Judge Assails Schiavo Law
By ELAINE SILVESTRINI
[email protected]
Published: Apr 1, 2005
TAMPA - A federal appeals court judge strongly criticized Congress and President Bush on Wednesday, accusing them of overstepping their authority when they enacted an extraordinary law putting the fate of Terri Schiavo into the federal courts.
``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,'' wrote Stanley F. Birch Jr., a judge on the 11th U.S. Circuit Court of Appeals in Atlanta. His opinion accompanied a ruling by the full court refusing to hear an appeal by Schiavo's parents, who want her feeding tube reinserted.
The court opinion crystalized the clash between branches of federal government that has emerged in the Schiavo case, underscoring the barrier the judiciary has refused to allow Congress to breach.
Judges ``must conscientiously guard the independence of our judiciary and safeguard the Constitution, even in the face of the unfathomable human tragedy that has befallen Mrs. Schiavo and her family and the recent events related to her plight which have troubled the consciences of many,'' Birch added.
Supreme Court Won't Hear Case
The Schindlers quickly appealed the appeals court ruling to the U.S. Supreme Court, which declined for the sixth time to intervene in the case late Wednesday. Justices did not explain their decision.
David Gibbs III, an attorney for the Schindlers, said the justices rejected ``what appears to be the last meaningful appeal'' he will file. He said he has no other legal actions on the table.
Gibbs learned of the ruling after visiting Terri Schiavo on Wednesday night. He said she was breathing a little more rapidly, but, ``She is demonstrating an amazing sparkle and desire to live.''
Schiavo has been in what many doctors have called a persistent vegetative state for 15 years. Her husband, Michael, successfully petitioned a state court to remove her feeding tube on the grounds that she would not have wanted to live that way. Her parents, who contend their daughter would not want to starve to death, have fought Michael Schiavo for seven years and have repeatedly lost in the courts.
Moved by the Schindlers' plight, Congress passed a law in the early morning hours of March 21, putting the case into the federal courts.
As Birch saw it, however, the law went too far by telling federal judges how they should go about deciding the case. Birch's strongly worded statements came in a concurring opinion that accompanied a ruling by the full, Atlanta- based appeals court. The court refused to hear the Schindlers' latest appeal under the new law.
The couple had asked the full court to hear their plea after a three-judge panel turned them away Friday. The activity marked the parties' second trek through the federal courts since the Schiavo law was passed.
In electing not to take the case en banc or by the full court, the 11th U.S. Circuit did not rule on its merits and did not overturn the new law. However, because the law addressed the Schiavo case specifically, it will become moot if Terri Schiavo dies.
Birch wrote, ``While the members of [the Schindler] family and the members of Congress have acted in a way that is both fervent and sincere, the time has come for dispassionate discharge of duty.''
Birch, who was appointed to the bench in 1990 by the former President Bush, suggested hubris on the part of Congress, accusing it of ``arrogating vital judicial functions to itself.''
Birch's actions surprised Richard Freer, a law professor at Emory University in Atlanta.
``I think it's unusual to have a concurring opinion from a denial of rehearing on en banc,'' said Freer, who has known Birch for about 12 years. ``Obviously, that means he feels very strongly about it and that that needed to be said.''
Freer said the public tends to react to the bottom line of court decisions, seeing them as either ``for Terri or against Terri.'' But he said it's important to be clear that judges have to be concerned with the Constitution.
Birch began his Schiavo opinion by observing that judges are often denounced by the public and members of Congress for being ``activist,'' accused of deciding cases based on personal feelings rather than the requirements of the law.
But in the Schiavo case, he said, it was members of Congress who disregarded the Constitution because of their personal beliefs. Parts of the Schiavo law, Birch wrote, violated ``the fundamental principles of separation of powers enshrined in our Constitution.''
Two 11th U.S. Circuit judges disagreed with Birch. Judge Gerald B. Tjoflat filed a dissenting opinion, which was joined by Judge Charles Wilson, who sits in Tampa.
Extended Deadline Raised Hopes
The Schiavo case seesawed through the federal appeals court Wednesday. The day began with what appeared to be a glint of hope for the Schindlers when the full appeals court issued a seemingly positive ruling allowing the couple to request the en banc hearing. But the ruling amounted merely to a relaxation of a deadline to file paperwork.
When the three-judge panel ruled against the Schindlers on Friday, it gave them until Saturday to request a full-court hearing. Gibbs said over the weekend that the couple would mount no more federal appeals, and so they let the deadline pass.
But the Schindlers changed strategies late Tuesday, filing a motion at 11 p.m. asking for permission to file a late petition with the full court. The court granted permission to file, but later ruled against granting a hearing.
Gibbs said he changed his mind after receiving thousands of faxes and e-mails during the weekend, some offering suggestions on how to argue the appeal.
The appeals centered on a ruling last week by U.S. District Judge James D. Whittemore in Tampa, who refused to order the reinsertion of Schiavo's feeding tube. In his ruling, Whittemore said the Schindlers had failed to demonstrate that they would probably be able to prove that Schiavo's rights had been violated.
Information from The Associated Press was used in this report. Reporters David Sommer and Anthony McCartney and researcher Michael Messano contributed to this report.
Keyword: Schiavo, to read the 11th U.S. Circuit Court's ruling and get today's developments.
