Terri Schiavo & The Constitution

This commentary was written by attorney Andrew Cohen, who analyzes legal issues for CBS News and CBSNews.com.

After his "special concurrence" in the Schiavo case Wednesday, Judge Birch is a hero to all of us who believe that the courts can rise and stay above cheap politics - and that the hypocrisy and demagoguery and self-interest that fuels the other two branches of government still can be neutralized when it comes into our courts of law.

He is a hero to all of us who hoped during the past fortnight of argument and appeals that the federal courts would determine this case in a nonpartisan, non-ideological way. He is a hero to all of us who wanted the courts to beat back this brazen power-grab by the other two branches.

When his federal appeals court in Atlanta was asked late Tuesday night by Bob and Mary Schindler - Terri Schiavo's parents - for one more break, for one more example of the special treatment they have received all through this latest round of appeals thanks to Congress and the White House - Judge Birch and his colleagues acquiesced.

They agreed to accept the Schindlers' final appeal even though, inexplicably, the family had not pursued a timely appeal notice last Saturday. We were too busy to file on time, the Schindlers explained to the appeals court.

If Judge Birch and company were to get such a request a hundred times from me or from you, they would probably turn us down 95 times. Appellate courts are notorious sticklers for deadlines and technicalities, and for getting rid of as many cases as possible before having to decide them on the merits.

But not this time. Knowing that Terri Schiavo is in her last days, perhaps even her final hours, the conservative 11th Circuit graciously allowed the Schindlers to get back into court one more time to make one more constitutional argument.

Someone asked me Wednesday whether I thought that this move by the court was judicial pandering to public sentiment. I didn't and I don't. I see it much more as old-fashioned common decency.

The court thus went out of its way to give Terri Schiavo's parents one final chance in appealing their case. Now at least no one should be able to seriously claim that federal judges from Tampa to Atlanta to Washington didn't bend over backward to give the Schindlers an extra-special, good-for-one-family-only review ordered by Congress (but necessarily limited by the Constitution).

Indeed, when it came down a few hours later, the 9-2 appeals court ruling itself was a reminder that judges swear an oath not to bend too much; not to bend to the will of the majority (or, in this case, to the will of the powerful minority); not to bend to the expediencies of a single case or to the emotions that rule a day. Judge Birch was the judiciary's loud and clear voice behind that message.

For probably the final time, the 11th Circuit spoke to the Schindlers, and to the nation, and to Congress and the White House, about Terri Schiavo. And it spoke quickly and clearly.

To no one's surprise, the panel again overwhelmingly confirmed the conclusion that all of the various Florida state court decisions (and the federal review) had affirmed, not violated, the constitutional rights of Terri Schiavo and the Schindlers. But instead of brief written order to that effect, Judge Birch wrote the words that many behind the bench have longed to hear over the past few weeks.

"In resolving the Schiavo controversy," Judge Birch wrote, "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."

Because the special legislation passed by Congress and signed by President Bush "constitutes legislative dictation of how a federal court should exercise its judicial functions (known as a 'rule of decision') the Act invades the province of the judiciary and violates the seperation of powers principle." To hold otherwise, Judge Birch concluded, would be to act in a manner consistent with the label "activist judge." Touché.

Judge Birch was appointed in 1990 by the first President Bush. Because he is a Republican appointee, and a judge who is generally viewed as a solid conservative jurist, his voice carries with greater force in this debate. It carries the word that what happened here in this case was so beyond the pale, so extralegal, that even political and jurisprudential opposites on the bench could agree that it was terribly wrong and had to be blocked.

A Clinton appointee could not have spoken with such legal and political and moral force in this case. It would have come off as too obvious; too predictable. It took a brave judge appointed by the current president's father to call the current president to task for trying to pull a fast one on the overarching concept we have in this country known as the separation of governmental power.

So Judge Birch is a hero and he is now a symbol. Of all of the federal judges who were forced - literally forced - by Congress and President Bush to give special treatment to the Schindlers, only Judge Birch spoke up and called it like he saw it.

Many judges ruled against the Schindlers over the past ten days - all but two, as near as I can tell - but only Judge Birch took the extra step of describing and explaining the dangerous dynamic and precedent that was set in motion by House leaders and the President when they enacted legislation in the middle of the night to help a single family get exclusive new rights in our federal courts.

Only Judge Birch stepped into the court of public opinion to lay down his marker and stare down his colleagues in the sister branches of government. The Chief Justice didn't do it. The last liberal lion left on the Court, Justice John Paul Stevens, didn't do it. The mouth that roared on the bench, Justice Antonin Scalia, didn't do it. They all had opportunities but they remained silent. Only Judge Birch spoke up.

For two long weeks, we have heard cheesy pols from Washington to Tallahassee and all points in between rise to speak in support of the Schindlers. We have heard mischaracterization after mischaracterization uttered about what the law is, what it should be, and who gets to decide. And we have heard slander upon slander directed at judges.

For two long weeks, in the court of public opinion, the squawking heads of the airwaves incited people with descriptions of the Schiavo case that bore no resemblance to its realities.

On behalf of the judiciary - the third but co-equal branch of our government - someone important, someone vital, had to stand in this vortex of hot air and ill will and shout back. Alone, Judge Birch did. That's why I think he is a hero. And why I think you should consider him one, too.