverted into an engine for enslaving mankind, and aggrandizing their oppressors in Church and State." --Thomas Jefferson to Samuel Kercheval, 1810. ME 12:345

"[If] the nature of... government [were] a subordination of the civil to the ecclesiastical power, I [would] consider it as desperate for long years to come. Their steady habits [will] exclude the advances of information, and they [will] seem exactly where they [have always been]. And there [the] clergy will always keep them if they can. [They] will follow the bark of liberty only by the help of a tow-rope." --Thomas Jefferson to Pierrepont Edwards, July 1801. (*)

"This doctrine ['that the condition of man cannot be ameliorated, that what has been must ever be, and that to secure ourselves where we are we must tread with awful reverence in the footsteps of our fathers'] is the genuine fruit of the alliance between Church and State, the tenants of which finding themselves but too well in their present condition, oppose all advances which might unmask their usurpations and monopolies of honors, wealth and power, and fear every change as endangering the comforts they now hold." --Thomas Jefferson: Report for University of Virginia, 1818.

"I am for freedom of religion, and against all maneuvers to bring about a legal ascendency of one sect over another." --Thomas Jefferson to Elbridge Gerry, 1799. ME 10:78

"The advocate of religious freedom is to expect neither peace nor forgiveness from [the clergy]." --Thomas Jefferson to Levi Lincoln, 1802. ME 10:305

"The clergy...believe that any portion of power confided to me [as President] will be exerted in opposition to their schemes. And they believe rightly: for I have sworn upon the altar of God, eternal hostility against every form of tyranny over the mind of man. But this is all they have to fear from me: and enough, too, in their opinion." --Thomas Jefferson to Benjamin Rush, 1800. ME 10:173

"Believing... that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their Legislature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between Church and State." --Thomas Jefferson to Danbury Baptists, 1802. ME 16:281

"I am really mortified to be told that, in the United States of America, a fact like this [i.e., the purchase of an apparent geological or astronomical work] can become a subject of inquiry, and of criminal inquiry too, as an offense against religion; that a question about the sale of a book can be carried before the civil magistrate. Is this then our freedom of religion? and are we to have a censor whose imprimatur shall say what books may be sold, and what we may buy? And who is thus to dogmatize religious opinions for our citizens? Whose foot is to be the measure to which ours are all to be cut or stretched? Is a priest to be our inquisitor, or shall a layman, simple as ourselves, set up his reason as the rule for what we are to read, and what we must believe? It is an insult to our citizens to question whether they are rational beings or not, and blasphemy against religion to suppose it cannot stand the test of truth and reason. If [this] book be false in its facts, disprove them; if false in its reasoning, refute it. But, for God's sake, let us freely hear both sides, if we choose." --Thomas Jefferson to N. G. Dufief, 1814. ME 14:127

"History, I believe, furnishes no example of a priest-ridden people maintaining a free civil government. This marks the lowest grade of ignorance of which their civil as well as religious leaders will always avail themselves for their own purposes." --Thomas Jefferson to Alexander von Humboldt, 1813. ME 14:21

"In every country and in every age, the priest has been hostile to liberty. He is always in alliance with the despot, abetting his abuses in return for protection to his own." --Thomas Jefferson to Horatio G. Spafford, 1814. ME 14:119

"I have been just reading the new constitution of Spain. One of its fundamental bases is expressed in these words: 'The Roman Catholic religion, the only true one, is, and always shall be, that of the Spanish nation. The government protects it by wise and just laws, and prohibits the exercise of any other whatever.' Now I wish this presented to those who question what [a bookseller] may sell or we may buy, with a request to strike out the words, 'Roman Catholic,' and to insert the denomination of their own religion. This would ascertain the code of dogmas which each wishes should domineer over the opinions of all others, and be taken, like the Spanish religion, under the 'protection of wise and just laws.' It would show to what they wish to reduce the liberty for which one generation has sacrificed life and happiness. It would present our boasted freedom of religion as a thing of theory only, and not of practice, as what would be a poor exchange for the theoretic thraldom, but practical freedom of Europe." --Thomas Jefferson to N. G. Dufief, 1814. ME 14:128

