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Judicial aftershocks from the Schiavo case

Perceptions of how the courts handled the case could have ramifications for Bush's judicial nominees.

By Staff writer of The Christian Science Monitor / April 4, 2005



WASHINGTON

In the end, as Terri Schiavo clung to life in her Florida hospice after nearly two weeks without food or water, 12 years of legal battles came down to one final appeal.

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In a 15-page emergency brief, lawyers asked the US Supreme Court to vindicate Ms. Schiavo's constitutional right to life. The high court's answer came Wednesday around 11 p.m. Application denied.

Ten hours later, Schiavo passed away.

In the emotional moments after the announcement, pro-life and disability-rights supporters lashed out at a judicial system that they said was being run by activist judges who favor death over life.

House majority leader Tom DeLay went one step further. "The time will come for the men responsible for this to answer for their behavior," he said Thursday. He called upon the Judiciary Committee to launch an investigation of what he says is "an arrogant, out-of-control, unaccountable judiciary that thumbed their nose at Congress and the president."

But was the Schiavo case influenced by so-called "activist" judges who allowed their ideological convictions and policy preferences to overshadow the law and influence the outcome of the case? Legal analysts are divided on the issue.

Perceptions of how the Schiavo case was handled are important - for one, because they could play a key role in looming battles in the US Senate over President Bush's judicial nominees, and a potential Supreme Court vacancy. Those battles may begin as early as this week, with the conservative camp somewhat split over the propriety of congressional intervention in the Schiavo case.

Religious conservatives are angry and primed for a fight. But many other conservatives were alarmed at what they saw as federal intervention into a private family matter that has historically been entrusted to state courts and state judges.

Many legal analysts say that for the most part, judges performed their duties as neutral, dispassionate arbiters of the law.

"An enormous spotlight and an enormous amount of pressure have been placed upon the judiciary, and yet they have behaved in a lawlike fashion," says Charles Baron, a Boston College law professor and expert in right-to-die issues. "These judges, if you look at their record, are not people who have records as being right-to-diers or left-wing activist judges. These are people who wrote opinions that track the law."

But others say that some judges appear to have avoided confronting serious, substantive legal issues by relying on formalistic devotion to legal process.

"The judiciary, both state and federal, have failed miserably in the Schiavo case," says Virginia Armstrong, national chairman of the Eagle Forum's Court Watch. "It is one of the poorest performances we have ever seen in American justice."

Supporters of the judiciary's performance in the Schiavo case note the large number of state and federal judges involved. They say familiar conservative-liberal distinctions do not seem to have played a major role in the outcome, particularly at the 11th US Circuit Court of Appeals, where seven of the 12 judges were appointed by Republican presidents.

"It is not like the judges appointed by one kind of president are voting one way and judges appointed by a different kind of president are voting a different way," says Vikram Amar, a constitutional law professor at San Francisco's Hastings College of the Law.

Perhaps the biggest irony of the case was the extent to which conservative, pro-life lawyers acting on behalf of Schiavo's parents sought to persuade federal judges and justices to embrace an expansive constitutional right to life that would mandate affirmative steps to protect Schiavo's life. According to some analysts, it would have necessitated the same kind of liberal reading of the Constitution that upheld a right to abortion in Roe v. Wade - a constitutional holding denounced by conservatives as the epitome of judicial activism.

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