• Time To Remove Tom DeLay

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    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

    William
    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,
    NC.

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