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Battle over Schiavo reveals split between conservatives

WASHINGTON—The inflammatory politics of the Terri Schiavo case exposed deep fault lines between conservatives that could have an impact on President Bush's agenda on Capitol Hill, including future battles over judgeships.

Within minutes of Schiavo's death on Thursday, social and religious conservatives vowed to crusade against federal judges who refuse to intervene in such cases and to seek legislation to protect incapacitated patients.

House Majority Leader Tom DeLay, R-Texas, who led the fight for the bill that failed to get federal judges to reconsider the Schiavo case, blasted "an arrogant, out-of-control judiciary that thumbed its nose at Congress."

"The legal system did not protect people who need protection most, and that will change," DeLay pledged in a statement. "The time will come for the men responsible for this to answer for their behavior."

But conservatives who focus on economic issues and limits on federal power took the opposite approach, pointing to Americans' overwhelming opposition to Congress and Bush's intervention in the Schiavo case. Several polls showed public opposition to federal intervention in the 70 percent to 82 percent range.

"For Republicans, this was an epiphany—many I know were stunned by the public rejection of what Congress did," said Stephen Moore, who heads the Free Enterprise Fund, a lobby devoted to tax cuts, open markets and small government.

"The lesson for Republicans is that voters are deeply skeptical about the use of federal power in an area generally left to families and states," Moore added. "And that's really a conservative position."

The division between social conservatives, who oppose abortion and gay marriage as top priorities, and both economic and "process" conservatives, who want to restrain the power of government, had largely been papered over during last year's election, when their common objective was to re-elect Bush.

But the Schiavo case changed that, many political experts said Thursday.

"The divisions have never been defined more explicitly," said David Davenport, a research fellow at the Hoover Institution, a conservative think tank in Palo Alto, Calif.

While religious conservatives pushed for intervention in the case, former Solicitor General Charles Fried, who served in the Reagan administration, complained that Congress was going too far.

Former Sen. John Danforth, a Missouri Republican and Episcopal priest, warned in a New York Times essay Wednesday that the GOP's "current fixation on a religious agenda has turned us in the wrong direction."

Unlike Republicans, many Democrats steered clear of the Schiavo controversy. A typical reaction came from Sen. Bill Nelson, a Florida Democrat who'll face voters in 2006, who said the case showed "the importance of filling out a living will."

The best hope for Republicans is that the people who care most about this case—social conservatives—will remember, and "the people who have a more casual view will forget in a few months," said Ross Baker, a Rutgers University expert on Congress.

One consequence is that Congress may wrestle with the complex issue of whether incapacitated people should have new federal rights in cases of family disputes with no written instructions from the invalid.

House GOP leaders vowed Thursday to pursue such legislation. Sen. Mel Martinez, a Florida Republican and sponsor of the Schiavo legislation, said he may work on a bill with Sen. Tom Harkin, an Iowa Democrat and advocate for the disabled.

But they may not get far.

"They may hold hearings, but this is a difficult one for Congress to take on, and may interfere with the rest of the Bush agenda," Baker said.

The principle of federalism and the legal tradition that issues of rights to life and death are largely matters for state law give some Republicans pause. And state laws are so detailed, from guardianship to consent issues, that Congress may have a narrow range in which to act, said Mary Cheh, a George Washington University law professor.

"They could give federal courts general jurisdiction to hear due process claims stemming from disputes in lower courts," Cheh said.

Moore predicted that the divisions exposed by the Schiavo controversy won't derail Bush's agenda for overhauling the tax code and Social Security, but said it could add an unpredictable element to the coming battle over federal judges.

He and Baker noted that a series of conservative federal judges refused to intervene in the Schiavo case. Some of those judges even criticized Congress and Bush for ignoring the Constitution's separation of powers.


(Davies reports for The Miami Herald. Knight Ridder Newspapers correspondent Stephen Henderson contributed to this report.)


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

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