Red-staters off base on Schiavo

I think we now know why they call those red states “the Heartland” and not “the Brainland.” In the midst of a campaign to rid the federal judiciary of activist judges, the red-state rubes in Congress somehow managed to get themselves entangled in a campaign to do the exact opposite. The entire purpose of the congressional and presidential intervention in the Terri Schiavo case was to bring about the exact sort of meddling and second-guessing by the federal judiciary that Republicans have been trying to root out ever since the Warren Court of the 1950s. This was hardly the way to kick off the Bush administration’s effort to end the Senate filibuster on judicial nominees. If that effort succeeded, President Bush would get the opportunity to have an up-or-down vote on judicial nominees. He would then presumably fill the federal bench with judges who share the judicial philosophy of Stanley Birch.

Birch sits on the 11th Circuit Court of Appeals in Atlanta, generally considered to be among the most conservative federal appeals courts. A staunch conservative, Birch has angered liberals in the past by his refusal to get the federal courts involved in the affairs of the individual states. He opposed overturning a Florida law prohibiting adoption by gay couples, for example, as well as an Alabama law banning the sale of sex toys.

But Birch also opposed federal intervention in the Schiavo case, writing that such intervention would turn him into an activist judge.

“A popular epithet directed by some members of society, including some members of Congress, toward the judiciary involves the denunciation of ‘activist judges,’ ” Birch wrote. “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 laws as constrained by legal precedent and ultimately our Constitution.”

Birch went on to write that both the Florida Legislature and Congress were free to change the law as it applied to Schiavo and others in her situation. But in this case, Congress had simply directed the court to write a new law.

“Were the courts to change the law, as the Congress and the petitioners invite us to, an `activist judge’ criticism would be valid,” he wrote.

Birch further noted that the order called for the federal courts to reconsider all the evidence in the case “de novo” – from scratch. This is where the red-state rubes really went off the rails. Not only did the order violate the constitutional separation of powers, as Birch noted. It also lowered Congress to the level of the various left-wing loonies who have heretofore adopted this tactic.

The lefties are fond of demanding a de novo review of every trial of every left-wing hero ever convicted of a crime. This phenomenon was on display in the case of Hurricane Carter, who was convicted of a 1966 murder in Paterson, N.J. As with the Schiavo cult, the Carter cult insisted that all the witnesses on one side were saints and all the witnesses on the other side were liars. The question of the witnesses’ veracity even made it into a Bob Dylan song.

But sorting out the saints from the liars is the job of the trial court, whether in the Carter case or the Schiavo case. Appeals judges aren’t supposed to retry the cases in their heads. Yet that’s exactly what a federal appeals court did in the case of Carter. In 1985, his murder conviction was reversed by an activist judge who reconsidered all the trial testimony and decided from scratch who was to be believed and who was to be doubted.

Until the Schiavo case, conservatives had always condemned this sort of thing. They also condemned another tactic of the lefties, the effort to win a victory in the press that cannot be won in the courtroom. Justice is supposed to be blind, and deaf, too – whether the wailing is coming from Bob Dylan or Rush Limbaugh.

“The time will come for the men responsible for this to answer for their behavior, but not today,” said House Majority Leader Tom DeLay. Great idea. Let’s impeach Birch. While we’re at it, let’s take down Supreme Court Justice Antonin Scalia, another conservative judge who declined to take an activist role in the Schiavo case.

Scalia believes in states’ rights, even when the right involved is the right to die. In a speech to a group of law students, he had this to say about Oregon’s right-to-die law: “You want the right to die?” he asked a group of law students there. “That’s right and that’s fine. You don’t hear me complaining about Oregon’s law.”

The rest of the anti-filibuster initiative in the Senate should be great fun to watch. The Democratic opposition is energized. Meanwhile the Republicans seem to lack any suitable nominees – unless Limbaugh gets a law degree.