Terri Schiavo and the fight over Bush's judges

If the solution to an "out of control" federal judiciary is the appointment of more Republican judges, the Schiavo case doesn't provide much evidence of it.

By Tim Grieve
Published March 24, 2005 1:50PM (EST)

The Republicans and their allies on the religious right have already begun using the Schiavo case as ammunition in their war over judicial nominees. How far they'll go with it is hard to know -- especially if the public continues to oppose congressional intervention in the Schiavo case.

As the Los Angeles Times reports this morning, conservative law professors -- the kind of voices on which the White House can usually rely in fighting for its judicial nominees -- are saying that the Republican Party overreached in the Schiavo case and may have hurt its credibility in the fight over judicial nominees. "Congress' desire to get a particular outcome led it to invite the courts to be activist, and the judges have properly refused," Douglas Kmiec, a Pepperdine University law professor who served in the administrations of Ronald Reagan and George H.W. Bush, told the Times. "Unfortunately, I think it weakens the principled position that the Republicans have been taking up until now. We have the Congress of the United States acting as if they can disregard the Constitution in its entirety to get the result it wanted." Perhaps nervous of such a negative spill-over effect, an aide to Senate Majority Leader Bill Frist tells the New York Times that there's "no link" between the Schiavo case and George W. Bush's judicial nominees.

But others on the right are eager to make the connection. The Rev. Jerry Falwell says the Schiavo case tells Americans all they need to know about the judicial system today. "Just because there is a judge somewhere in the world who would give an estranged husband like that the time of day tells you how bad the court system is," Falwell told the Times. A spokeswoman for the Judicial Confirmation Network, a group supporting the confirmation of Bush's nominees, tells the Financial Times that the Schiavo case will remind the public of its unhappiness "about a judiciary that appears to be running away and acting on its own, without any restraints on it."

But before the right goes too far down the road of outrage over "judicial activists" who have ruled against Terri Schiavo's parents, it ought to take a head count of the federal judges who have had an opportunity to rule on the case so far. The U.S. Supreme Court declined to intervene in the case before Congress involved itself. Among the nine justices on the Supreme Court, seven were appointed by Republican presidents, just two by Democrats. After Congress intervened in the Schiavo case over the weekend, the case was heard by one U.S. District Court judge, a Democratic appointee. Then 12 judges on the U.S. Court of Appeals had had their say -- six appointed by Democratic presidents, six by Republicans. All together, then, 22 federal judges have had a hand in bringing the Schiavo case to where it is today. Thirteen of them were appointed by Republicans; just nine were appointed by Democrats. If the solution to an "out of control" federal judiciary is putting more Republican nominees on the bench, then the Schiavo case -- like the legal disputes over gay marriage -- isn't much evidence of that.

The right will also be hard-pressed to argue that Senate Democrats' "obstruction" of Bush's judicial nominees has had any bearing on the Schiavo case. There are no pending Bush nominees for either the Middle District of Florida. While Democrats have thus far blocked a vote on Bush's nomination of William Pryor to the 11th Circuit, he is serving there already as a result of Bush's controversial recess appointment. And while Bush may someday soon have the opportunity to appoint justices to the Supreme Court, he hasn't had the chance yet. Thus, even if Democrats in Congress had confirmed every judge Bush has nominated to date, there would have been no change in the judges who considered the Schiavo case -- or the outcome of it so far.

Tim Grieve

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

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