Anger Likely to Shift to Judiciary

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Times Staff Writer

Conservative lawmakers’ denunciations of the courts on Thursday signaled that Terri Schiavo’s death was likely to escalate the war between the parties over President Bush’s judicial nominations.

House Majority Leader Tom DeLay (R-Texas) and Sen. Rick Santorum (R-Pa.) -- two leading advocates of congressional intervention in the case -- criticized the state and federal courts involved following the death of the Florida woman.

“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, but not today,” he said, referring to the judges.


Santorum called repeated decisions by courts that blocked efforts to keep Schiavo alive “unconscionable.”

Her death may also intensify conservatives’ demands that Senate Republicans rewrite the chamber’s rules to eliminate the Democratic filibusters that have blocked confirmation of some of Bush’s federal judicial nominees. Critics call that the “nuclear option.”

The Schiavo case “will animate and bring more emotion into the view held by many conservatives already that the courts are rewriting the Constitution to suit their own value system,” said Gary Bauer, a social conservative activist. “The case provided an additional spur, if they needed any, to move ahead” with prohibiting filibusters for judicial nominees.

Yet Democrats and their allies believe Schiavo’s death simultaneously weakens the GOP hand in that dispute. Democrats are preparing to link the Republican move against filibusters with Washington’s last-minute effort to require additional judicial review in the Schiavo case -- a step polls showed was opposed by a large majority of Americans.

Rewriting Senate rules “would be yet another demonstration of the fact that if Republicans don’t like the rules, they are prepared to change the rules,” said Jim Manley, a spokesman for Senate Minority Leader Harry Reid (D-Nev.).

Many of the leading figures in the political debate over Schiavo limited their comments Thursday largely to comforting her family.


Senate Majority Leader Bill Frist (R-Tenn.), a surgeon who faced criticism for appearing to second-guess the diagnosis of doctors in the case, said that he would “pray for her mother and father, her family and all those involved in this regrettable loss of life.”

The president was slightly more expansive, urging “all those who honor Terri Schiavo to continue to work to build a culture of life.”

Sen. Edward M. Kennedy (D-Mass.) issued a statement consoling the family, but condemning DeLay’s statement as “irresponsible and reprehensible.”

Kennedy implied that DeLay was inciting violence against judges and called on him to make clear he was not. Dan Allen, DeLay’s spokesman, described Kennedy’s charge as “absolutely over the top [and] unbelievable.”

Strategists in both parties were left to wonder about the political implications of a case that has dominated media attention for two weeks. The consensus is that the dispute’s specifics are likely to fade for most voters before the midterm elections in 2006 and the 2008 presidential race.

Yet the controversy may reverberate in other ways.

The House’s initial response to the Schiavo case was to pass a bill offering a right for review in federal courts in all cases when the family cannot agree on care for “incapacitated individuals.” But the Senate rejected that broader approach, insisting on legislation affecting only the Schiavo case.


If conservatives now press the Senate to reconsider, they may face an uphill battle, especially after the polls found strong public opposition to Washington’s intervention in the Schiavo case.

The first measure of Senate interest should come on Wednesday, when the Health, Education, Labor and Pensions Committee conducts a hearing to explore these issues. Craig Orfield, spokesman for the Republican majority, said the committee was “just beginning the dialogue ... about whether there is a need for legislation.”

The next impact may be felt if Frist and other Republican leaders launch the bid to change Senate rules to prevent filibusters from being used to thwart judicial appointments.

It takes 60 votes to break a filibuster. Although most of Bush’s judicial nominees have won confirmation, Democrats have used the filibuster, or the threat of one, to block 10 who they charged were too conservative.

Without a filibuster, the judges would win confirmation with 51 votes.

Critics call this procedural change “the nuclear option” because it would end the right to unlimited debate that has characterized the Senate since the very first Congress -- and could also provoke Democratic retaliation that stalls action in the chamber.

Many observers agree with Bauer that the federal courts’ refusal to order the reconnection of Schiavo’s feeding tube probably will engage social conservatives more deeply in the judicial battle, even though Republican-appointed judges provided critical support for the key decisions in the case.


Conversely, Senate Democrats and their allies now may be more likely to cite the Schiavo case to support their effort to block some of Bush’s most conservative appointments.

“I think it has tremendously strengthened the idea that you need an independent judiciary,” said Ralph G. Neas, president of the liberal group People for the American Way.

The case’s longer-term political impact may pivot on whether some voters are antagonized by the influence of religious conservatives within the GOP that was demonstrated by the Schiavo case.

The controversy aggravated long-standing but recently dormant tensions inside the Republican party.

Libertarian conservatives, such as Grover Norquist, president of Americans for Tax Reform, portrayed Washington’s intervention as a violation of Republican efforts to reduce the size and reach of the federal government.

The case also reinforced the concerns of GOP social moderates that the party has identified too closely with the agenda of religious conservatives on a broad range of issues, from a constitutional amendment to ban gay marriage to the imposition of strict limits on public support for embryonic stem cell research.


The most pointed critique along these lines came from John C. Danforth, a former Republican senator from Missouri who served as Bush’s U.N. ambassador during his first term. In a New York Times op-ed piece this week, Danforth charged that with initiatives such as the Schiavo legislation, “Republicans have transformed our party into the political arm of conservative Christians.”

Yet given the central role that evangelical Christians and other religious conservatives play in the GOP coalition, many experts doubt that the concerns expressed by Danforth and others would have much impact.

A post-election survey by the University of Akron found that Bush received 40% of his vote in November from evangelical Protestants; traditionalist Catholics, who often hold conservative views similar to evangelicals on political issues, provided another 8%. By contrast, Bush received about 25% of his vote from mainline Protestants, the party’s historic base, who tend to take more moderate positions on social issues.

“Evangelicals and other traditional Christians are too big a piece of the GOP base to ignore,” said John C. Green, a political scientist at the University of Akron who specializes in religion and politics.