Monday, March 28, 2005

The Game Behind the Curtain

It appears that, in accordance with her wishes, Terri Schiavo's body will finally be allowed to die. This event was not accompanied by the dignity that she surely would have wished for, but nevertheless, the farce is ending. Surely, it is time.

But, though the body may pass, the issue clearly will continue to resonate as we move into the future. The rhetoric and demagoguery on display these past weeks have developed a self-sustaining momentum that will continue to energize those who battled on behalf of the Schindlers. The family itself may drop out of the spotlight, but those who thrust themselves into it will not let this fleeting moment easily pass. Instead, they will revive Terri as a martyr and invoke her name in service of whatever cause brought them out of hiding in the first place. The question now is where will all of this lead?

I have suspicions.

One of the most interesting aspects of this entire affair has been the wording of the law passed by Congress last week. While there was a lot of sound and fury surrounding this law's passage, ultimately it did no more than magnify the controversy. The reason for this is that they failed to require that the federal courts impose a temporary restraining order against the removal of the feeding tube. As Mark Kleiman notes:
The original bill as drafted by Sen. Martinez provided that the court "shall" grant a stay. At the suggestion of Sen. Levin, that was changed to "may." But the final text of the bill as passed omitted that provision entirely, and provided that relief should be given "after a determination of the merits." That led both the district court and the appellate majority to decide that the usual rules about TRO's applied.
Of course, without the TRO, there was never a chance that the Schindlers would eventually prevail. In fact, the TRO was inarguably the most critical issue facing the Schindlers once the feeding tube had been removed. Without it, Terri Schiavo's body would die before the federal courts could rule on the merits of their case.

If Congress was, in fact, serious about a federal review of the case, their failure to require a TRO was an amazing oversight. That would be quite a failure for a group that makes a living passing laws, is overwhelmingly comprised of former practicing lawyers, and has at its disposal enormous resources to determine the likely consequences of legislation. In light of that, how likely is it that this was just a mistake?

Consider, too, the explosive rhetoric that emerged once the first federal court denied the request for a TRO. First, we have Congressman Patrick McHenry.
We passed a law that specifically is worded for this case. Yet those judges aren't even talking about our original intent from Congress. What we have here is an out-of-control judiciary.
Then, we have our old friend Tom Delay.
Sadly, Mrs. Schiavo will not receive a new and full review of her case as the legislation required. I strongly believe that the court erred in reaching its conclusion and that once again they have chosen to ignore the clear intent of Congress.
(Hat tip to David Shuster).

The implication here is that the judiciary is actively defying the will of Congress and, in so doing, the will of the people. But, that claim is being made despite the fact that the judiciary is strictly following the law as it is worded. Both McHenry and Delay seem to be endorsing an intent-based interpretation of the law, something that they have strongly opposed in the past when criticizing so-called "activist" judges.

Many on the right seem to be endorsing the view that the court are "out of control" in this situation. Sean Hannity has repeatedly argued that the courts are ignoring reams of evidence that would favor the Schindlers' position. He has paraded numerous "witnesses" before his audience who claim to contradict the conclusions of the trial court. He has disparaged the numerous medical experts who testified to the PVS diagnosis and claimed that only "hearsay" evidence has been offered to support the claim that Terri would have refused further medical intervention. Thus, his audience is led to believe that the judiciary is acting in a reckless and capricious fashion.

Some have taken this position to the next level. If the judiciary is acting in an improper and irresponsible manner, it should be ignored. Enter Bill Bennett.
the Florida supreme court…[has] failed Terri Schiavo. It is time, therefore, for Governor Bush to execute the law and protect her rights, and, in turn, he should take responsibility for his actions. Using the state police powers, Governor Bush can order the feeding tube reinserted. His defense will be that he and a majority of the Florida legislature believe the Florida Constitution requires nothing less.
Governor Bush was apparently persuaded by this argument.
Hours after a judge ordered that Terri Schiavo wasn't to be removed from her hospice, a team of Florida law enforcement agents were en route to seize her and have her feeding tube reinserted - but they stopped short when local police told them they would enforce the judge's order, The Miami Herald has learned.
Ultimately, nothing of substance has immediately come of this posturing. The authority of the courts was respected and the rule of law was followed. But, this last turn of events demonstrates how close many are to jettisoning the constitutionally defined powers of the judiciary. Had local police not stood their ground, that is exactly what would have happened.

And so, perhaps this shall be the legacy of Terri Schiavo. Congress could have acted in a manner that would have prolonged the status quo, but did not. In failing to do so, they allowed a simmering disenchantment with the judicial branch of government to come to a full boil on national television. People will for years recall the Florida court that condemned an innocent woman to death over the objections of her family, of numerous medical experts, and of the elected branches of government. This will be a powerful message for the right to wield as they move forward in their attempts to consolidate power in their tyrannical majority. I expect endless repetition of this theme.

Will this be a successful strategy for them? That is a more difficult question. It appears that polling is consistently showing the public at odds with the actions taken by Congress and Governor Bush. President Bush's numbers have also taken a hit over the last week (although, it is not clear that this case drove those numbers down). So, this may be a case where the right has overplayed its hand and will now face a backlash.

That's the situation as it is today. But, in the months and weeks ahead, the details of this case will fade from memory. As it does, the truly passionate will work tirelessly to keep alive their version of events. In this environment, those who opposed intervention will forget why they did and will slowly be drawn away from their convictions. The theme of "judicial activism," already so popular in many circles, will now have a concrete basis for those who rally against it. Should attempts to limit the authority of the courts make their way into the public sphere, they will find it far more receptive audience than ever before.

I can't say for certain how this will all turn out. But, I've been watching for long enough to know how the game is played. And, mark my words, there is a lot of play left in this game. Conservatives may have failed to win in the short-term, but it is far from clear that they ever wished for such a victory. In the past, they have demonstrated their ability to play for long-term advantage. Today is no different. For them, tomorrow is a brand new day.
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