The legal struggle over the fate of Terri Schiavo is exposing what some see as a credibility gap for the Bush administration, Republicans in Congress and social conservatives who want to rid the federal judiciary of so-called activist judges and even strip them of authority.
In the Schiavo case, President Bush and congressional Republicans exhorted the judiciary to intervene, having passed extraordinary legislation over the weekend giving her case a day in federal court. The maneuver expanded rather than contracted federal power, and appeared to encourage the sort of activism that they had long condemned.
As lawyers for the parents of the brain-damaged woman continued their race through the federal courts late Wednesday in what appeared to be an increasingly long-shot effort to save her life, the legal wrangling is even giving pause to some conservative legal scholars.
Several say the federal courts, by refusing to intervene in the Schiavo case, have so far exercised admirable judicial restraint. And some say the move could undermine conservative efforts to reshape the federal bench, a campaign that is expected to soon come to a head in the Senate.
“Congress’ desire to get a particular outcome led it to invite the courts to be activist, and the judges have properly refused,” said Douglas Kmiec, a professor of constitutional law at Pepperdine University School of Law, and a former Justice Department official in the Reagan and first Bush administrations.
Harvard law professor Charles Fried, another Justice Department official under Reagan, accused Bush and congressional Republicans of backsliding on their long-standing commitment to states’ rights.
In their intervention in the Schiavo case, the Republicans embraced “the kind of free-floating judicial activism, disregard for orderly procedure and contempt for the integrity of state processes that they quite rightly have denounced and sought to discipline for decades,” Fried wrote in the New York Times.
The defenders of the last-ditch moves said they saw no contradiction, and asserted that Congress was acting within its power in an unusual case of singular importance. Federal courts have long played a role backstopping the state courts to review possible injustices, they argued.
The Schiavo appeal is not a question of activism, said John Eastman, a professor at Chapman University law school, who said he was nonetheless disappointed at the short shrift the federal bench had given the case. " It is a little lack of courage,” he said.
The administration and congressional Republicans in recent years have voiced a much less tolerant, and occasionally hostile, view of the jurisdiction of federal courts.
The Republican Party platform adopted at the GOP convention last summer suggested that Congress strip courts of their authority to hear cases when they were “abusing their power” with rulings on such issues as abortion and display of the Ten Commandments.
Though some legal experts believe such moves violate the principle of separation of powers under the Constitution, the authors of the platform statement said they were needed to restore balance to the federal courts.
“The sound principle of judicial review has turned into an intolerable presumption of judicial supremacy,” the statement reads, decrying the effect of “scores of judges with activist backgrounds in the hard-left.”
Last year, the House, with strong administration support, passed legislation that would bar federal courts from hearing cases involving the legality of same-sex marriage. Its GOP sponsors said the measure was intended to prevent federal judges from ordering states to recognize same-sex marriages that were permitted in other states. The legislation died in the Senate.
Republicans have also taken the lead in recent years in championing the rights of states to resolve a wide variety of legal disputes without being second-guessed by the federal government.
Their view has been that even flawed decisions of state judges and court proceedings should be respected as long as there was no evidence of egregious misconduct.
A prime example has been in death penalty appeals. Congress in 1996 imposed limits on the ability of federal courts to review petitions from prisoners on death row.
In the Schiavo case, critics say that after years of review, it is hard to argue that her family did not receive an adequate hearing in the Florida courts, at least by the standards that Congress has set in other cases where it has taken a hands-off approach to state-court actions.
They question whether the steps Bush and Congress have taken to keep the Schiavo case afloat in federal court belie an ideological bias.
“I could not imagine [House Majority Leader] Tom DeLay interrupting an Easter recess to come back for special legislation because there was a possibility that someone on death row was innocent,” said Louis Michael Seidman, a professor at Georgetown Law School in Washington.
Fried called the law a blatant attempt to frustrate the will of Florida state law, and marked an “absurd departure from principles of federalism.”
The Schiavo case comes as the Senate gears up for a fight over a score of nominations President Bush has made to the federal bench.
Senate Democrats previously blocked many of the nominees, saying their views were too extreme. Bush has praised the nominees as reasoned jurists who strictly interpret the law, and has attacked Democrats for using procedural tactics to prevent floor votes on the nominees.
What bearing, if any, the Schiavo episode may have on that process is far from clear. But some experts say that Republicans may have lost credibility in the debate by sending conflicting signals about the kinds of the judges they truly desire.
“Unfortunately, I think it weakens the principled position that the Republicans have been taking up until now,” said Kmiec, the Pepperdine law professor, who calls the new law unconstitutional.
“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.”