Activist Judges Grinding Their Agenda
Judge Stanley F. Birch Jr. is one of the most conservative judges on the federal bench. He was appointed by George H.W. Bush and recently made himself really, really popular with the wingers by writing opinions upholding Alabama’s right to ban sex toys and Florida’s ability to prohibit adoptions by gay couples. He’s been described as falling “pretty squarely in the Scalia/Thomas camp.”
Why do I care?
‘Cos when the 11th Circuit Court of Appeals on Wednesday decided to deny a rehearing to Terri Schiavo’s parents, he took a moment to blast GWB right between those beady little coke-head eyes:
A popular epithet directed by some members of society, including some members of Congress, toward the judiciary involves the denunciation of â€œactivist judges.â€ Generally, the definition of an â€œactivist judgeâ€ is one who decides the outcome of a controversy before him according to personal conviction, even one sincerely held, as opposed to the dictates of the law as constrained by legal precedent and, ultimately, our Constitution. 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 Fathersâ€™ blueprint for the governance of a free people â€” 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 Pub. L.109-3 (â€œthe Actâ€) is unconstitutional and, therefore, this court and the district court are without jurisdiction in this case under that 1 special Act and should refuse to exercise any jurisdiction that we may otherwise have in this case.
All the claptrap about “sincere and altruistic motivation” aside (that’s some CYA if ever I’ve seen it), he basically took the trouble to write a concurring opinion just for the purpose of saying that whole middle-of-the-night hootenanny was unconstitutional. Yes, even the winger judges have finally had a noseful of Congressional attempts to limit the role of the judiciary, and even they now see that in the Schiavo case they are clearly being set up by the right in an attempt to erode the checks and balances they provide for the executive and legislative branches of government.
Funny enough, White House spokeswoman Dana Perino declined to address the Birch decision. But tomorrow, I fully expect to wake up to find that all of those talking heads who have been blathering endlessly about how all of the judges who have now heard this case are culture-of-death-mongering-liberals ARE TAKING IT ALL BACK.
Naw — just kidding.
FUN FACT – Fred Vincy over at Stone Court points out that Pub. L 109-3 means that almost three months into the 109th Congress, which also sports an increased Republican majority, Congress has now passed a grand total of three acts — tsunami relief, class action “fairness,” and Schiavo. If anyone else had that kind of productivity it’d be raining pink slips from heaven.