Time To Remove Tom DeLay

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Howard Coble
of Congress


write to you today with the unpleasant task of urging you and your
colleagues to begin steps to remove Tom DeLay from his position
of leadership of the Republican Caucus in the United States House
of Representatives.

DeLay’s leadership role has disturbed me for a number of years,
primarily from the time the Party took control of the White House
with President Bush’s election in 2000. Foremost, of course, are
the ethical lapses that have been documented by the House Ethics
Committee, to which the Republican Caucus inexplicably responded,
not by firing Mr. DeLay, but by firing the committee chairman. This
was a failed test of the Congress’s mettle that was noticed not
only by Democrats and other detractors of the GOP majority, but
also by Republicans and favorable independents.

the final nail in Mr. DeLay’s coffin, as far as I am concerned,
was the extraordinary and embarrassing measures he took to press
the Terri Schiavo tragedy into the Federal courts and his hubris,
even today, of calling for the impeachment of the Federal judges
who had the temerity of actually upholding the laws and Constitution
of the United States by refusing a preliminary injunction in the
case. I understand that Mr. DeLay is not a lawyer, and unlike you
and I, did not have the advantage of a good UNC Law School education.
However, he certainly must have someone on his staff or among his
colleagues who can explain to him such basics of the jurisdiction
of Federal Courts as Article Three, cases and controversies, federal
questions, and even Marbury vs. Madison. Congress has the
power to give the Federal Courts jurisdiction to hear cases arising
under the laws and Constitution of the United States and cases between
citizens of different states where there is a substantial amount
in controversy. Fortunately, the Palm Sunday act was crafted by
cooler heads than Mr. DeLay’s, in that, while embarrassing, it did
not confer upon the U.S. District Court in Florida any jurisdiction
to hear issues surrounding Terri Schiavo other than those it constitutionally
had. This, of course, meant the District Court in Tampa, as well
as the Eleventh Circuit and Supreme Courts, had only jurisdiction
to hear claims that Mrs. Schiavo had been denied due process or
a Federal constitutional right. Congress had not given them, nor
could Congress have constitutionally presumed to give them, jurisdiction
to hear claims that could be decided solely under state law.

claims can and have been framed which raise questions that really
have been at the center of public debate: what were Terri Schiavo’s
wishes with respect to the care she would receive under her terrible
circumstances, what rule should govern in the absence of an express
declaration of her intent, what bearing does Terri’s status as an
adherent of the Roman Catholic faith have upon determining her wishes,
was there any conduct on Mr. Schiavo’s part that would or should
disqualify him to act as Terri’s guardian, and should the law allow
the removal of a feeding tube from a comatose or similarly incapacitated
person, with or without the express direction of that person and
the consent of her family. These are all legitimate legal and factual
questions, but they are not questions arising under the laws and
Constitution of the United States. They are questions upon which
testimony and other evidence was taken, arguments were considered,
decisions were rendered and the same reviewed on appeal in the courts
of the State of Florida. While many have complained that the Florida
courts had decided one or more of these questions wrongly, I never
heard one peep that Judge Greer or other Florida judges acting arbitrarily,
cavalierly, with bias, or in any other fashion that would be considered
a denial of due process under the Fourteenth Amendment. The Federal
judges who heard the case brought under the Palm Sunday Act heard
what arguments the Schindlers’ lawyers could make on the basis of
a denial of due process or other Constitutional rights, saw that
they lacked any substantial evidentiary basis, and rightly concluded
that Terri’s parents were unlikely to prevail at trial and were,
therefore, not entitled to a preliminary injunction.

parents received the same consideration that the Federal Courts
give to any habeas petition. Those who complain that death row and
other state inmates receive more attention are simply wrong. I have
worked as a law clerk to a U.S. District Judge, and a good half
of my work was reviewing habeas petitions. Not one case in fifty
would even be found to merit oral hearing, much less a trial with
taking of evidence or an order vacating a state court’s sentence.
While every inmate had something to complain about how his criminal
trial turned out, almost invariably his complaints were ones that
had been heard, given due consideration, and rejected by the states
courts. There were rarely facts alleged, much less for which evidence
was proffered, that would demonstrate denial of due process or of
a constitutional right. Such cases were and are routinely dismissed,
as were the Palm Sunday petitions, but without fanfare.

Congressman DeLay to complain that the Federal Judges who heard
this matter acted improperly is risible, and to threaten their impeachment
is an intolerable outrage. Such a suggestion should be repudiated,
forcefully, by the members of Congress, with you, as a distinguished
and respected conservative, lawyer, and member of the House Judiciary
Committee, in the forefront. Mr. DeLay’s leadership of your caucus
has long been troublesome. Certainly this is a grievance which should
bring it to an end.

DeLay has dared to place the Federal judges who refused to bend
to his whims in interpreting the Palm Sunday act in the same category
as those who imposed upon the nation Roe vs. Wade and all
its unfortunate progeny, including Lawrence vs. Texas. Well,
I, who have opposed these acts of judicial tyranny far more consistently
than most Republicans in Congress, see this occasion very differently.
I recently wrote to a friend the following:

years ago I joined the Republican Party, in large part because
one branch of the Federal government had decided to arrogate to
itself, through the purported creation of a “federal right," the
power to determine whether and when government may intervene to
restrict medical practices resulting in the death of unborn children,
and the Republicans were the only party that seemed interested
in curtailing this judicial tyranny. Today, a Republican Congress
was stopped just short of creating a “federal right," a cover
for arrogating to itself the power to determine whether and when
government may intervene to restrict medical practices resulting
in the death of profound invalids, who, like unborn children,
cannot speak for themselves.”

Supreme Court is not the only institution in the U.S. Government
that can be found to bend and break the limits of its authority
under the Constitution. Congress, in enacting even such substantively
commendable bills as the Partial Birth Abortion Act, has fallen
prey to the same virus as the Supreme Court in Roe vs. Wade,
the willingness, in response to public clamor, to enact a national
policy with respect to sexual conduct, abortion, and defining the
taking of human life, which the Constitution has clearly left to
the States alone to decide, each for itself. If Tom DeLay and his
allies can not see that this is the REAL comparison to be made between
the arrogance of the Supreme Court and the recent machinations over
Terri Schiavo, then they shouldn’t be in the Republican Party, much
less leading your caucuses in the House and Senate.

hope you will take a position to help end this madness.

sincerest warm regards,

Reid Dalton III

5, 2005

Reid Dalton III [send him mail]
(J.D., UNC at Chapel Hill, M.Div., Union Theological Seminary in
Virginina), is an attorney and Presbyterian minister in Burlington,

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