SCHIAVO v. SCHIAVO - "Conservative" Judge Birch Proclaims JUDICIAL OLIGARCHY (full opinion)

11th Circuit Court of Appeals Opinions ^ | 2005-03-30 | 11th Circuit Court of Appeals

[UnbelievingScumOnTheOtherSide]

The full text with footnotes of the denial of the Schindler family's last appeal to the 11th Circuit Court of Appeals on behalf of their daughter, Terri Shindler Schiavo, in which Judge Birch wrote a completely in-your-face concurrence blowing off the other branches of government. Judge Birch, regarded as an extremely conservative George H. W. Bush appointee who previously ruled that Florida could ban gay adoptions and that Alabama could ban sex toys, proceeded to demonstrate that his main interest is in maintaining the power of the judiciary to usurp the legislative power of Congress and to use the executive police power as it will to enforce its fiat decisions.

Judge Birch fails to appreciate when he states, "An act of Congress violates separation of powers if it requires federal courts to exercise their Article III power “in a manner repugnant to the text, structure, and traditions of Article III." that that necessarily implies that Congress and the President are likewise not bound by decisions of the courts that conflict or usurp their Article I and II powers or are repugnant to the plain language of other parts of the Constitution they are sworn to uphold and enforce. It is more evidence that judicial appointments of the "right temperament" will not curb the excesses of the courts as the position of all-powerful judge seems to corrupt absolutely in the absence of will and true independent action of the other supposedly separate and equal branches.

[Notwithstanding]

Activism, pure and putrid. Judicial oligarchy, indeed.

[kingattax]

thanks for posting this......sean hannity mentioned it on his radio show a little while ago.

Judicial arrogance at its finest. This is what we are up against boys and girls

[Diogenesis]

Pinellas county, Florida subhuman murderer Judgenfuhrer Greer:
"We, the Scumbag Nazi Judges of Florida RULE.
You may grief for 3 days the lost of 'three equal branches'.
Then, you will serve us. Listen closely, slave.
Tonight begins Holocaust Remembrance Month with our "Perfect Murder".
Never forget that we Judgenfuhrers in Florida --who let you live at our convenience--
celebrate Holocaust Remembrance Month with our worldwide public
2 week starvation-execution of a young handicapped woman.
Now that we Judges have made end of America's honor in the eyes of the World
you have no more hope. So you WILL serve us,
and then quietly and meekly die after we have enough of your money
or are in sudden need your organs for ourselves or the PRC."

[The Ghost of FReepers Past]

BTTT!

[FReepaholic]

JUDGE ROY BEAN "THE HANGING JUDGE"

JUDGE GEORGE GREER "THE STARVING JUDGE"

[tomahawk]

Birch should be removed from the bench.

[Diogenesis]

Bean hung criminals.

Greer (and his Florida Judges) exterminate the innocent.

[UnbelievingScumOnTheOtherSide]

Actually "Judge" Bean was known as "The Law West of the Pecos"
and was not officially a judge at all.

The "Hanging Judge" was Isaac Parker at Fort Smith, Arkansas,
with jurisdiction over Arkansas, Texas and the Indian Territory (Oklahoma)

[LauraleeBraswell]

Absolute power corrupts absolutely

[Diogenesis]

Only on FR will the truth always come out. Thank you.

[Crackingham]

Some people around here are letting their anger at this terrible Schiavo tragedy blind them to the plain and obvious facts, that Congress violated the Constitution with the law they passed intending to save her. It's really a shame that they didn't take the time to make sure they were passing a law that could be legitimately upheld. What happened to Terri was horrible but that doesn't change the fact that the law Congress tried to use to save her was 100% unconstitutional. To quote from Judge Birch...

If the Act only provided for jurisdiction consistent with Article III, the Act would not be in violation of the principles of separation of powers. The Act, however, goes further. Section 2 of the Act provides that the district court: (1) shall engage in “de novo” review of Mrs. Schiavo’s constitutional and federal claims; (2) shall not consider whether these claims were previously “raised, considered, or decided in State court proceedings”; (3) shall not engage in “abstention in favor of State court proceedings”; and (4) shall not decide the case on the basis of “whether remedies available in the State courts have been exhausted.” Because these provisions constitute legislative dictation of how a federal court should exercise its judicial functions (known as a “rule of decision”), the Act invades the province of the judiciary and violates the separation of powers principle.

An act of Congress violates separation of powers if it requires federal courts to exercise their Article III power “in a manner repugnant to the text, structure, and traditions of Article III.” By setting a particular standard of review in the district court, Section 2 of the Act purports to direct a federal court in an area traditionally left to the federal court to decide. In fact, the establishment of a standard of review often dictates the rule of decision in a case, which is beyond Congress’s constitutional power.

The Constitution only gives Congress the power to change federal court jurisdiction. It does NOT give them the power to tell the court how to conduct a trial. That's what Congress did wrong here. The law tried to tell the court how to do its business. That's a blatant violation of separation of powers.

Birch is absolutely right. True conservatives need to recognize that you can be motivated by good intentions but still screw it up and violate the Constitution. Congress screwed up. Their heart was in the right place but their attempt to save her was pure incompetence. They should've done what it took to make sure they would not violate the Constitution. Because they didn't take the time to do it right, Terri paid the price.

[shrinkermd]

This may be off topic, but IMHO the key to this is Attorney Felos. I just heard him again. Limbaugh describes him as creepy, but he seems to have a mission and a cause. I wonder if anyone has read his 2002 book or knows of his spiritual leanings. He has an uncanny resemblance in his speech and reasoning to some of a "scientific" religious creed.

[concerned about politics]

[Diogenesis]

Subhuman Pinellas County Florida Judgenfuhrer Greer:
"Attorney Felos speaks with our Judicial god who instructed him,
"You are more powerful than you realize.(*)
Imagine that. I get to to murder WHILE serving our god at the same time,
all with a stroke of my pen and flash of my cool black-Mullah robe."

(*) pg 182, George Felos's book, "Litigation as Spiritual Practice" (Blue Dolphin Publishing, 2002)

[Regulator]

It does NOT give them the power to tell the court how to conduct a trial

Bunk. That's exactly what the rules of procedure do. Who do you think mandates them? Federal Rules of Procedure

The judge's little political diatribe came at the expense of a woman's life, and his position is nonsense.

[djreece]

Marking for later.

[Brilliant]

This is clearly judicial activism. They did not need to reach the Constitutional question at all. The district court had already denied the injunction. All they had to do is rule that the parents hand not shown enough to reverse that order.

[housewife101]

Congress's law put this case in the jurisdiction of the courts, this is allowed under the constitution. Nothing in the bill said HOW they would HAVE to do this case. Which is obvious by the fact that it was not tried AT ALL.