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I know it may seem a little bit belated at this point, but I wanted to call your attention to an opinion issued yesterday by Judge Stanley Birch of the 11th Circuit Court of Appeals. Judge Birch wrote a concurrence when his court denied the Schindlers' last-gasp appeal, presumably, as the noted Constitutional law scholar Erwin Chemerinsky observed, to go "on the record" about "Terri's Law" and Congress's behavior before it was too late. It's quite a scathing opinion (PDF):

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 ["Terri's Law"] 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. (Emphasis added.)


The separation of powers implicit in our constitutional design was created "to assure, as nearly as possible, that each branch of government would confine itself to its assigned responsibility." But when the fervor of political passions moves the Executive and the Legislative branches to act in ways inimical to basic constitutional principles, it is the duty of the judiciary to intervene. If sacrifices to the independence of the judiciary are permitted today, precedent is established for the constitutional transgressions of tomorrow. (Emphasis in original.)

He goes on to say that Congress could have passed a constitutional law - in other words, one which would not have tried to improperly dictate a specific legal result - but of course, the always over-reaching GOP just couldn't restrain itself.

Now that Theresa Schiao has passed away, I doubt that any of her so-called "supporters" are even going to waste much time bashing Judge Birch. But even if they try, they'll gain no traction. Birch is a very conservative appointee of Bush I - this is one of his best-known recent opinions. When a man like him takes the time to lay on some heavy criticism on this topic, you know it's serious.

But with this story now riding off into the sunset, the most important thing here is simply that Judge Birch put pen to paper and ensured that his opinion would become part of official caselaw for all time. The next time that Congress blatantly over-steps its constitutional authority as it did here, we'll have a powerful new arrow in our quiver, thanks to Judge Birch.

Update [2005-3-31 14:52:5 by DavidNYC]: I was writing this as Armando was posting DeLay's latest remarks below. So maybe Judge Birch now will be added to the loonies' enemies list, even at this late date. I hope he - and every other judge who ever got near this case - gets serious protection from federal marshalls for a good long while.

Originally posted to Daily Kos on Thu Mar 31, 2005 at 11:48 AM PST.

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Comment Preferences

  •  Your Honor, (none)
    You just put a bounty on your own head. and it's your old friends with their fingers on the triggers.

    I suspected that Terri's law was unconstitutional. nice to hear it from an expert.

    I do not pray that God is on my side. I pray that I am on God's side. - Abraham Lincoln

    by Desroko on Thu Mar 31, 2005 at 11:50:22 AM PST

  •  So, when's the DNC gonna issue . . . (none)
     . . . a Statement:

     Today Terri Schiavo passed away and today, Tom DeLay tried to make more political hay out of her passing.  Tom DeLay made thinly veiled threats to State and Federal Judges, and others, when he said:  

    "The time will come for the men responsible for this to answer for their behavior . . ."

      Was Tom DeLay threatening physical violence against government officials and private citizens, or merely trying to "play God" and condemn to hell all who disagree with him, which, by our last count, meant most of the U.S.A.

      We call upon Tom DeLay to stop trying to exploit a personal tragedy and act like man.


    Awaiting your calls, Chairman Dean, Senator Reid. Lines are open!

    by BenGoshi on Thu Mar 31, 2005 at 11:56:01 AM PST

    •  My guess (none)
      Knowing his perspective, DeLay probably meant Judgment Day.  I suspect he'll have a few things to answer for then, too.

      Announcing the return of Blast Off!, home of the "crazy woman" C-SPAN transcript! Long time no blog ...

      by Sinfonian on Thu Mar 31, 2005 at 12:09:22 PM PST

      [ Parent ]

    •  First part of Delay's statement (none)
      Yes, there's another thread devoted to the threats, whether he is referring to divine or human retribution.

      But he also said this, which is very relevant to this thread:

      Mrs. Schiavo's death is a moral poverty and a legal tragedy. This loss happened because our legal system did not protect the people who need protection most, and that will change.

      That's pretty clear. He is going to be fighting to remove this silly balance-of-powers Constitution thingy, that gets in the way of the divine right of Congress to rule unilaterally.

      I'm hoping we'll hear more conservatives come out in favor of the Constitution.

      Dream scenario: since the President swears an oath  of loyalty to the Constitution, can we impeach him when he acts against it?

