Posted on 03/26/2005 11:56:14 AM PST by UnbelievingScumOnTheOtherSide
One more reason in a long history that judicial appointments will not solve the problem of leftist judges and judicial tyranny was seen on Mar. 23, 2005, in the request for emergency rehearing of the 11th Circuit en banc of the case of Schiavo v. Schiavo when George W. Bush recess appointment William H. Pryor, Jr., voted AGAINST rehearing. Rather than joining in the cogent and spirited dissent of Judge Tjoflat or associating himself with the dissent of Judge Wilson (a Clinton appointee) in the original three-judge panel, he voted with the majority in the 10-2 denial of rehearing. Judge Pryor did so without any comment to give any insight into his reasoning for doing so. But it is sure to win a brownie point or two from some Democrats who had blocked his regular appointment to the court with a threatened fillibuster - not. It is interesting to note that although the denial of rehearing was 10-2, Republican appointees actually hold a 7-5 majority on the 11th Circuit. But six Republicans voted with four Democrats to starve an innocent woman to death on the say-so of her estranged husband rather than finding one of several legal avenues placed in evidence and the law to reach a more humane and just result.
The history of Republican appointees to the Supreme Court (SCOTUS) is likewise checkered. While Nixon appointee William Rehnquist has been a stalwart conservative for 33 years, another Nixon appointee, Harry Blackmun wrote the infamous Roe v. Wade abortion opinion for the majority. And Blackmun, along with fellow Nixon and Ford appointees Louis Powell and John Paul Stevens cemented an activist leftist court through the 1970s and 1980s. Appointees by Republicans, thought conservative, as often as not become part of the activist-leftist problem upon receiving their lifetime appointments.
While Nixon and Ford had to contend with a strongly Democrat Senate to get their appointments confirmed, Reagan enjoyed for a time a Republican Senate. Although Reagan was both a social and fiscal (in theory) conservative, his appointments to SCOTUS were one conservative, Scalia, and two increasingly liberal swing votes, O'Connor and Kennedy. George H.W. Bush achieved a similar split with conservative Thomas, who squeaked in by a narrow confirmation margin in the days before filibustering of appellate judges, and liberal David Souter. It is interesting to note that the last Democrat "mistake" to SCOTUS was the Kennedy appointment of conservative Byron White in 1962.
It is hardly going to make a positive difference in the courts for conservatives when leftist presidents and Democrat Senators apply a nearly foolproof litmus test while Republican presidents tend to appoint "qualified" judges, half from each side. The math over the last 28 years of four Republican presidential terms and three Democrat, with a nearly even divide in the Senate over that time, is for 70% leftist appointees. At that rate, if there were nothing but Republican presidents for the next 40 years, the courts would be no better than evenly divided.
The solution to the problem of runaway activist leftist courts is for Republican executives to assert their independence from judicial fiat. (You could argue that Democrat presidents could do the same, except they don't need to. - They already have the courts for the forseeable future.) Federalist #78 explains that judges are "dependent" on executives to carry out their decisions. In 1832 in the case of Worcester v. Georgia recognizing the independence of the Cherokee Nation from the laws of Georgia, Andrew Jackson disregarded the Supreme Court with the famous remark "Marshall has made his decision. Now let him enforce it." leading a few year later to the removal of the Cherokee altogether. Even in the case of Marbury v. Madison, Chief Justice Marshall explicitly recognized that he could not order President Jefferson to deliver certain commissions without being ignored due to separation of powers and thus invalidated the law requiring the delivery of those commissions instead.
What happened since those early days to separation of powers? We became accustomed to the routine condition that the executive should normally support the judiciary. Even when activist judges handed down abominable decisions such as Dred Scot in 1857, which forced slavery on the whole country, the executives after the the passing of the Founding Fathers enforced them. Of course, the President at the time of Dred Scot was a pro-slavery northern Democrat, James Buchanan, who was not going to nullify Dred Scot anyway.
The only serious way to turn back judicial activism is through the executive nullification of the most odious of judicial rulings, such as starving an innocent woman to death on dubious evidence and calling it a Constitutional Right. Judge Pryor, when he comes up for confirmation to a permanent post on the court, needs to do some serious dancing around the issue of why he did not at least make a public showing to help the dying Terri Schiavo and should quite probably be denied the support of conservatives previously so eager to see him confirmed. And conservatives need to consider ways besides judicial appointments, or the forlorn hope for impeachments in a Congress too narrowly divided and partisan to sustain them, to reign in the tyranny of our current Judicial Oligopoly.
