Saturday, April 02, 2005

The Constitutional Sequela of the Schiavo Case

The constitutional sequela of Terri Schiavo's case has now begun to unfold. Representative Tom Delay has called for The House Judiciary Committee to investigate the failure of state and federal courts to somehow protect Terri Sciavo. Never mind the fact that the primary function of the judiciary is to actually protect the Constitution. This is a very disturbing, but predictable result of the recent constitutional activity.

According to this article and other press accounts Mr. Delay has threatened:

"[T]he time will come for the men responsible for this to answer for their behavior." He later said in front of television cameras that he wants to "look at an arrogant, out-of-control, unaccountable judiciary that thumbed their nose at Congress and the president."


On its face this is the hubris so demonstrably at odds with our constitution, eloquently voiced by Justice Birch; however, let's take a look at these "arrogant, out-of-control, unaccountable" judges.

First, is Federal District Court Judge James D. Whittenmore, the judge before whom the first Schindler appeal was heard. His background follows:

Whittemore, James D.

Born 1952 in Walterboro, SC

Federal Judicial Service:
U. S. District Court, Middle District of Florida
Nominated by William J. Clinton on October 20, 1999, to a new seat created by 113 Stat. 1501; Confirmed by the Senate on May 24, 2000, and received commission on May 25, 2000.

Education:
University of Florida, B.S.B.A, 1974

Stetson University College of Law, J.D., 1977

Professional Career:
Private practice, FL, 1977
Assistant federal public defender, Office of Federal Public Defender, 1978-1981
Private practice, FL, 1981-1990
Judge, Thirteenth Judicial Circuit Court, Florida, 1990-2000


Race or Ethnicity: White

Gender: Male
Note his radical, arrogant, and out of control background. Further note he was nominated by the President of the United States, went through the confirmation process, and was in fact confirmed by the United States Senate. Certainly The Senate would have discovered his arrogance and out of control propensities before confirming him to a lifetime appointment to the federal bench.

The next justice of whom Mr. Delay has reference is Stanley F. Birch of the Eleventh Circuit Court of Appeals. His background is even more horrendous:

U.S. Circuit Judge
United States Court of Appeals
Eleventh Circuit

Born:
Langley Field, Virginia
August 29, 1945

Date of Appointment:
May 14, 1990
Entered on Duty:
June 12, 1990
Education:
Calvert Hall, 1963.
University of Virginia, B.A, 1967;
Emory University School of Law, J.D., 1970;
Master of Law in Taxation, 1976.
Previous Employment:
United States Army, First Lieutenant (1970-1972) (Vietnam Veteran)
Law Clerk to Chief Judge Sidney O. Smith, Jr., U.S. District Court N.D. Georgia (1972-1974)
Greer, Sartain & Carey (1974-1976)
Birch, Hartness & Link (1976-1985)
Vaughan, Davis, Birch & Murphy (1985-1990)

Professional Organizations:
American Bar Association, State Bar of Georgia, Atlanta Bar Association, Gainesville-Northeastern Bar Association, Lawyers Club of Atlanta, and Old Warhorse Lawyers Club.


Justice Birch's background is immediately suspect: He served his country as First Lieutenant in Vietnam from 1970 to 1972. Mr. Delay, where were you when your country called for Vietnam? Justice Birch, then completed an exemplary career in private law practice before being nominated by President George H.W. Bush, the President with the most flagrant record of nominating activist judges to the federal judiciary. Again, the Senate must have just let Justice Birch slip through the cracks of the confirmation process, since he took the federal bench in probably the most conservative appellate court in the nation.

If Mr. Delay were a physician, I would invoke the Biblical injunction to "heal thyself!" Mr. Delay of course is not without his own troubles (see also here) in the position in which he serves. This may speak volumes on his motivation to deflect the spotlight to the federal judiciary, rather than on his own indescretions--both personal and constitutional.