      •  War on Justice, War on States (none)
        Since states are incapable of meting out justice in Tom Delay's world, should we expect him to recommend that states be abolished and that provinces (the French kind, not those radically independent Canadian kind)  take their place? Will he do a demonstration project with Texas, since it may be incapable of meting out justice?
    •  They should stay quiet (none)
      Just for today.  Whatever they say, every pundit will be trying to analyze it tonight when everyone turns on CNN, MSNBC etc.  I don't what the word "democrat" mentioned at all today.  

      PS Maybe right-wing judges aren't so bad.  Birch is a Bush I appointee very conservative.  No matter how conservative the judges are it does not mean they will blindly rule in their favor and be "activist judges"

      Its not easy being a Floridian.

      by lawstudent922 on Thu Mar 31, 2005 at 12:52:52 PM PST

      [ Parent ]

      •  Have you noticed (none)
        How every time a judge gets mentioned in an AP, CNN, or Reuters news story nowadays, it's required to mention who appointed him?  Have we become that partisan?  So that whoever reads the story will think, "Oh, he ruled that way because he was appointed by a Democrat," or "I bet the GOP is sorry he got appointed to the bench"?
        •  It is pretty rediculous (none)
          How everything is about taking sides.  It benefits the Republicans for there to be a "culture war"  I think one of the worst parts of the Schaivo fiasco was that for once the Liberals and Convervatives agreed.  I was able to discuss the issue with my arch conservative friends.  I felt really good being able to agree with them for once.  

          Perhaps hat is why all the right-wingers on talk radio and the cable news networks after that first week of red-state/blue-state unity had to come out and accuse Dems of cheering on her death.  They wanted to get a rise out of us and remind us how we hate the right--I know my feelings towards the right definitly softened for about a week, it was nice.  

          Its not easy being a Floridian.

          by lawstudent922 on Fri Apr 01, 2005 at 08:42:29 AM PST

          [ Parent ]

  •  Working off David's update (none)
    With all the threats and violence surrounding judges lately, has there been a concerted effort to increase their protection? Or is the Justice Dept too budy cracking down on porn?

    I do not pray that God is on my side. I pray that I am on God's side. - Abraham Lincoln

    by Desroko on Thu Mar 31, 2005 at 11:57:58 AM PST

  •  Bizarro World (none)
    In a reality where a lawyer is the least slimy talking head (Mr. Schiavo's) and a Reagan is the most liberal voice on TV, does it surprise anyone the conservative judges are the target of the wingnuts?

    Maybe they will lead the charge against Bush's appointees?

  •  I think the Time has come for Delay (none)
    I believe he has to be responsable for his behaviour at this point and realise his actions are not fiting of a Someone in Congress.  Judge Birch is a brave man that knew the dangers of going out of his way to make his statement.  He did what is right.
  •  What if today was Mar. 31, 2006? (none)
    What if all this happened one year from now? Would the nutters (Delay, congress at large, et al) have really rolled the dice the same way?

    I crept over to Redstate the other day and the one thing I saw some of the wingers who were uncomfortable with the whole Schiavo circus say was that, essentially, Americans have a short political attention span and by the time Summer 06 gets here, this whole thing will be largely forgotten and the moderates and constitutional conservatives will be back in lock-step.

  •  My only disappointment (none)
    in the SCOTUS's refusal to hear this case was that I would have liked to have heard such a scathing indictment of the Rethug's reprehensible behavior from that august body.

    And just one more thought related to this sad sorry saga:  My appreciation to Terri's husband for not playing the media game in this, unlike his inlaws.

    News is what powerful people don't want you to hear. Everything else is publicity.-Bill Moyers

    by jazzmaniac on Thu Mar 31, 2005 at 12:08:33 PM PST

  •  Chemerinsky (none)
    It's a good day when Chemerinsky comes to the same conclusion I did in matters of Con Law.  I said basically the same thing yesterday:

  •  Wing Nuts trapped in a Catch-22 (none)
    As federal judges reviewed the case under "Terri's Law", wingnuts complained that by finding against the Schindlers, the judges were ignoring the "clear intent of Congress" in the law.

    But if Congress "intended" for the judges to reach a specific conclusion, the law as patently unconstitutional.

    Has anyone whispered into Rahm's ear that Tom Delay is THE poster boy for Dems to run against next year?

  •  My concerns (none)
    First, that the statement "But with this story now riding off into the sunset" probably isn't going to be so accurate.  I rather doubt the fundies will let go of this one for some time.

