Judicial Independence Threatened

With the death of Terri Schiavo in a Florida hospice, most people following her story were given (they thought) at least a glimmer of hope, that the politicians and the right-to-lifer nutters who exploited her for their own selfish purposes, would now pack it in and go home. Or, for that matter, that the Congress (totally clueless during her life) might now get the message that federal intervention in state guardianship proceedings is something most Americans heartily disapprove of.

How wrong they were.

First, the politicians. There’s every possibility , based on statements made by some members of Congress, that a intend is being planned against judges who might have handed the Schiavo case in way unsatisfactory to the right-to-life movement. Give the number of trail and appellate courts the Schiavo case has appeared in, that's a lot of judges.

The way Rep. Tom Delay has been talking lately, there’s a strong possibility that these judges (at least at the federal level) who did not rule in a manner satisfactory to the far right, may find themselves facing impeachment proceedings. This, notwithstanding the backlash in the opinion polls against the Congress for getting involved in the Schiavo case in the first place.

State judges won't be getting off easy either. In fact they have every reason to fear that Congress will conduct McCarthy-style “hearings” where pompous, overbearing members of the House and Senate, egged on by the far right will grandstand and posture and attempt to humiliate as many Florida state judges as possible.

Second, there's a specter of Federal guardianship proceedings hovering over Congress. Especially where there are end of life issues at stake.
If so, this would be a revolutionary change in the way American federalism works and has always worked.

Those who might think this scenario a long shot have only to look back at the special legislation passed to give Mrs Schiavo’s parents the right to litigate in federal courts all the claims they’ve put forward in Florida’s state courts over the past fifteen years or so.

Thirdly, separation of powers. If you think what the far right is planning can't bet much worse, think again. The Republicans appear to want to force the federal courts to become little more than rubber stamps for the Congress.

And the state courts won’t get any better treatment. The Republicans, in order to please the right-to-lifers, would simply ignore the state courts and legislate the way they see fit.. Which in itself simply flies in the face of the 10th Amendment of the US Constitution.



Read what various politicians indebted to the far right have to say about all this.

According to a report on the Fox News website, Gov. Jeb Bush intends to take a “hard look” at end-of-life issues. House Majority Leader Tom Delay threatens that “(O)ur legal system did not protect the people who needed it most, and that will change.” He also made a not-so-subtle threat against just about anyone concerned with the Schiavo case he didn’t like. “The time will come for the men responsible for this to answer for their behavior….” According to Sen. Rick Santorum “(T)he actions by state and federal courts…….were ‘unconscionable.’ ” According to House Judiciary Committee Chairman James Sensenbrenner something called the Protection of Incapacitated Persons Act is going to be introduced for the purpose of doing what he feels the Florida courts did not do, protect Mrs Schiavo. Although how he can make this claim given the fact that so many state courts in Florida heard her case , is not all clear.

The statements made by the rightist politicians are bad enough. But the hypocrisy involved in all this is astounding.

For years the GOP and its allies in the rightist media have been complaining about “activist” judges who were somehow “making” law instead of just interpreting it. Strict constructionism is what they wanted. Of course all that complaining was really directed at decisions that they didn’t like. If a judge made a decision they liked, no matter how far-reaching in its implications, that judge (in their view) was not an “activist” but a “strict constructionist.”

Another phrase the right often uses is the term “imperial judiciary.” The like to argue that Americans live under an undemocratic imperial judiciary. Some rightist go farther and call it a tyranny.

Which is of course a load of clap-trap.

Under the American system of government courts are supposed to be co-equal branches of government. True, the ideal does not always hold, but usually it does. But nowadays, there’s no question that the Congress is now quite willing to overturn the traditional roles of Congress, Executive Branch and Courts in favor of an “imperial” Congress.

The Congress, in its legislation interfering in the Schiavo decision to remove her feeding tube, assumed the power to literally tell the federal courts that not only must they accept jurisdiction of the Schiavo case, they must conduct a new trial, literally retrying all the issues already dealt with by the Florida courts.

This is just overreaching. And it has been recognized as such by the federal courts. .

Judge Stanley Birch of the 11th US Circuit Court of Appeals in an opinion in one of Schiavo’s appeals said it best


“A popular epithet directed by some members of society, including some members of Congress, toward the judiciary involves the denunciation of “activist judges.” Generally, the definition of an “activist judge” 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 Fathers’ blueprint for the governance of a free people – our Constitution.

There’s little doubt that such views are at odds with what the right-wing extremists want, so Judge Birch , among others, may find himself facing impeachment.

It’s time for the Congress to show some courage on its own and put a stop to this assault on the independence of the judiciary and everything else most Americans hold dear.

Punditwalla--