Time To Remove Tom DeLay

Hon. Howard Coble Member of Congress

Dear Howard,

I 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.

Mr. 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.

But 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.

Such 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.

Terri’s 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.

For 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.

Tom 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:

“Thirty 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.”

The 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.

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

With sincerest warm regards,

William Reid Dalton III Burlington NC

April 5, 2005

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