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On the other end of the telephone, Judge Stanley F. Birch Jr. of the 11th U.S. Circuit Court of Appeals sighs when he learns that a reporter is writing a story about him. He’s the judge who on March 30 chastised Congress and President Bush for acting “in ways inimical to basic constitutional principles” when they hurriedly pushed through a law requiring the federal courts to review the Terri Schiavo case. Since releasing his widely quoted rebuke, Birch, a 1990 appointee of the first President Bush, has been the subject of impeachment calls from angry lawmakers. He’s received letters telling him, “You’re going to burn in hell.” Congratulatory messages, Birch adds, have outnumbered the negative ones by about 10 to 1. Relenting to the interview with the Daily Report, Birch says, “You have a job to do.” Just doing his job is how the 59-year-old judge describes his decision in the Schiavo case. It was the latest move in a career that has ranged from rescuing downed pilots in Vietnam to protecting the copyright and trademarks of Cabbage Patch Kids. Commentators have called Birch one of the 11th Circuit’s most conservative voices, highlighting the irony of his criticism of the Republican-led Schiavo law. But in the American culture wars, Birch has perplexed both sides in his decisions. “I find him, in ways both good and bad for us, the most unpredictable judge on the 11th Circuit,” says Gerald R. Weber Jr., legal director of the Georgia chapter of the American Civil Liberties Union. Birch’s writings in cases involving gay rights illustrate Weber’s point. They also show Birch’s efforts to display the quality he said Congress and the president were missing in the Schiavo case — a strict separation between one’s personal views and a dispassionate adherence to the law. In 1997, Birch was on the short end of an 8-4 decision that upheld a ruling favoring then-Georgia Attorney General Michael J. Bowers. Robin J. Shahar had sued Bowers after her offer for a staff attorney job at the AG’s office was rescinded because Bowers learned that she planned to hold a marriage ceremony with her lesbian partner. The 11th Circuit majority found that any rights Shahar had regarding her relationship did not outweigh Bowers’ concerns that her employment would conflict with his high-profile enforcement of the state’s laws against sodomy and homosexual marriage. In dissent, Birch took issue with Bowers’ argument that Shahar would have trouble representing the state because, as a homosexual, she was more likely than others to violate the state’s law against sodomy (which subsequently was struck down by the state Supreme Court). “Lawyers are trained to be advocates of legal positions with which they may personally disagree,” wrote Birch. The judge concluded that Bowers’ concerns, based on inferences that are “explained only by animosity toward and stereotyping of homosexuals,” did not amount to a legitimate reason that outweighed Shahar’s First Amendment right to intimate association. Shahar v. Bowers, 114 F.3d 1097. Later that year, Birch delivered the keynote address at the annual awards dinner for the Stonewall Bar Association of Georgia, a legal group that backs gay and lesbian rights. Jane Morrison, the group’s outgoing president at the time, recalls that Birch discussed the case of Jamie Nabozny, an openly gay Wisconsin teenager who claimed school officials ignored physical and mental abuse inflicted on him by other students. Birch discussed the 7th Circuit’s 1996 decision to allow Nabozny’s equal protection case to go forward. Nabozny v. Podlesny, 92 F.3d 446. Morrison says she recalled Birch was “overwhelmed by what the young man had to go through.” About seven years after stirring the Stonewall Bar crowd with his sympathy for the harassed Nabozny, Birch disappointed gay rights activists when he wrote for a three-judge panel that upheld Florida’s law banning homosexuals from adopting children. Lofton v. Secretary of Department of Children and Family Services, 358 F.3d 804. Birch based the ruling on his conclusion that Lawrence v. Texas, 539 U.S. 558, the 2003 U.S. Supreme Court decision that struck down anti-sodomy laws, did not mean the Constitution provides a fundamental right to sexual privacy. If homosexual conduct was not a fundamental right, federal courts could not overrule the policy judgment of the Florida Legislature, Birch added. “We are particularly hesitant to infer a new fundamental liberty interest from an opinion whose language and reasoning are inconsistent with standard fundamental-rights analysis,” Birch wrote. Some legal observers took Birch’s comment as a shot at Justice Anthony M. Kennedy, the author of the high court’s majority opinion in Lawrence. David J. Garrow, an Emory University law professor who studies the U.S. Supreme Court, found Birch’s comments “gratuitously critical, dismissive, and I think one might quite fairly say insulting” to Kennedy. Birch says he did not intend to be critical of Kennedy. The Lawrence opinion, he adds, “did not offer a tremendous amount of guidance,” and that is what he was trying to say. When the plaintiffs in the Florida case — homosexual couples who were already serving as foster parents — appealed to the full 11th Circuit, the court split 6-6, thereby allowing Birch’s original decision to stand. In a passionate dissent, Judge Rosemary