The case that wound through numerous courts may be used by a conservative effort to change the judiciary.
By WES ALLISON, Times Staff Writer
Published April 4, 2005
WASHINGTON - For all the attention her case has brought to the difficult issues of life and the end of life, the first legacy of Terri Schiavo may arise in the U.S. Capitol, by providing new momentum for Republican attempts to push the federal judiciary to the right.
Conservative activists and members of Congress believe that state and federal courts essentially ignored the law Congress passed on her behalf last month.
The case has brought national attention to the favorite conservative cause of reining in the judiciary, as well as to the Republican push in the Senate to overcome Democratic opposition and install more conservatives on the federal bench.
"I think the Schiavo case dramatized the need to do something to restrain the judiciary," said Richard Lessner, executive director of the American Conservative Union in Washington.
"So when we get to the coming battles over judicial nominees in the Senate, perhaps the public will be somewhat more engaged, in realizing what's at stake. In this case, literally life and death."
Schiavo's death Thursday came as senators prepared to address the most contentious issue brewing on Capitol Hill: whether Republican leaders will change a long-standing Senate rule that requires 60 votes to confirm a presidential nominee to the federal courts.
Republicans are threatening to change the rules so that judges could be confirmed with a simple majority, or 51 votes. Republicans hold 55 of the Senate's 100 seats.
Those who support the change call it the "constitutional option," because they contend that filibustering Democrats have overstepped the Senate's constitutional duty to "advise and consent" on judicial nominees.
Democrats call it the "nuclear option," because it would break the long-standing Senate tradition, unlike in the House, of allowing the minority to retain some measure of control.
Both sides acknowledge the Schiavo case has inflamed passions, because state and federal courts did not make the rulings anticipated by lawmakers who wrote the bill allowing federal review of her case.
"The lasting dispute isn't going to be between Terri's parents and her estranged husband. It's going to be between the branches of government," said Tony Perkins, president of the Family Research Council.
"The courts are at the very center of this, and I think that's going to increase the public pressure on the part of their elected representatives to take action. ... Just because someone dressed in black makes a decision, that is not the final word."
Congress returns this week after a two-week break. Senate Majority Leader Bill Frist, who is expected to discuss the issue with his Democratic counterpart, Harry Reid of Nevada, recently issued a letter outlining his desire to reach a compromise rather than change the rule.
"But any compromise must include an up or down vote" on the president's nominees, Frist spokeswoman Amy Call said.
Americans can expect the same sort of campaigning that has marked the battle over changing Social Security, as Democratic-leaning groups, including organized labor, seek to marshal a coordinated defense. Last week, the People for the American Way, a liberal group, launched a $5-million ad campaign that urges against changing the rules.
The Family Research Council is running ads in favor of it, and a coalition of conservative groups is expected to urge Frist to implement the change. They want the Senate to act before there's a vacancy on the Supreme Court, to ensure confirmation of the president's nominee.
"The end goal of accountable judges is what we want. And I can't imagine this judicial fiasco with the Schiavo case will lessen the urgency for something to happen here," said Carrie Gordon Earll, a senior policy analyst at Focus on the Family, an evangelical public policy group.
Schiavo, she said, "may be putting a face on the whole discussion of judicial activism for many people in the country who before didn't really know what we were talking about."
The president brought the fight over the judiciary to the forefront earlier this year by renominating seven of the 10 appellate court nominees the Democrats rejected during his first term.
Schiavo's death raised the heat of the rhetoric, with some lawmakers and conservative leaders now calling for Congress to wrest more control from the courts.
"This loss happened because our legal system did not protect the people who need protection most, and that will change," House Majority Leader Tom DeLay said the day Schiavo died. "The time will come for the men responsible for this to answer for their behavior, but not today."
In denying to hear the Schiavo case last week, Judge Stanley F. Birch Jr. of the 11th Circuit Court of Appeals said Congress and the president had overstepped their constitutional boundaries.
"We must conscientiously guard the independence of our judiciary, even in the face of the unfathomable human tragedy that has befallen Mrs. Schiavo," Birch wrote.
Birch also dismissed complaints about judicial activism, writing that, "Were the courts to change the law, as (Schiavo's parents) and Congress invite us to do, an "activist judge' criticism would be valid."
Mike Allen, an expert in constitutional law and civil procedure at the Stetson University College of Law in Gulfport, agreed that Schiavo "is going to be used as a poster child for this argument of judicial activism."
But as a matter of law, he said, her case was a lousy example. Pinellas-Pasco Circuit Judge George Greer, who ordered that her tube be removed, followed state law in allowing Schiavo's husband to make decisions for her. And the law Congress passed didn't require the federal courts to reinsert Schiavo's feeding tube; it just allowed them to.
Conservatives' anger toward the judiciary has grown over the past two years with several court rulings, especially the approval of same-sex marriage by the Massachusetts high court; a lower-court ruling against the federal ban on late-term abortion; and the U.S. Supreme Court case, Lawrence vs. Texas , that overturned a Texas law outlawing sodomy. The case involved a gay couple.
Several conservative lawmakers have advocated laws that would restrict the power of the lower federal courts to rule on specific matters, including public display of the Ten Commandments. Those ideas haven't gained much traction on Capitol Hill. But Perkins of the Family Research Council said the Schiavo case provides ammunition for advocates of a more strident approach.
"If necessary, and it shouldn't be often, the legislative and the executive branch should refuse to acknowledge a judicial decision, just as the judiciary sometimes ignores the legislature," Perkins said.
"The message that we've seen to date is that the judicial system is suffering from a persistent state of arrogance. And that's going to have an impact on the debate over the judiciary."
But Allen and others said Republicans fuming in Congress should consider this, too: Political persuasion doesn't guarantee popular decisions, nor should it.
Greer is a conservative Christian and elected Republican. And among the federal courts that reviewed the Schiavo law, Republican appointees, including Birch, were just as likely to say no as Democrats.