If Terri Schiavo finally perishes over the Easter weekend, the roar of fundamentalist rage will sound like the dawn of Armageddon.
Televised preachers will blame her demise on the Democratic politicians who did almost nothing to oppose the political intervention in her case. Right-wing pundits will denounce the tyranny of “judicial activists,” an “elitist judicial oligarchy” or just plain “liberal judges.” Republican politicians will urge that she be avenged by sweeping away the constitutional protection of the filibuster, so that the president can pack the federal courts with extremists and theocrats.
In a Weekly Standard essay titled “Runaway Judiciary,” Hugh Hewitt promoted that opportunistic theme. Hewitt predicted confidently that public fury over the Schiavo case will increase support for Senate Majority Leader Bill Frist’s plan “to break the Democratic filibusters of judicial nominees and … a backlash against any Republican who sides with the Democrats on the coming rules change vote.”
While exploiting Schiavo’s tragedy for maximum impact, these opportunists probably won’t dwell on the most salient political fact about those awful judges who have ruled so consistently in favor of Schiavo’s husband and against her parents. Most of those tyrannical jurists happen to be Republicans, too.
When the Supreme Court issued what should be the final decision in the Schiavo matter on Thursday, its nine members again unanimously rejected the parents’ plea for another review. The court’s decision, issued through Justice Anthony Kennedy, scarcely went beyond the succinctly negative “denied.” None of the court’s self-styled “originalist” thinkers issued a peep of dissent, although this was their fifth opportunity to do so.
Antonin Scalia, who has come closest to articulating an openly theocratic approach to jurisprudence, indicated no objection to the majority position. Neither did Clarence Thomas, whose views closely mirror those of Scalia. Their silence suggests the radicalism of the congressional departure from constitutional norms that was embodied in the “Schiavo law” passed by both houses of Congress and signed by the president. By turning away the Schindlers’ appeal, the Republican justices were simply endorsing the findings of their colleagues in the lower courts.
On cable television and on the Internet much has been made of the fact that U.S. District Judge James Whittemore — who issued last week’s initial federal ruling in favor of Michael Schiavo — is a “Clinton appointee.” By emphasizing that connection, as if the former president himself were deciding Terri Schiavo’s fate, the cable loudmouths were pandering to the old Satanic caricatures of the Clintons that still excite the ultra-right.
When the Schindlers appealed Whittemore’s decision to the 11th Circuit Court of Appeals in Atlanta, a three-judge panel rejected their plea for a stay. Of the two judges who ruled against the Schindlers, Ed Carnes is a conservative Republican appointed by former President George H.W. Bush, and Frank Hull is a moderate Democrat appointed by Clinton. The dissenting judge, who supported the Schindlers’ plea, was Charles Wilson — another Clinton appointee.
That nonpartisan pattern became even clearer when the full 11th Circuit upheld that panel’s ruling. Of the appeals court’s 12 active judges, only two dissented. One was the aforementioned Wilson; the other was Judge Gerald Tjofelt, a Republican appointed in 1975 by President Ford. The remainder, who evidently concurred with that Clintonite elitist Whittemore, included six Republicans: Reagan appointee and Chief Judge J.L. Edmondson; George H.W. Bush appointees Carnes, Stanley Birch, Joel Dubina, Susan Black; and, most ironically, William Pryor Jr., who was given a recess appointment by George W. Bush two years ago in the midst of controversy and filibuster by Democratic senators.
Pryor is the perfect example of the kind of appointee whose extreme views provoke the strongest liberal and Democratic opposition — and whom the Republicans are determined to elevate by breaking the filibuster. He is a vehement opponent of abortion, an advocate of criminalizing homosexuality and a consistent supporter of theocratic efforts to breach the wall separating church and state. Although the competition is fierce, he is probably the most right-wing nominee chosen by President Bush.
Whatever Pryor may believe about the Schiavo case, he affirmed the silence of his fellow Republicans with his own. Like the views of Scalia and Thomas and most of Pryor’s Republican colleagues on the 11th Circuit, his opinion remains unexpressed.
Despite all the apocalyptic posturing of the far right on the cable channels, weblogs and editorial pages, the Schiavo case is a matter of individual conscience and adherence to law. Although the weight of scientific evidence supports Michael Schiavo’s position, Democrats and Republicans alike have acknowledged how troubling and difficult they find this issue.
Meanwhile, national polls show that the public disdains the hysterical posturing of the Republican leadership in Congress and the White House. Ultimately the Schiavo case may well change the debate over the filibuster, though not as imagined by the likes of Hugh Hewitt, if only because Senate Democrats finally muster the courage and determination to defend the Constitution and an independent judiciary.
Joe Conason is the editor in chief of NationalMemo.com. To find out more about Joe Conason, visit the Creators Syndicate website at www.creators.com.More Joe Conason.