The Schiavo vote: Forget federalism, again

Bill Frist says congressional intervention in a "unique" case shouldn't be considered precedent for the future. Where have we heard that before?

By Tim Grieve
Published March 21, 2005 6:43AM (EST)

At 12:20 a.m. today, the House of Representatives passed emergency legislation to extend the life of Terri Schiavo. Schiavo's parents have run out of legal options in Florida courts, and there is no legal jurisdiction for a federal court to take the case. At least, there wasn't until now. Under the bill adopted by the Senate Sunday and the House this morning, a single federal court in Florida will be granted jurisdiction to hear a lawsuit "on behalf of Theresa Marie Schiavo for the alleged violation of any right of Theresa Marie Schiavo under the Constitution or the laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life."

Senate Majority Leader Bill Frist called the measure "a unique bill passed under unique circumstances that should not serve as a precedent for future legislation." Now, where have we heard that before? Oh, right, it was in <a target= "new" href=" another case from Florida in which Republicans chose political expediency over their oft-proclaimed faith in federalism. When Republicans on the U.S. Supreme Court stopped the vote count in 2000 and handed the presidency to George W. Bush, they warned that their intrusion into a matter traditionally left to the states was based on legal reasoning "limited to the present circumstances." As in Bush v. Gore, Republicans backing federal intervention in the Schiavo case have to go out of their way to say they're not setting precedent because they're trapped by their own political interests into doing that which they would usually abhor. In Bush v. Gore, Republican Supreme Court justices anxious to put Bush in the White House had no choice but to embrace an equal protection argument they otherwise would have rejected out of hand. In the Schiavo case, Republicans in Congress anxious to appease the religious right have no choice but to ignore the tenets of federalism they usually trumpet. Their message in both instances: We're doing this now because we can, but don't expect to get away with it yourself if the shoe is ever on the other foot.

Bush will sign the legislation this morning, and the administration is eager to put its best "compassionate conservative" spin on it. "We ought to err on the side of life in a case like this," White House spokesman Scott McClellan said over the weekend. "I think most people recognize that this case involves some extraordinary circumstances."

Oh, yes. We're certain that George W. Bush and and each and every one of the other Republicans who scrambled back to Washington from God-knows-where for this weekend's macabre political theater did so solely out of concern for the life of Terri Schiavo. We're sure that, when Tom DeLay went off about Schiavo's "murder," he did so without any thought of scoring cheap political points off of her family's tragedy. But if you're one of those awful cynics who would raise a question about politics at a moment such as this, you might be interested in the memo that was distributed to Republican senators late last week -- the one that calls the Schiavo case a "great political issue" for the GOP. As ABC News and the Washington Post reported, the memo reminded senators that their "pro-life base will be excited that the Senate is debating this important issue."

We're glad someone is.

Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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