The PDF of the Appeals Court ruling in the Schiavo matter is out. The dissenting judgement is very strong. Check out this passage where they take on the separation of powers issue:
I believe that it is fully within Congress’s power to dictate standards of review and to waive in specific cases nonconstitutional abstention doctrines. Indeed if Congress cannot do so, the fate of hundreds of federal statutes would be called into serious question. I wish to dispel any questions of jurisdiction in this case. (emphasis added)
The above quote was in specific response to Judge Birch’s newly proclaimed position that the legislation was unconstitutional (he would have said it before apparantly, but he was too rushed). I’m not kidding, that was pretty much his explanation for it not being raised in their previous decision. He was the only judge that raised the lack of jurisdiction, whereas the remainder simply disregarded the substance of the legislation.
I’ve previously said about this case that strong dissenting judgements are often a prelude to positive legal developments. A lot of questions are going to be asked when the dust clears on this one. Legislation is already being considered, and I’ve heard rumblings of impeachment, although that may be a bit premature at this point. One thing’s for sure – we haven’t seen the last of this dissent.
UPDATE: Andrew Cohen of cBS is proclaiming one of the judges a “hero.” Hmmm…cBS, I wonder which one he’s referring to.