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Schiavo case heats up Senate's brewing conflict over judicial nominations

WASHINGTON—The legal struggle over whether to keep Terri Schiavo alive is blazing a direct political path from her hospice bed to the U.S. Senate's next confrontation over President Bush's judicial nominees.

With back-to-back refusals by federal judges to reinsert a feeding tube into the severely brain-damaged woman, religious conservatives are portraying Schiavo as a potent symbol in their drive for more socially conservative judges and for a socially conservative majority on the Supreme Court.

Likewise, liberal groups say the decisions by a federal judge in Florida and an appellate court in Atlanta not to second-guess rulings by Florida courts illustrate the need for an independent judiciary that's willing to stand up to Congress.

The Schiavo case already had political undercurrents. It rallied Christian conservatives and anti-abortion forces, prompting the Republican-dominated Congress to intervene with extraordinary legislation to thwart a state court's order that Schiavo's feeding tube be removed.

But in throwing the case into federal court, the Republicans in Congress put their faith in a branch of government that conservatives love to disparage. The court decisions Tuesday and Wednesday only fueled that hostility.

"The greatest blessing is that people are realizing that the court system in America has dictatorial control over too many people's lives," said the Rev. Louis P. Sheldon, the head of the Traditional Values Coalition. "This is a precursor to what I believe is going to be happening when there is a vacancy on the Supreme Court."

Tony Perkins, the president of the religious conservative Family Research Council, said the Schiavo case "clearly will have implications for the increasing debate over the role of the courts in public policy. It certainly does increase the debate over whether or not the courts have overstepped their bounds."

Liberals and Democrats, citing opinion polls that show broad opposition to Congress' intervention in the case, portray this week's court rulings as examples of judges properly using their authority to block congressional overreach.

"This shows exactly what conservatives, especially social conservatives, want from these judicial nomination battles: They want judges who will do their bidding," said Seth Rosenthal, the legal director at the liberal Alliance for Justice.

What's more, the argument that the Schiavo case is an appropriate symbol for a judicial-confirmation debate could backfire with some Republicans and small-government conservatives who've bristled at Congress' decision to step into what they consider a personal or states' rights issue.

The showdown over judges could come as early as April, when Congress returns from its Easter recess. Earlier this year, Bush resubmitted seven appellate-court nominees whom Senate Democrats blocked during his first term. The first of the seven, William G. Myers III, cleared the Senate Judiciary Committee last week and is ready for a vote by the entire Senate.

Senate Majority Leader Bill Frist, R-Tenn., has threatened to strip Democrats of their ability to block judicial nominees by the extended debate known as a filibuster, which requires a 60-vote majority to end. Each of the nominees whom Bush sent back to the Senate was unable to get enough votes to overcome Democratic filibusters, the first time they've been used to block appellate court judges.

Frist could end a filibuster simply by getting a favorable ruling from the chair, which would be occupied either by another Republican senator or by Vice President Dick Cheney. Democrats would challenge the ruling, at which point it could be affirmed by a simple majority of the Senate. There are 55 Republicans, 44 Democrats and one independent in the Senate.

Last week Frist telephoned Christian conservatives and described the Senate's efforts to intervene in the Schiavo case, promote a "culture of life" and confirm "good judges," though he didn't directly link the topics.

"I'm also committed to overcoming the minority's filibuster and restoring this 220 years or more of Senate tradition and history," Frist said, according to a recording made by Americans United for Separation of Church and State. "The minority broke the tradition, they violated the founders' intent and we will bring the president's nominees up for a vote and we will confirm them."

Democrats argue that the tradition of minority rights is on their side, the threat of filibusters encourages compromise and removing the filibuster on judicial nominations could open the door to more Republican efforts to strengthen their hand.

Removing the use of filibusters probably would set the stage for the biggest judicial fight of Bush's presidency: filling a vacancy on the Supreme Court. Though none of the nine justices has announced any intention to leave, Chief Justice William Rehnquist's battle with thyroid cancer has prompted widespread speculation that he could decide to retire when the court's current term ends in June.

The Schiavo case, however, also illustrates that ideology isn't always a good barometer of judicial performance. Edward Carnes, one of the two appellate judges who refused to reinsert the feeding tube Tuesday, faced fierce Democratic opposition in the Senate in 1992 when former President George H.W. Bush appointed him.

Foreshadowing today's battles, Carnes also faced a filibuster threat. He was confirmed with 62 votes.

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(c) 2005, Knight Ridder/Tribune Information Services.

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