    Second, the worry that Terri Schiavo will be more of a symbol in death than she ever was in life.  I saw the news of her death while waiting to pay for a round of golf this morning (hey, I'm on spring break), and I could already hear the "tut, tutting" from the others in the pro shop in my highly conservative area.  This is not going to go away as easily as we might like.

    Announcing the return of Blast Off!, home of the "crazy woman" C-SPAN transcript! Long time no blog ...

    by Sinfonian on Thu Mar 31, 2005 at 12:13:53 PM PST

    •  I' m glad (none)
      the Rev. Jesse Jackson got involved. It makes it harder for them to call this a conservative issue. When I first saw that he was siding with the parents I felt panicky. But then I thought more about it and realized that it will work against the wing-nuts. I wonder if Jesse's motives were somewhat sly. He is a highly intelligent man.
      •  The Talent Show (none)
        There was a post today over at The Talent Show discussing Jackson... he had an interview on CNN where he tied the whole thing into a call for conservatives to support medicaid, reject malpractice suit reforms, and basically be a little more consistent. Good stuff.
      •  asdf (none)
        I thought it interesting too that Gov. Bush said Jackson coming down was "kinda like Nixon going to China." I thought in that little morality play Nixon was the good guy going to convince the Chinese of the error of their ways. Has Jeb finally seen the light?
    •  I hear this place is restricted, Wang... (none) don't tell 'em you're Jewish, okay?

      Do you golf at Bushwood C.C.?

      "But then I viddied that thinking is for the gloopy ones and the oomny ones use, like, inspiration and what Bog sends." -- Alex de Large

      by rgilly on Thu Mar 31, 2005 at 01:21:17 PM PST

      [ Parent ]

      •  Good one (none)
        I tell ya, it's impossible not to quote Caddyshack when playing golf.

        For example, I was on one green today with a big putt coming, and I found myself cradling the putter, muttering, "Oh, Billy, Billy, Billy, Billy ..."

        Announcing the return of Blast Off!, home of the "crazy woman" C-SPAN transcript! Long time no blog ...

        by Sinfonian on Thu Mar 31, 2005 at 02:24:45 PM PST

        [ Parent ]

      •  Oh yeah (none)
        One other thing: the club that was "Bushwood" in the movie is called, I believe, Rolling Hills C.C. in Davie, Florida, about 10 miles from where I went to high school.  It was like a shrine to me ...

        Announcing the return of Blast Off!, home of the "crazy woman" C-SPAN transcript! Long time no blog ...

        by Sinfonian on Thu Mar 31, 2005 at 02:26:01 PM PST

        [ Parent ]

    •  The Pope ... (none)
      ... has been given last rites I now read. In line with your comment re: "the worry that Terri Schiavo will be more of a symbol in death than she ever was in life" can you just imagine the spin if the Pope and Terri died on the same day?
  •  Judges are under pressure now to lay down (none)
    for DeLay, the wingnuts and extremists, and Bush.  And most of these are conservatives!

    I'm sure the black-robed ones are wondering what the hell they've gotten into with Bush and his bunch.

    I wasn't at home when she died.  Since my return, I've been checking CNN (yecchhh!) and MSNBC's video news announcements of her death, since I still don't have cable (maybe that's great, in hindsight).  People are just going from stark raving mad to simply incredible.

    The courts are the only ones keeping us from total wingnut anarchy right now. This is just about the only place where facts can be investigated, sometimes without this emotion that tends to obscure the truth or in Schiavo's case, the right thing to do.

    One-fifth of the people are against everything all the time.--Bobby Kennedy

    by blksista on Thu Mar 31, 2005 at 12:17:35 PM PST

  •  We praised this opinion on our blog this am (link) (none)
    Nice post David.  My colleague Mike Surrusco from Common Cause commented about this opinion on Commonblogthis morning.

    As Mike said, Even if their motives were "sincere and altruistic," Bush and the GOP Congress again showed their troubling propensity to depart from their Constitutional roles. And, this is precisely what they are accusing federal judges of doing.  "Activist judges" is the moniker the Bush Administration and some members of Congress apply frequently to judges who hand down decisions they do not like.
  •  MSNBC Promotes Tom DeLay (none)
    Over the graphic reading, "Senators React to Terri Schiavo's Death," MSNBC showed DeLay making a statement. OK, a small mishap. That is until the graphic changed to read, "Sen Tom DeLay (R) TX."

