"The time has come for a dispassionate discharge of duty"

The 11th Circuit has now denied the petition for rehearing (referenced in the post below) en banc, and while it did so without a majority opinion, the special concurring opinion is interesting if only for the stirring language used. Some excerpts:

BIRCH, Circuit Judge, specially concurring:

I concur in the denial of rehearing en banc in this case because any further action by our court or the district court, would be improper, as I explain below.

An axiom in the study of law is that "hard facts make bad law." The tragic events that have afflicted Mrs. Schiavo and that have been compounded by the resulting passionate inter-family struggle and media focus certainly qualify as "hard facts." And, while the members of her family and the members of Congress have acted in a way that is both fervent and sincere, the time has come for dispassionate discharge of duty.

A popular epithet directed by some members of society, including some members of Congress, toward the judiciary involves the denunciation of "activist judges." Generally, the defmition of an "activist judge" is one who decides the outcome of a controversy before him according to personal conviction, even one sincerely held, as opposed to the dictates of the law as constrained by legal precedent and, ultimately, our Constitution. 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.

...

Conclusion

The separation of powers implicit in our constitutional design was created ''to assure, as nearly as possible, that each branch of government would confine itself to its assigned responsibility." INS, 462 U.S. at 951, 103 S. Ct. at 2784. But 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. If sacrifices to the independence of the judiciary are permitted today, precedent is established for the constitutional transgressions of tomorrow. See New York 505 U.S. at 187, 112 S. Ct. at 2434. Accordingly, we must conscientiously guard the independence of our judiciary and safeguard the Constitution, even in the face of the unfathomable human tragedy that has befallen Mrs. Schiavo and her family and the recent events related to her plight which have troubled the consciences of many. Realizing this duty, I conclude that Pub. L. 109-3 is an unconstitutional infringement on core tenets underlying our constitutional system. Had Congress or the Florida legislature, in their legislative capacities, been able to constitutionally amend applicable law, we would have been constrained to apply that law. See Robertson v. Seattle Audobon SOC'y, 503 U.S. 429, 441, 112 S. Ct. 1407, 1414 (1992). By opting to pass Pub. L. 109-3 instead, however, Congress chose to overstep constitutional boundaries into the province of the Judiciary. Such an Act cannot be countenanced.

One other point, on the issue of 'evidence.' Court opinions can be good places for finding a summation of the facts that is clear, concise, and competent. Unfortunately, few reporters seem interested, or perhaps capable, of doing that much reading. In the other concurring opinion to this decision, two justices quote from Florida's Second District Court of Appeal, which, they note, "did carefully review the record and determined that the question the trial court decided:

was whether Theresa Marie Schindler Schiavo, not after a few weeks in a coma, but after ten years in a persistent vegetative state that has robbed her of most of her cerebrum and all but the most instinctive of neurological functions, with no hope of a medical cure but with sufficient money and strength of body to live indefinitely, would choose to continue the constant nursing care and the supporting tubes in hopes that a miracle would somehow recreate her missing brain tissue, or whether she would wish to permit a natural death process to take its course and for her family members and loved ones to be free to continue their lives. After due consideration we conclude that the trial judge had clear and convincing evidence to answer this question as he did.

And that, in the end, is what this legal case is about.