April 1, 2005
Courage and Judicial Activitsm
This is Judge Stanley Birch's stirring separate opinion in the decision of the U.S. Court of Appeals for the 11th Circuit (Atlanta) to reject the appeal of Terry Schiavo's parents under the special statute Congress passed last Monday giving federal courts jurisdiction over that single case.
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. Since I have sworn, as have they, to uphold and defend that Covenant, I must respectfully concur in the denial of the request for rehearing en banc. I conclude that Pub. L.109-3 (“the Act”) is unconstitutional and, therefore, this court and the district court are without jurisdiction in this case under that special Act and should refuse to exercise any jurisdiction that we may otherwise have in this case.
And if you think this comes from a liberal jurist, you're way wrong. Birch is from rural Georgia, was an Army lieutenant in Viet Nam from 1970-72 and was nominated to the federal bench by by George H.W. Bush on March 22, 1990. That's a conservative bio if I ever heard one. And as Ed Brayton from Dispatches from the Culture Wars cogently points out--
We need more judges like Stanley Birch, judges who have the courage to tell it like it is and not base decisions on political expediency.
Posted by glenn
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