You took the time to write a long rant, without taking the time familiarize yourself with the basic facts.
When a Federal Circuit Court denies an en banc hearing (and when the Supreme Court denies cert) - unlike in an opinion when a Circuit Court panel or the Supreme Court actually hears a case - there is no publically released tally of votes. All we know is that the majority - here, at least 7 of the 12 judges sitting on the 11th circuit - voted against denial.
It is not required or even typical that those judges or justices who favored hearing the case to write or join a written dissent from the denial of an en banc hearing or denial of cert; it is entirely discretionary. Here, 2 11th circuit judges wrote or joined a written dissent. Thus, all we can assme is that vote denying an en banc hearing was somewhere between 10-2 and 7-5. But we do not know which way Pryor voted, from the fact that he didn't write or join a written dissent.
Now you might want to slam Pryor for not auuthoring or joining a written dissent, but that's another matter.
I expected better from him.
If the vote was 7-5, and Pryor voted for re-hearing, then what more did you expect from him?
Whoops.
"Voted against denial" at the end of the 2nd paragraph should be "voted for denial."
What the law just passed by Congress did was authorize a federal court to go back to square one and examine the actual merits of the Terri Schiavo case, not simply review whether the previous judge behaved illegally. Congress authorized the federal courts to retry this case from scratch -- "de novo" as the legislation says in legal terminology.
That is precisely what the federal courts have refused to do. There is no way that federal District Judge James Whittemore could have examined this complex case, with its contending legal arguments and conflicting experts, from scratch in a couple of days, even if he had worked around the clock without eating or sleeping.
Judge Whittemore ignored the clear meaning of the law passed by Congress and rubberstamped the decision to remove Terri Schiavo's feeding tube.
Nor could the judges on the Court of Appeals have gone through all of this material "de novo" in a couple of days after Judge Whittemore's decision. They have added to the number of judges that liberals can count but they have not followed the law -- which is what really counts.
The federal judges have rushed to judgment -- in a case where there was no rush legally, despite a medical urgency. Terri Schiavo was not dying from anything other than a lack of food and water. These federal judges could have ordered the feeding tube restored while they gave this issue the thorough examination authorized -- and indeed prescribed -- by the recent Congressional legislation.
Sounds like there's definitely a case for tossing out a few judges here. Of course, if something were going to be done about this, it would have already happened. Why are Bush and Congress not raising a stink over the judges not re-trying the case 'de novo?'
Don't know what some of us would do on here without you, Dog Gone, Torie, and others that know the law. Thank you for posting the facts.
It is like some of these vanities are being slanted with the purpose of getting people riled up and it is wrong.
I do not want activists judges.
Your first mistake was expecting justice. What we have is a legal industry by, of, and for the benefit of the elite lawyer class and those with the assets to buy it.
Whittaker Chambers called it the world's second oldest religion: "Ye shall be as gods." That temptation in the Garden has manifested itself in many forms over the centuries. Currently it's hanging out in a courtroom in Florida and similar places.
I've been on the bench. I know what it's like to be all-powerful. Every decision I rendered was with the sure knowledge that there was very little likelihood of being overturned on appeal, or even of an appeal being taken. Part of my training as a Family Court Judge came from Judge Judy. Several of us spent an afternoon with her in New York County Family Court and learned the importance of including certain phrases in our decisions: "This Court has had the unique opportunity to examine the credibility and demeanor of the witnesses in this case." That was a good one. What Appellate Court could overturn you on factual issues with language like that? The prevailing party has always "met the statutory standard of proof." From other judges I learned to dismiss strong opposing arguments by writing, "The mere fact that . . .", etc.
And so it is that Judge Greer can make life and death decisions based on conflicting testimony, and never be overturned. He, after all, had the unique opportunity to examine the credibility and demeanor of the witnesses. The mere fact that Michael Schiavo never mentioned his wife's wishes for seven years, and that no one else ever remembered them until after her court-appointed law guardian suggested Michael might not be credible, has no bearing on the decision. All a judge need do is reject the credibility of people he doesn't want to believe and accept the testimony of people he does, and then fill his decision with language from statutes and case law which support his result, and that is that! It's very easy. And it actually is "due process of law."