    Not the end of the world, but doesn't bestow much confidence in the job the media does in general.

  •  Off topic, but... (4.00)
    What's with all the Terri Schiavo/Jesus Christ comparisons?

    Does that strike anyone else as a bitty creepy and inappropriate? I remember when Elian Gonzalez was also considered Christ-like back in 2000. Not only are Elian and Terri supposedly martyrs, but they are suddenly on the same level as Christ?

    Ridiculous. And even blasphemous, in my mind.

    •  The reason I wrote this (none)
      Was I just saw a picture on the NY Times front page of a Terri Schiavo right wing protestor mourning her death. Above this protestor was a picture of Terri right next to a picture of Jesus.

      As if allowing a brain dead woman to die is the same as crucifying a prophet.

    •  I was just wading through the stinking swamp (none)
      of FReeperland.  Every other post is filled with comparisons of Terri as Jesus and equating her death with the Holocaust.  It would be funny if these circumstances weren't so damn complicated and sad.  Some of those folks over there are offering moderate voices and being flamed by the wackjobs incessantly. The rule of law seems to be lost on the facist wing of the Christian Church.  I pray to God everyday that these lost sheep will find their way, but the maniacal Dale Gribble(King of the Hill) mentality seems to be nearly incurable.
  •  Why aren't Democrats grandstanding on this? (none)
    Same goes for our liberal talking heads and pundits...

    It's a simple meme...

    The Republicans are wishy-washy. Are they for big government or against big government? Which is it? Don't they know what they stand for...? Well, we Democrats know what we stand for: family privacy, the rule of law, individual freedom, etc.  Also, why don't the Republicans demonstrate the same concern for all of the children without health care in this country?

    Geez, is it so hard for our side to stand for something and to seize opportunities to make some hay? Granted, the "give 'em enough rope" strategy is working splendidly right now, but we need our own noise machine ready to go when the time comes!

    So, I made up my own slogan, and here it is: "slogans are stupid"

    by Dmitri in San Diego on Thu Mar 31, 2005 at 12:40:45 PM PST

    •  No (none)
      A human being has died.

      A family's private tragedy was made public, by one side.

      We absolutely should not "make hay" of this. There is a constitutional crisis coming, let us focus on THAT and make hay out of attacks on the foundations of our democracy. Not out of one story.

      Because this isn't just one story. The decision to withhold life support is made many times a day, including by Mr. Holier-than-thou DeLay who chose to withhold life support from his father. Let the other side try to come up with a coherent principle that somehow applies to Ms. Schiavo but not to Mr. DeLay. Meanwhile, we can stand for actual principle, stand with the mainstream of America on keeping government out of our most personal and private business.

  •  Does that qualify... (none)
    as a judicial slapdown yet?

    Or must I wait till it gets to the SUPREME COURT?


  •  The litmus test for Judges (4.00)
    is no longer liberal vs conservative, but independent judiciary advocates vs rubber stamp judges. That's what it's come to. With Greer making a sane decision for seperation of powers, those who want tyranny and mob rule have been flushed out from their 'conservative' cover.

    Darkness washed over the Dude...darker than a black steer's tookus on a moonlight prairie night...there was no bottom

    by moon in the house of moe on Thu Mar 31, 2005 at 12:41:20 PM PST

    •  That's right (4.00)
      is no longer liberal vs conservative, but independent judiciary advocates vs rubber stamp judges.

      What I predict is that no matter how many puppet judges the fringe right-wing thinks they can find, allegiance to the profession of law, that almost all of these judges have dedicated their lives to, will outweight the fanatical desires of the fringe.  Other than a very few judges like Clarance Thomas, most judges want a clear separation of power with judicial due process against a backdrop of constitutional law to be the manner that disputes get settled in America.  Any group trying to undue this precedent will be exposed even by their choice of judges.  Now when that happens, as has happened in the Schiavo fiasco, the fanatics are then put on trial with the stakes being constitutional government versus fanatical beliefs.  Once this is out in the open, just where do you think the majority of Americans will likely come down:

      Making America a theocracy with the right wing christian evangelists in charge?

      Keeping a constitutional democracy with clear separations of powers?

      Political censorship is the root of all evil! It is the antithesis to a functional democracy!!

      by truthbetold on Thu Mar 31, 2005 at 12:56:11 PM PST

      [ Parent ]

  •  FR reaction: "Black Robed Shylock" (none)
    FR reaction to this story can be found on this thread. sit back and watch them eat their own.....

