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

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.

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.

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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.

In a 1990 right-to-die case, Chief Justice William Rehnquist wrote for the five-justice majority: "It cannot be disputed that the Due Process Clause [of the Constitution's 14th Amendment] protects an interest in life as well as an interest in refusing life-sustaining medical treatment."

But while the high court has established a constitutional right to refuse medical treatment and a right to abortion, it has never spelled out the contours of a constitutional right to life. The Schiavo case was seen by some as a possible battleground to do just that, perhaps to the detriment of abortion rights. But the courts refused to get involved.

"What is driving this case is not the constitutionality of the federal [Schiavo] statute, or the intrusion on federalism," says John Eastman, a constitutional law professor at Chapman University School of Law in Orange, Calif. "The underlying connection with abortion is driving this."

But Professor Eastman says a pro-life ruling in the federal courts would not amount to a conservative version of judicial activism. Rather, he says a right-to-die, pro-abortion approach to constitutional law has inverted the principles of the Founding Fathers."It turns what is supposed to be a government devoted to protecting rights to life, liberty, and the pursuit of happiness [into a government that enforces] a court-crafted right to die," he says.

But even if the courts declined to read a broad, substantive right to life into the Constitution, some legal analysts say the Schiavo case was strong enough to justify more judicial review than was received. One issue: whether the Florida court acted in violation of federal due process rights.

Florida law requires that Schiavo's wish to have her feeding tube disconnected be proved by "clear and convincing" evidence. Lawyers for Schiavo's parents argued that hearsay testimony of husband Michael Schiavo and others about statements that they say Ms. Schiavo made in the late 1980s does not rise to the evidentiary level necessary to pass constitutional muster. They also argued that a federal judge in Tampa had a sworn duty under the new federal law passed by Congress to conduct a new and full trial to examine for himself whether the evidence was clear and convincing.

Instead, US District Judge James Whittemore framed the entire federal case as an application for a temporary restraining order to reinsert the feeding tube. He declined to order the tube reinserted after ruling that lawyers for Schiavo's parents had failed to raise any substantial claims.

Some analysts say that in bypassing the letter of the Schiavo law, Judge Whittemore's judicial inaction became a form of judicial activism.

"What we usually hear of judicial activism is a judge finding some right in the Constitution that isn't there. In this case, it was a statute that clearly was there but was being ignored," says Wendy Long, a former law clerk to Supreme Court Justice Clarence Thomas and counsel to the Judicial Confirmation Network, which supports Mr. Bush's judicial nominees. "The court, in a sense, was making a policy decision that it didn't want to look at the issue that Congress and the president wanted it to look at."

Others praise Whittemore's approach. "If one was looking for a model of a district court judge to have been given this assignment, I think we found one," says Douglas Kmiec, a constitutional law professor at Pepperdine University School of Law in Malibu, Calif. "He understood that it was both an emotionally charged issue but also one that arose in the context of a preexisting constitutional structure and a preexisting body of law."

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