"To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical." --Thomas Jefferson: Bill for Religious Freedom, 1779. Papers 2:545


The Benefits of Religious Freedom
"The law for religious freedom... [has] put down the aristocracy of the clergy and restored to the citizen the freedom of the mind." --Thomas Jefferson to John Adams, 1813. ME 13:400

"[When] the [Virginia] bill for establishing religious freedom... was finally passed,... a singular proposition proved that its protection of opinion was meant to be universal. Where the preamble declares that coercion is a departure from the plan of the holy author of our religion, an amendment was proposed, by inserting the word "Jesus Christ," so that it should read "a departure from the plan of Jesus Christ, the holy author of our religion." The insertion was rejected by a great majority, in proof that they meant to comprehend within the mantle of its protection the Jew and the Gentile, the Christian and Mahometan, the Hindoo and infidel of every denomination." --Thomas Jefferson: Autobiography, 1821. ME 1:67

"No man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor... otherwise suffer on account of his religious opinions or belief... All men shall be free to profess and by argument to maintain their opinions in matters of religion, and... the same shall in no wise diminish, enlarge, or affect their civil capacities." --Thomas Jefferson: Statute for Religious Freedom, 1779. ME 2:302, Papers 2:546

"Our civil rights have no dependence upon our religious opinions more than our opinions in physics or geometry." --Thomas Jefferson: Statute for Religious Freedom, 1779. ME 2:301, Papers 2:545

"We have no right to prejudice another in his civil enjoyments because he is of another church." --Thomas Jefferson: Notes on Religion, 1776. Papers 1:546

"The proscribing any citizen as unworthy the public confidence by laying upon him an incapacity of being called to offices of trust and emolument unless he profess or renounce this or that religious opinion is depriving him injuriously of those privileges and advantages to which, in common with his fellow citizens, he has a natural right." --Thomas Jefferson: Statute for Religious Freedom, 1779. ME 2:301, Papers 2:546

"A recollection of our former vassalage in religion and civil government will unite the zeal of every heart, and the energy of every hand, to preserve that independence in both which, under the favor of Heaven, a disinterested devotion to the public cause first achieved, and a disinterested sacrifice of private interests will now maintain." --Thomas Jefferson to Baltimore Baptists, 1808. ME 16:318


Religious Illegality
"The declaration that religious faith shall be unpunished does not give immunity to criminal acts dictated by religious error." --Thomas Jefferson to James Madison, 1788. ME 7:98

"If a sect arises whose tenets would subvert morals, good sense has fair play and reasons and laughs it out of doors without suffering the State to be troubled with it." --Thomas Jefferson: Notes on Virginia Q.XVII, 1782. ME 2:224

"If anything pass in a religious meeting seditiously and contrary to the public peace, let it be punished in the same manner and no otherwise than as if it had happened in a fair or market." --Thomas Jefferson: Notes on Religion, 1776. Papers 1:548

"It is time enough for the rightful purposes of civil government, for its officers to interfere [in the propagation of religious teachings] when principles break out into overt acts against peace and good order." --Thomas Jefferson: Statute for Religious Freedom, 1779. ME 2:302, Papers 2:546

"Whatsoever is lawful in the Commonwealth or permitted to the subject in the ordinary way cannot be forbidden to him for religious uses; and whatsoever is prejudicial to the Commonwealth in their ordinary uses and, therefore, prohibited by the laws, ought not to be permitted to churches in their sacred rites. For instance, it is unlawful in the ordinary course of things or in a private house to murder a child; it should not be permitted any sect then to sacrifice children. It is ordinarily lawful (or temporarily lawful) to kill calves or lambs; they may, therefore, be religiously sacrificed. But if the good of the State required a temporary suspension of killing lambs, as during a siege, sacrifices of them may then be rightfully suspended also. This is the true extent of toleration." --Thomas Jefferson: Notes on Religion, 1776. Papers 1:547

[TVaughan]

I find it interesting that NO judge has foiund for keeping Terry alive after over 30 trials. Are they all corrupt idiots?

That is a good point. I read through some of the testimony given at those trials, and Michael, his brother and his sister in law were convincing, while Terri's mom was either lying through her teeth or very confused.