    "Black Robed Shylock" [birch is jewish?!]

    "I'm glad this guy put his arrogance down in writing. He and Judge Greer can be the poster boys for the effort to hose out the judiciary."

    "I am trying, totally without success, to find an email address for Judge Birch"

    "Dear Mr. Birch: Your most recent opinion re: the Terri Schiavo case reminds me of a temper tantrum thrown by a spoiled, petulant child"

    "It is possible to be "conservative" and wrong" [o really]

    "Why is it that the worst justices (Harry "Kill 'em In the Womb" Blackmum; Anthony "Norwegian Law" Kennedy"; and this arrogant ass) are all nominated by Republican Presidents?"

    "This guy needs to be impeached"


    "This guys is Pharisee who will go to hell and burn for everlasting, if he doesn't repent"

    "Comment #35 Removed by Moderator" [from responses to this post, it must have been pro rule of law]

    "he went to Emory. As a Georgia Tech grad who was active in College Republicans, we considered Emory about as conservative as the trendy side of Boston" [this one is my favorite]

    "That's idiotic. You can't get the Declaration of Independence out of the Ten Commandments" Antonin Scalia, March 2, 2005.

    by jethropalerobber on Thu Mar 31, 2005 at 12:41:59 PM PST

  •  Judge Birch's campaign contributions (none)
    lest anyone argues Judge Stanley Birch is a liberal, point them to this:
  •  Finally, somebody has caught on. (none)
    Bush's Social Raiders have a four part agenda.  Get rid of Welfare, which puts a floor under wages.  Get rid of Social Security, which also puts a floor under wages (the elderly in this case). Get rid of judicial support for individual rights--i.e. intimidate the judges and vitiate the law.  Get rid of public education which leads people to think that they are entitled to fair wages for their labor.

    From their perspective, the "free market" is an automatic system where an "invisible hand" regulates human affairs, so there's no need for law and no accountability for the violation of social norms.

  •  I've been wondering... (none)
    As a lawyer, I was wondering how long it would take before the judiciary understands that it is not just liberal judges that they hate, it is all judges that rule against their agenda.

    If I were a federal judge, even one that is conservative leaning, I would be aghast at the complete lack of respect for the judicial branch (and, in fact, the rule of law) that the fundies and Tom DeLay (is there a difference?) have shown in this ordeal.

    ...And I would not be intimidated so much as determined to make sure the agenda is not promoted further in close call situations...

    Judges are targets now just as abortion doctors will be interesting to see if they continue to let it fester, or if they start getting serious about stopping the agenda in its tracks.


    by TexasDemocrat on Thu Mar 31, 2005 at 01:13:20 PM PST

  •  Not really all THAT 'scathing' an opinion... (none)
    Let's reserve words for situations where they really apply, OK?

    'Scathing' does not apply to this opinion.

    Sorry, but if, right at the outset, an opinion concedes, as this one does, the "sincere and altruistic motivation" of the congressional Republicans and Bush, it's not 'scathing.'

    In fact, it's out of touch with the mainstream.

    Most of the public believes, if polls are to be credited, that the behavior of the Congress and the President was 'politically motivated.'  The American people don't think that this law was 'sincere and altruistic.'

    I humbly suggest that public opinion of 'Terri's Law' is indeed 'scathing'.

    In contrast, Birch's opinion is relatively mild in its rebuke.

  •  Why does the republican congress... (none)
    ...hate the constitution so much?
      Demonstrators Outside Hospice Relieved at Not Having to Go Back to Work, Relocate to County Morgue


      "I'm here to fertilize the grassroots." - G. W. Bush

      by Hell Upside Down on Thu Mar 31, 2005 at 01:22:45 PM PST

      [ Parent ]

      •  Uh no (none)
        We're celebrating the "culture of life", not the "culture of brain".
      •  Am I the only one.... (none)
        who found this previous comment tasteless and unnecessary?
        •  No. (none)
          You're not.

          I do not pray that God is on my side. I pray that I am on God's side. - Abraham Lincoln

          by Desroko on Thu Mar 31, 2005 at 01:39:40 PM PST

          [ Parent ]

          •  Good! :-) (none)
            I'm admittedly a bit emotional about this situation at this point. I know that I would not want to be kept "alive" in such a situation. I agree with the court decisions in this case, as I would want my spouse to be the deciding vote if I were in the same situation. Nevertheless, I feel strongly for the parents and their seeming inability to cope with their daughter's death.

