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Schiavo case offers dramatic lesson in government, politics, rule of law

WASHINGTON—It was Alexander Hamilton, writing in 1788 to urge ratification of the Constitution, who perhaps spelled out best why federal courts halted interference by Congress this week in the Terri Schiavo case.

Independent judges, Hamilton said in Federalist No. 78, "guard the Constitution and the rights of individuals from the effects of those ill humors, which ... have a tendency to occasion dangerous innovations in the government."

He could have been writing about Congress' decision last weekend to write a special law trying to overturn Florida court rulings in the Schiavo case. Aside from being a sad story of one family's torturous decisions, Schiavo's case offers a dramatic lesson in government, politics and the rule of law that Hamilton and the other founding fathers held so sacred.

Congress, a political body responsive to emotion and zeal, tried to reopen a question settled in Florida's courts. Over a frenzied weekend, legislators second-guessed eight years of complex litigation, trying to undo the decision that Schiavo's rights and wishes were best entrusted to her husband.

Enter the federal courts, faithful to their constitutional role as dispassionate arbiters of the law. They struck down the politicians' feverish exertions with a legal lightning bolt. Twenty federal judges took less than 48 hours to assert that the federal government has no role in the case. The nine justices of the Supreme Court—dominated by conservatives—climaxed the thunderclap of judicial authority by affirming that conclusion in a one-page order.

"This is a good example of how things are supposed to work," said Greg Coleman, a former Texas solicitor general and clerk for Justice Clarence Thomas. He now heads the appellate practice at the law firm of Weil, Gotshal & Manges. "The law is not always aligned with public outcry, but the law is what matters in court, and we hope for judges who will apply the law in a principled way. I think that's what happened here."

The founders thought deeply—and argued quite a bit—over how the three branches of government should be structured and how their powers should check one another. The court was designed as an independent branch, its members selected by politicians but serving for life, to free them from political backlash.

In this instance, however, it may have been Congress that was out of step with the will of the people. Opinion polls show that 70 to 82 percent disapprove of Congress' eleventh-hour intervention in the Schiavo case. A CBS poll suggests that overall public approval of Congress dropped this week to 34 percent, its lowest level since 1997.

Some analysts say the issue could backfire on Republican lawmakers, as the conservative court's emphatic declaration of what the law requires enhances the court's stature while eroding public faith in the judgment of Congress.

"Up until now, you've seen the Republican leadership be pretty successful with their crusade against what they call activist judges who don't follow the law," said David Garrow, a court historian and Emory University law professor. "But they just shot themselves in the foot, and may have made the public believe that they're the ones unwilling to follow the law. It's not just that most people disagree with what they did, it's the intensity of their disagreement."

Garrow said the misstep could hurt congressional efforts to limit judicial discretion. And it could limit President Bush's choices if he tries to name a "true believer" to replace Chief Justice William Rehnquist, who's expected to retire soon.

"Whoever's nominated is going to get asked a lot of questions about Terri Schiavo, and whether they endorse judicial independence," Garrow said. "There are a number of judges reportedly on the short list who would look rather uncomfortable in that role."

One of the more striking aspects of judicial independence on display this week was the diverse political pedigrees of the judges who reviewed the case yet decided it with near unanimity.

Republican presidents appointed more than half the judges who said the federal government must stay out of the matter. Each reached essentially the same conclusion: that while Bob and Mary Schindler's efforts to save their daughter were gut-wrenching and understandable, they had no case in federal law.

Florida courts determined over eight years that Schiavo's husband, Michael, was empowered to execute what he said was her wish to refuse medical treatment that would prolong her life in a persistent vegetative state. That decision survived several challenges before Florida's Supreme Court and the U.S. Supreme Court before Congress forced another federal review this week.

"There is no denying the absolute tragedy that has befallen Mrs. Schiavo," 11th U.S. Circuit Appeals Court Judges Ed Carnes and Frank M. Hull said in their order Wednesday. "We all have our own family, our own loved ones, and our own children. However, we are called upon to make a collective, objective decision concerning a question of law."

In all, only two federal judges—one Democrat, one Republican—said they'd reconnect Schiavo to feeding tubes while they weighed her parents' claims.

"This is a situation in which, I think, by any fair reading of the Constitution and the statute, the courts were right," said Mark Tushnet, a Georgetown law professor whose most recent book is about the politics of the court. "And the case for judicial intervention gets weaker as you go higher. At the Supreme Court level, there's just no reason for them to get involved. In Bush v. Gore," in which the high court halted Florida's recount of ballots in the 2000 presidential election, "at least they had the excuse of having the future of the nation at stake. You don't even have that here."

Republican members of Congress reacted to the Supreme Court's decision Thursday with a mix of resignation and anger, but no further legislation.

Tony Perkins, the president of the religious conservative Family Research Council, which backed Schiavo's parents, said the courts' action signaled a bigger problem.

"They're far removed from the people, and they're intended to be that way. But there is this elitism that tends to permeate the court," Perkins said. "This started out as a dispute between Terri's parents and Michael Schiavo, but the lasting dispute is going to be between Congress and the courts."


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

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