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

[FReepaholic]

...The "Hanging Judge" was Isaac Parker at Fort Smith, Arkansas...

Oops! How embarassing. Thanks.

[TigersEye]

Looks like you said it first. ; )

[jwalsh07]

Birch is simply a prime example of judicial hubris. He was told in simple language by Congress, whose authority is plainly stated in Article 3, to assume jurisdiction. Because he doesn't think that his court should assume jurisdiction he throws a hissy fit and out pops this useless diatribe.

It is long past time that the judiciary is told in no uncertain terms that the USA does not have an aristocracy that answers to noone.

[Tench_Coxe]

You know, the dangerous part of these shenanigans is that what little deference the general public gives to 'the law' is being eroded by these jerks in black robes. One guy called into Limbaugh a few days ago, claiming to be a lawyer, and accused Rush of creating disrespect for the courts.

Rush later stated a version of what I was thinking, " You're doing it to yourselves, both scumbag lawyers and judges who think a black robe makes them a Master of the Universe ". Contempt of court??? The tyrants in black robes haven't seen anything if this continues.

[GeorgiaYankee]

This verse came to mind:

IICor 3:6 the letter (law) killeth, but the spirit giveth life

[bvw]

Yes -- one thing (among so many!) I find troubling in this case is that the Pinellas Police demanded a Judge's order to act when the State sent in DCF. Ignoring jurisdictional scope issues -- I know that in my own town, as in many, the police if they come to act as direct arms of the Judges -- which they already be seem to be doing, rather than as seperate executive entities under rule of elected officials -- we then have truly crossed in the Rule of Judges.

And look! Already the Judges claim and have successfully asserted the power to set taxes and demand revenues for for schools in many cases -- and for themselves, for their departments in other cases. Thus the precedent is set, the camel's neck is in the tent -- they can now demand their own police forces and taxes to support them.

[Regulator]

I always thought they waited until someone actually challenged the constitutionality. It appears to me that they only heard this last appeal for the express purpose of rebuking Congress and the President

I believe that that is indeed the case.

[djreece]

Well said.

[Heatseeker]

Already the Judges claim and have successfully asserted the power to set taxes and demand revenues for for schools in many cases -- and for themselves, for their departments in other cases. Thus the precedent is set, the camel's neck is in the tent -- they can now demand their own police forces and taxes to support them.

I agree. And when constitutional amendments are passed in states, the courts invalidate them as "unconstitutional". Since an amendment is ipso facto a change to the existing constitution, not a separate document of its own, this would seem to be absurd - yet there is no way to challenge it.

[Buckhead]

Judge Birch said:

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 standard of review of a motion for summary judgment is set by Rule 56, which is part of a Congressional enactment.

Can any body else think of another statutory standard of review?

[farmer18th]

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; .... the Act invades the province of the judiciary and violates the separation of powers principle.

Too lazy, in other words, to review the facts, and too undemocratic to admit his moral responsibility and too despotic to admit that he is aiding and abetting a murderer. May God open the fires of hell that await this sophist if he doesn't repent.

I bet this guy argues for his golf club membership rights with the same passion, God Damn him.

[Crackingham]

The standard of review of a motion for summary judgment is set by Rule 56, which is part of a Congressional enactment. Can any body else think of another statutory standard of review?

That doesn't address what Birch wrote. He's saying there is no Constitutional authority for Congress to set standards by statute. Your citation of another statutory law does not answer that challenge.

[UnbelievingScumOnTheOtherSide]

What Buckhead is saying is that if there is a rule established by Congress that has been routinely applied by the federal courts, then this supposedly "conservative" judge goes beyond what other courts assert is their sole authority and is spouting nonsense.

[Buckhead]

If there is no constitutional authority for Congress to set standards of review by statute then Rule 56 is unconstitutional. But it's not. Congress obviously does have that authority.

[LadyPilgrim]

Arrogant....YES!!!.....

and they protect their own.

[UnbelievingScumOnTheOtherSide]

If there is no constitutional authority for Congress to set standards of review by statute then Rule 56 is unconstitutional. But it's not.

You mean --> Not yet.

[bvw]

Call this a vanity repost, but I ran this post through both grammar and spelling checkers which corrected some gruesome misspellings and then into that Gender Genie which scores a piece of writing as of male or female authorship (http://www.bookblog.net/gender/genie.php). It was, like the author, "Male!".

Dear Judge Birch -- the bricks are never more important than the builders -- as the ancient Egyptians and the residents of Babel both learned to their unredeemable dismay. Egypt ground the bones of children into mortar for brickwork, in building the tower those in Babel threw the slow workers off to their death for being in the way, or for being injured. In both cases the pride in the bricks caused the builders to lose sight of why bricks have any reason to be in the first place.

Both magnificent and great civilizations are gone. Destroyed, dead and dust.

Your prideful reasoning, Judge Birch, makes more of the bricks of law than of the people for whose life, liberty and peace the law is established. It is deadly reasoning, Birch, and murderous -- for an innocent young woman lies murdered by such prideful folly.

What shall we make of such a ruling? Of you, Your Honor? With it you become the enemy of our safety, of our lives, and of peace. In attempt to preserve an awfully great and shrewd pride in the law you have shattered it totally -- and the shards are dangerous to all.

What are we left with? Where do we find Justice and Peace now?

Babel's Tower represented a height of human self-pride in ability, the prototypical Randian Man. The Egyptian state prior to the Exodus represented oppressive -- yet libertine sexually -- order via Death cultism.

[Raycpa]

the time has come for dispassionate discharge of duty.

In short, were just following orders.

[Raycpa]

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.

What is most disturbing to me is we have established a system that cannot protect an innocent helpless person from death. As good as our governing system is, it is deeply flawed if it ends up straving and dehdyrating Terri Shiavo.

Maybe we cannot create a government without major flaws until Christ returns, but I want to keep trying.

[Raycpa]

If being a "true conservative" involves starving innocent people to death, screw it.Amen.