Court rebukes Bush and Congress

Michael Schiavo stayed out of public view Wednesday.
BALTIMORE SUN
PINELLAS PARK, Fla. -- A federal appeals court, in rejecting another plea by the parents of Terri Schiavo to have her feeding tube reinserted Wednesday, took its ruling one step further by rebuking Congress and President Bush for intervening in the case.
The 11th U.S. Circuit Court of Appeals had offered a sliver of hope to Robert and Mary Schindler, agreeing to hear the parents' emergency motion early Wednesday. But its ruling not only rejected the plea, it also abandoned dispassionate legal language to take on the politicians who tried to enable the severely brain-damaged Schiavo to get back on artificial life support.
"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," Judge Stanley F. Birch Jr. wrote in the majority opinion.
Tighter security
As Schiavo spent her 13th day without food or water, police ramped up security outside the hospice, searching the trunks of cars after receiving a threat earlier this week that a bomb would detonate outside the hospice upon Schiavo's death. Amid the ongoing prayer circles and sober updates on Schiavo's condition, a circus-like atmosphere also prevailed. At one point, a "Juggler for Jesus" tossed pins in the air until members of a prayer circle scolded him.
The most striking development came from Atlanta, where the largely conservative federal appeals court refused to grant the Schindlers a new hearing. The parents had argued that a federal judge in Tampa failed to consider the entire state record on their daughter's case and that a federal court had not looked into whether there was clear evidence that Schiavo wanted to die this way.
In his written opinion, Birch said that the law passed by Congress requiring the federal courts to review the matter was unconstitutional -- an infringement of the separation of powers.
Birch also took aim at critics who have said "activist judges" acted out of personal preference instead of legal precedent in refusing to reinstate artificial life support for the 41-year-old woman. But Birch said it was the politicians -- not the courts -- who were overzealous.
"When the fervor of political passions moves the executive and the legislative branches to act in ways inimical to basic constitutional principles, it is the duty of the judiciary to intervene," wrote Birch, who was appointed by the first President Bush, and is considered one of the court's most conservative judges.
Michael Schiavo, who remained out of view Wednesday, has argued that his wife told him she never wanted to live in her current condition. After Schiavo's feeding tube was removed, state and federal courts repeatedly rebuffed the Schindlers' efforts to reinstate it. Schiavo, who lacked a living will, has been in what doctors called a persistent vegetative state since 1990.
Dissenters
Two of the 12 judges dissented in Wednesday's ruling -- the Schindlers' fourth loss in federal court since last week. Judge Gerald Tjoflat, appointed by Gerald Ford, and Judge Charles R. Wilson, nominated by former President Clinton, also dissented in a previous ruling against the Schindlers.
"The relevant question here is whether a rational fact finder could have found by clear and convincing evidence that Mrs. Schiavo would have wanted nutrition and hydration to be withdrawn under these circumstances," Judge Tjoflat wrote.