            I just don't see the advantage of abandoning human decency with snarky comments -- or of making up fake bizarre headlines when the real ones have been quite bizarre enough for my tastes.

          •  "tasteless and unnecessary"... (none)
   how the overall coverage and extreme-right reaction has been regarding this sad tale. My goal was to lampoon these goonheads rather than Terri's condition and death. Yeah, my post was kinda scratchy about the edges. No offense to the sensibilities of this community was intended. = )

            "I'm here to fertilize the grassroots." - G. W. Bush

            by Hell Upside Down on Thu Mar 31, 2005 at 01:46:48 PM PST

            [ Parent ]

            •  I figured as much! :-) (none)
              It's just that posts such as this one are the ones that get quoted in the media and on the freeper-type sites. That certainly doesn't do any of us any good.

              I'm about as sarcastic and biting a person as they come. I appreciate sarcasm as good humor. It gets me in trouble a lot.  :-)

  •  Hannity and his good, good buddy (none)
    Ollie North were discussing the judge's heinous crime today of upholding the constitution. Hannity said he's putting the [unbelievable] decision on his website for his freeper pals.
    •  Profanity Hannity & Friends (none)
      I gotta wonder if Fox News & CNN aren't further marginalizing themselves in terms of audience with the slant they seem to have taken in covering this story. It seems like people who were totally open to their pro-Bush agenda just might about now be starting to doubt the veracity of their overall coverage.

      "I'm here to fertilize the grassroots." - G. W. Bush

      by Hell Upside Down on Thu Mar 31, 2005 at 01:42:15 PM PST

      [ Parent ]

  •  3 strikes rule for attacks on the Constitution (none)
    Yeah, this is good news.

    What I love most: Judge Birch points out that the Senators violated their oaths of office in passing "Terri's Law" - and that he's objecting because he refuses to violate his own.  

    What recourse is there for their disregard for the Constitution?  How blatant does a violation have to be before it becomes legally actionable?  An impeachable offense?  While this is such a public matter, this is a great time to ask.

    In a sane Congress, any member who has premeditatedly violated the Constitutional separation of powers or checks and balances - especially an attempted power-grab - should be disqualified from running for re-election.  If that seems too severe, I'd be happy with a thoroughly enforced `3 strikes' rule.

    Note that this should be a nonpartisan rule, but it would damage Republicans most.  

    I'm actually serious - wouldn't it be fun to make every Senator and Congressman choose between voting for the rule, or speaking out against separation of powers, checks and balances, their own oaths of office, and the Constitution?

    For better or worse, one strike would immediately go against each of the 99 cowardly Senators who voted to attack the 9th Circuit Court's ruling in the Newdow case - when it ruled that it is plainly unconstitutional for teachers to coerce the children of atheists to say the U.S. is "under God" every day in public schools.  But they'd still have 2 strikes left.

    Any idiot who voted that flag burning or establishment clause legislation mustn't be subject to federal judicial review would also get a strike.  And so on...  That would help clear out most of the current Republicans fairly quickly, and many of the stupidest democrats.  

    To wit: if your thirst for power doesn't allow you to keep your oath of office, or acknowledge the `separation of powers' most Americans learn in junior high - someone competent should replace you in Congress at the earliest opportunity.  Any questions?

    •  How Could This Impeachment Process Be Started? (none)
      I am trying to figure out where this impeachment process would originate from.  I see basically no Democrats with the guts to take this on and even if they did how could they possibly get it to the floor?  Is this a challenge within the Judicial Branch?
  •  Alan Keyes was spouting some insane shite... (none)
    on BBC Radio today on this subject.  He was attempting to argue that because Terri Schiavo was allowed to die a constitutional crisis is now in operation.  

    Somehow he believes that this has undermined the founding fathers and claims that:

    "once you acknowledge that right (to die) you have actually provided a basis for the old argument that conquest can be the basis for legitimate government"

    I want some of whatever he's smoking, somehow it's allowing him to make the leap from euthanasia to conquest & invasion.

    •  Alan Keyes may have a point (none)
      I have been thinking for two weeks now about the odds on the possibility of a Constitutional crisis.  

      My lawyer father said of Congress "They can't impose on the Judiciary".  I said "That doesn't mean they won't try.  They already did didn't they?"

