A preview of more oncoming attractions designed to tear our country down the middle - like we need a more divided society than we have already.
Schiavo Case a Precursor to Battles Ahead
By Dana Milbank
Washington Post Staff Writer
Thursday, March 31, 2005; 4:39 PM
The political passions stirred by the Terri Schiavo case over the past fortnight are but a hint of the feud likely to come this summer with an expected Supreme Court confirmation battle, partisans on both sides say.
Republicans say the Schiavo fight has mobilized its conservative base for the struggles to come over President Bush's judicial nominations. In defeat, they believe Schiavo's death could become a rallying point for a broader "culture of life" movement to secure judges and a justice who would restrict abortions.
"It is entirely possible that in her death Terri Schiavo will become a symbol for many people about a disturbing trend in American culture," said Gary Bauer, a prominent conservative activist. Predicting a "donnybrook" over the eventual Supreme Court nominee, he said the Schiavo case "will make more acute the feeling at the grass roots that too many of the most important decisions are being made by unelected judges."
Democrats are comforted in knowing that the intervention in the case by Congress and the president has been resoundingly rejected -- not just by the courts but by large majorities of Americans and even some conservative commentators. "The other side has overplayed its hand and taken a beating," said Jim Jordan, a Democratic strategist.
But on one thing, the two sides agree. The Schiavo dispute will have echoes, first in the effort to end Senate Democratic filibusters of Bush's appellate court nominees, and then the likely battle over a successor for ailing Chief Justice William H. Rehnquist. "It certainly guarantees an even uglier, even more passionate argument on both sides," Jordan said.
The coming battle was foreshadowed today by Rep. Tom DeLay (R-Tex.), the House majority leader and an ardent champion of preserving Terri Schiavo's life. He vowed to pursue changes in what he called "an arrogant, out-of-control, unaccountable judiciary," and he suggested that judges would be held to account.
"This loss happened because our legal system did not protect the people who need protection most, and that will change," DeLay said. "The time will come for the men responsible for this to answer for their behavior. . . ."
The most direct consequence of the Schiavo affair is likely to be a push for federal and state legislation; lawmakers in both parties have proposed laws that would make it more difficult to remove life support in cases where the patients' wishes are disputed. But experts say such changes are unnecessary. In the three decades since the Karen Ann Quinlan case, there have only been a few big legal battles over the "right to die." Alan Meisel, a University of Pittsburgh law professor, said only one case in several thousand winds up in litigation -- hardly a legal crisis.
Former Reagan administration lawyer Bruce Fein, who had predicted the federal courts would reject the congressional request to reopen the case, said states could avoid future problems by increasing the standard of proof needed about a patient's wishes before discontinuing life support. But that's largely unnecessary. "Schiavo is the exception that proves the rule: we haven't had a lot of agonizing cases," he said.
It is also difficult to argue that the Schiavo case would have turned out differently if more of Bush's conservative judicial nominees had been confirmed. Conservative judges were at least as likely as liberals to oppose federal intervention.
Justice Anthony Kennedy, a Reagan appointee, rejected the Schiavo appeal, and William Pryor, whom Bush has seated temporarily on the 11th circuit appeals court in hopes of winning his confirmation to that court, did not dissent publicly from the decision not to hear the case. And key opinions relevant to the case were written by Rehnquist and Justice Antonin Scalia.
It was, in fact, an appellate judge appointed by President George H.W. Bush who wrote an opinion Wednesday criticizing the president and Congress for acting "in a manner demonstrably at odds with our Founding Fathers' blueprint for the governance of a free people -- our Constitution."
Legal analysts have said the lawyers for Schiavo's parents could have made a more solid case by emphasizing technical issues about guardianship and the woman's medical condition but instead chose a low-probability -- but highly charged -- argument about religious liberty. "They used their client to advance a principle rather than win a case," said one prominent conservative who asked not to be named because he was criticizing allies. "We accuse liberals of doing this all the time."
But none of these considerations is likely to prevent the Schiavo case from spilling into the fight over judicial nominees. Democrats, at first ambivalent on the issue and relatively quiet as the controversy played out, are buoyed by polls such as one by CBS News last week finding that 82 percent opposed Bush and Congress involving themselves in the matter. Three-quarters thought Congress got involved because of politics over principle, which could account for a the 34 percent approval rating for Congress -- its lowest since 1997.
This has some Republicans concerned about the Schiavo case's backlash. GOP lawmakers, having trouble gaining traction in the Social Security debate, were originally grateful for the distraction. But now, with even more public opposition on the Schiavo matter, they're wondering if they are "walking the plank," said one Republican strategist.
But as the 2004 election proved, winning in politics is as much about exciting a "base" of supporters as it is about taking popular positions. GOP strategist Jeff Bell said that despite the polling, "it's very clear the intensity is on the side of the people who thought this was an abomination."
The source of that intensity, he said, was the link between the Schiavo case and other "life" issues such as abortion-- a link that he predicted would be made in the coming confirmation battles. "Although the form of this issue was assisted suicide it has a lot more relevance for abortion," Bell said. "State sanctioned private killing is what this is about."
If that's true, the dispute may have been relatively tame compared to the one that looms. "It was a warmup," said Scott Reed, another Republican strategist. "It woke up both sides of the debate for the coming Supreme Court battle." |
