This Fight's About More Than Judgeships

By Lincoln Caplan

Sunday, May 8, 2005; Page B03

Republicans in Washington have long been fuming about the federal judiciary, but something snapped with the recent Terri Schiavo case. Emboldened, they charged the judges with engaging in activism so outrageous as to warrant impeachment.

And then, surprisingly, one of the men in black fired back. In the final denial of a request to rehear the case, Judge Stanley F. Birch Jr. of the U.S. Court of Appeals for the 11th Circuit declared that President Bush and the Congress had "acted in a manner demonstrably at odds with our founding fathers' blueprint for the governance of a free people -- our Constitution." They did so, he wrote, by infringing on "the independence of the judiciary," by seeking to force the courts to exercise their authority "in a manner repugnant to the text, structure, and traditions" of the nation's basic law, and by violating "the fundamental principles of separation of powers."