  •  asdf (none)
    The irony is that when you appoint strict conservative judges, you should EXPECT these kind of opinions.  If the judge was a "liberal" Clinton appointee, they might of had had a better chance.
  •  a martry.. ironic (none)
    You know, it's weird. All this time, the religious nutsoes and freepers have been using T.S. as a symbol (of life, morality, etc). Now that she's dead, she'll become a martyr to them, a reason for legal action-- and potentially more if they'd had their way about the National Guard. The ironic thing is that she's also a martyr for our cause(s): the preservation of the Constitution, law, and liberty (for a person to choose how and if he/she lives or dies). I'm sure there were some people who couldn't keep from thinking "T.S. has to die. The nutsoes can't win on this." Maybe it's just me, but it seems weird..
  •  This topic had a Diary yesterday that was Good (none)

    Comments and arguments in the thread was good.

    Also he have to point out that 8 of the 12 members of the 11th circuit are GOP appointees.

  •  Judicial Branch is at Risk (4.00)
    I have been saying since the Congress entered into that early Sunday morning pact with the devil that this case was seen by Conservatives as another opportunity to chip away at the judiciary.  Not just in the sense that the law that they passed was un-Consitutional, but because they saw an opportunity to use public opinion to say "see you can't trust the courts with anything".  I was surprized when the Federal Judege even took the case given my sense that he had no jurisdiction.  

    The role of the courts is to correct such grievous errors on the part of the Congressional branch.  At one time, most congressmen and senators were lawyers of varying skill.  If they weren't they had good legal counsel on staff.  They understood the concept of "upholding the law" because they bought into the notion of law as a total package not just on a case by case basis.  Since our system is based on precedent - in some cases writing itself as cases are tried and reviewed - there was an understanding that legislators had a duty to follow that precedent when writing their bills for fear that they would be overturned in the courts.

    The majority of people in the House and Senate today seem to have little regard for much less understanding of the law.  I would go so far to say that they are by-and-large their legislative insticnts are totally lawless. They don't care about precedent and are irritated by the idea that they would have any constraints on what they want to do.  Hence they have a keen interest in doing away with those pesky judges and lawyers who seem to understand and value the rule of law.  Led by DeLay the Conservatives are looking for any way possible to disassemble the judiciary - to undermine the credibility of the courts.  

    The Terri story is not over at all.  It has only just begun to heat up.  As we all know, martyrs are made after death and now the gates are open.  They are going to run with this one and they are going to use the poor woman as a battering ram at the courtroom doors.  Mark my words.

    •  yes - time to fight back (none)
      Yes, and that's my point in "3 strikes rule for attacks on the Constitution" above - it's anything but frivolous.  If we aren't proactive and willing to set the agenda now, it will be set for us.

      The beauty part is, if we do this now we also have more than 80% of the US - even the conservatives - clearly with us.  It's us, the judges, the Constitution, and the majority vs. the arrogant, out-of-control executive, legislative, and religious right.

      You're correct that the law has many of the answers.  For instance, is there really no opportunity of a penalty for violating your oath of office?

  •  An excellent resource article (none)
    was posted on Findlaw:

    One of the highlights:

    Federal judges hate this kind of symbolic, politicized legislating. Rightly so: These kind of laws force federal courts to strike down laws that are clearly unconstitutional but enjoy a passionate constituency - and thus to incur political costs for no reason.

    So we have the executive and legislative branches setting up the judiciary with the explicit goal of finding a reason to bring them down.

    I don't think this is what the Founders had in mind.

  •  It's amazing!! (none)
    In passing Terri's law, the Republicans hypocritically abandoned the ideals of federalism and separation of powers about which they have preached for years.

    Then, on the front page of dkos, a poster celebrates the opinion of a Scalia-like appellate Judge who points out the obvious constitutional problems with Terri's law.

    In fact, that poster cluelessly goes on to promise, "the next time that Congress blatantly over-steps its constitutional authority as it did here, we'll have a powerful new arrow in our quiver, thanks to Judge Birch."

    Fair enough...

    And the next time DavidNYC attempts to advance a pro-state's rights, pro-separation of powers argument without simultaneously admitting that for decades, left-leaning courts have "blatantly over-stepped their constitutional authority" in deciding cases like Roe v. Wade.... well, he'll have as much credibility as the hypocritical Republicans who voted for Terry's law.


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