Once in a while a case like this comes along when very reasonable people can ask, "What judge in his right mind could find clear and convincing evidence of Terri's physical state or her intention to die based on this conflicting testimony?" But absent wrong-doing, the trier of fact will receive great deference from the courts above and the courts beside.
That's the way the system works. I HOPE everyone understands that now.
And yet, one need not have years of legal training and judicial experience to suspect that something is really wrong with a system that not only allows but even DEMANDS that an innocent disabled woman be starved to death.
No, a court order is law. Legislatures pass laws. Courts apply laws to cases. Both actions ARE the law. The law has no way of functioning without the actions of both. Both are absolutely necessary in our Constitutional system in order for the rule of law to exist. Those of us who support strong judicial restraint and court rulings of a narrow and limited scope must still admit that those restrained judicial rulings are still necessary in order for the law to function properly. In an ideal world, all three branches of governments serve crucial roles that insure the rule of law. The law cannot work without courts because we need them to make the law binding to specific parties. Taking that action to make a statute binding IS LAW. If you violate it you can suffer specific, identifiable and known legal consequences. THAT'S LAW.
You're right that a court order is law, much as a generally applicable law passed by the legislature is law, but I would argue that there's at least one important case in which this simple but correct analysis is inapplicable: When the court order clashes with the actions of a co-equal branch of the government. In this case, we have what is known as a "constitutional crisis," or at least a constitutional clash, because the 2 braches can each claim the authority of law.
In such a case, the Judiciary does not have superior authority to tell the Executive not to act; and when the Executive does act against a court order, it is answerable only to the people, via devices such as elections or impeachment.
For example, imiagine that a Federal court enjoined the Executive against taking actions that the Executive deemed necessary to protect us against terrorists. The
Executive has a fundamental and independednt grant of authority in the US constitution to take actions related to national security, and those actions cannot be deemed illigal simply because they are contrary to a court order. If the people get mas about it they can impeach President Bush.
In Florida, the Florida Constitution gives the State - and Jeb Bush as head of the Executive branch - the power to take law enforcement action to protect its citizen from getting killed. If a judge like Greer enjoins the state of Florida - acting under the authority of the Florida Constitution and of more specific statutes granting that authority to Department of Protective Services - from protecting a woman from getting killed, then it is not illegal for Jeb Bush send state law enforcement to save Terri even when such action is contrary to the judge's order. It would be a political clash, and the people of the state of Florida would have to decide what to do about it.
So you would rather have more liberal judges? Absolutely insane!!!!!!!
Please get your facts straight:
Legislatures pass laws.
A court order is a judgement.
Taking that action to make a statute binding is enforcement.
They are three entirely different functions.
A judgement without law is not legal.
Enforcement without law and judgement has no legality or justice.
A judgement without law has no entitlement to enforcement.
A judgement without enforcement has no effect.
And then there are laws that are never or generally not enforced, like jurisdictions where you are supposed to have someone walk in front of your car ringing a cowbell or U.S. immigration laws. But they can make sure someone starves to death.
People like this poster post this garbage because they are the instruments of Greer, Felos, and Michael Schiavo. They've joined with that trio of death in an unholy alliance to use the imminent death of Terri to promote their agenda - a hatred of Bush. I call them pathetic cowards and tools of the merchants of death.
Great post. An add that it's clear that the Florida judiciary is clearly not a fan of Jeb Bush and you've connected all the dots. It's a shame that Jeb's dominance of the legislature and the executive branch in his two terms hasn't really put a dent in the power of the judicial branch of Florida.
But other than that it was a good piece.
In Florida, the Florida Constitution gives the State - and Jeb Bush as head of the Executive branch - the power to take law enforcement action to protect its citizen from getting killed. If a judge like Greer enjoins the state of Florida - acting under the authority of the Florida Constitution and of more specific statutes granting that authority to Department of Protective Services - from protecting a woman from getting killed, then it is not illegal for Jeb Bush send state law enforcement to save Terri even when such action is contrary to the judge's order. It would be a political clash, and the people of the state of Florida would have to decide what to do about it.
You make far too much sense to be posting on this forum.
It's Schindler v Schiavo. He's not suing himself.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.