Conservative Federal Judge Blasts Congress Over "Terri's Law"

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.