Judicial activists killed Terri Schiavo, and they will pay.
That's the message House Majority Leader Tom DeLay delivered a few minutes ago in his statement on the death of Terri Schiavo. DeLay said that Schiavo died because the legal system did not protect her; then he declared that "the time will come for the men responsible for this to answer for their behavior."
Although DeLay sounded as if he was rounding up a posse for a lynching, a spokesman was quick to clarify that DeLay meant only that he was disappointed that federal judges hadn't followed what he thought were the orders Congress gave them. But DeLay's allies on the religious right -- when they're not declaring Schiavo a "martyr" and the state court judge who ordered the removal of her feeding tube "the enemy" -- have begun to provide some clues about the sort of retribution they might visit upon the federal judiciary.
While the Schiavo case will undoubtedly fire emotions on both sides of the debate over George W. Bush's judicial nominees, changing the partisan makeup of the courts wouldn't have extended Terri Schiavo's life. As we've noted before, 13 of the 22 federal judges who've had a hand in the Schiavo case were appointed by Republican presidents. Antonin Scalia and Clarence Thomas and five other Republican appointees on the Supreme Court declined to involve themselves in the case. A majority of the Republicans on the U.S. Court of Appeals for the 11th Circuit repeatedly denied appeals by Terri Schiavo's parents, and a conservative Republican judge appointed by George H.W. Bush argued -- eloquently and persuasively -- that Congress and the president trampled on the Constitution when they adopted emergency legislation in an attempt to force the courts to "save" Schiavo.
Thus, while partisans on the religious right, infuriated by Schiavo's plight, will surely fight hard for Bush's judicial nominees in coming months, they appear to be coming to terms with the idea that they're going to have to do a lot more than that.
Appearing on CNN this morning, Focus on the Family's James Dobson seemed to suggest that Congress reconsider the entire structure of the federal judicial system. Noting that the Constitution created the Supreme Court but left Congress with the authority to "ordain and establish" the lower courts, Dobson said members of Congress have "all sorts of power in dealing with the courts, but they haven't had the political gumption to do it." For example, Dobson said, Congress could simply "take away the franchise" of the left-of-center U.S. Court of Appeals for the Ninth Circuit "and then reestablish it the next day," presumably with more conservative judges in place.
As outlandish as Dobson's suggestion may be, the religious right doesn't have much in the way of other options. While it is theoretically possible to impeach federal judges for the decisions they make, where would the Republicans start? With the seven Republican appointees on the Supreme Court who didn't step in to save Schiavo? In fact, Congress has never impeached a federal judge on the basis of the judicial decisions he or she made, and it seems unlikely that the public -- which is aligned with the judiciary in the Schiavo case -- would support such an extreme move now. As Chief Justice William Rehnquist explained in his year-end report for 2004, the precedent on the impeachment of federal judges was set 200 years ago, and under it, "a judge's judicial acts may not serve as a basis for impeachment." Rehnquist argued that "any other rule would destroy judicial independence -- instead of trying to apply the law fairly, regardless of public opinion, judges would be concerned about inflaming any group that might be able to muster the votes in Congress to impeach and convict them."
That may be exactly what Tom DeLay and James Dobson want, but it's not what the Founding Fathers had in mind.