Barkett wrote that the only way Birch’s conclusion held up was “to deliberately refuse to give meaning to the overwhelming bulk of the words, phrases, sentences, and paragraphs used in Lawrence.” Birch defended his ruling, ending it with “a purely personal note.” “If I were a legislator, rather than a judge, I would vote in favor of considering otherwise eligible homosexuals for adoptive parenthood,” he wrote, later calling the Florida law “misguided.” Birch concluded with language that seemed to foreshadow his stance when faced with the Terri Schiavo case and Congress’ effort to force federal courts to review Florida court rulings on the matter: “I will not allow my personal views to conflict with my judicial duty — conduct that apparently fewer and fewer citizens, commentators and Senators seem to understand or appreciate.” RESCUED PILOTS IN VIETNAM Birch was born in August 1945 in Langley, Va., and attended the University of Virginia in Charlottesville, where he took a writing class taught by William Faulkner. After graduating in 1967, Birch came to Atlanta where he enrolled in law school at Emory University. He earned his law degree in 1970 and then began a two-year stint in the U.S. Army to serve out his ROTC commitment. He started in the quartermaster corps but was transferred to the infantry and a Special Forces unit that ran missions to rescue downed U.S. pilots in Vietnam. Under orders to avoid enemy confrontations, Birch’s team would be taken by boat or helicopter to collect the pilots, whose position had been estimated by pre-satellite homing technology. “Looking back on it, I’m glad I did it,” he says. “At the time it wasn’t terribly pleasant.” A first lieutenant, Birch served with the team for about six months, after which he was transferred to Thailand. There he worked on the staff of Gen. Jack Vescey, who later would become chairman of the joint chiefs. At public events, Birch can be seen wearing on his coat lapel a small Vietnam service pin, an act Birch says he does to honor the others who served there. Upon returning to the United States, Birch began a two-year clerkship for U.S. District Judge Sidney O. Smith Jr., where he overlapped with J.L. Edmondson, who is now Birch’s colleague as chief judge of the 11th Circuit. After clerking, Birch started working in private practice in Gainesville. One day, “a young man named Xavier Roberts walked into my office carrying several soft sculpture dolls that he referred to as ‘babies’ and were initially commercially known as ‘Little People,’” Birch told the “How Appealing” blog in 2003. Birch registered the copyrights and incorporated the company that would launch the Cabbage Patch craze of the 1980s. The work led him to join the Atlanta firm Vaughan & Murphy. Birch told “How Appealing” that his judicial appointment came as a result of his positioning himself for the job — ranging from getting his master’s degree in law and taxation to “essential” involvement in politics. In 1980, Birch managed the North Georgia campaign for Republican Mack Mattingly, who upset longtime Democratic U.S. Sen. Herman Talmadge. BIRCH: ENOUGH IS ENOUGH Birch likens the Schiavo case to another fast-moving matter to come out of Florida, the case surrounding the 2000 presidential election. In that case, the full 11th Circuit let stand a ruling by a Florida federal judge who would not stop manual recounts of votes. Birch, one of four dissenters, argued, “Absent clear and certain standards, Florida’s manual recount scheme cannot pass constitutional muster.” Siegel v. LePore, 234 F.3d 1163. That argument was ultimately accepted by the Supreme Court in its 5-4 decision in Bush v. Gore. Unlike in the election case, the Supreme Court refused to get involved in the Schiavo matter, leaving the 11th Circuit with the last word. The original panel decision by Judges Edward E. Carnes and Frank M. Hull, over the dissent of Judge Charles R. Wilson, set out the court’s reasoning for not accepting claims by Schiavo’s parents that a feeding tube be reinserted into their severely brain-damaged daughter. But Birch’s solo concurrence to the full court’s decision not to take the case en banc — in which two of the 11 judges who voted issued dissents — was the comment that grabbed attention. Birch says he’s been told that the concurrence’s Web posting has received millions of hits. The decision would not have come out at all had Schiavo’s parents not decided, three days after suggesting they were giving up on the courts, to ask the full 11th Circuit to take up the case. The case had been before the full court a week before, but Birch says he was not ready to say anything then. Pondering the possibility that the case would return, Birch asked his clerks to start researching the law surrounding the separation of powers. He wrote a draft, he says, and thought about it a lot. When the case returned, Birch says, he thought, “Enough is enough.” He submitted his concurrence to the en banc rejection to Edmondson to be published with the court’s announcement that it would not take the case. “If sacrifices to the independence of the judiciary are permitted today, precedent is established for the constitutional transgressions of tomorrow,” Birch wrote. “I thought it ought to be said,” says Birch. The case is Schiavo v. Schiavo, No. 05-11628 (11th Cir. March 30, 2005).

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