http://www.salon.com/opinion/conason...avo/print.html

Down with the judicial tyrants who are killing Terri Schiavo!
Oops -- most of them are Republican. Never mind.

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By Joe Conason (Salon)



March 25, 2005 | If Terri Schiavo finally perishes over the Easter
weekend, the roar of fundamentalist rage will sound like the dawn of
Armageddon.

Televised preachers will blame her demise on the Democratic politicians
who did almost nothing to oppose the political intervention in her case.
Right-wing pundits will denounce the tyranny of "judicial activists," an
"elitist judicial oligarchy" or just plain "liberal judges." Republican
politicians will urge that she be avenged by sweeping away the
constitutional protection of the filibuster, so that the president can
pack the federal courts with extremists and theocrats.

In a Weekly Standard essay titled "Runaway Judiciary," Hugh Hewitt
promoted that opportunistic theme. Hewitt predicted confidently that
public fury over the Schiavo case will increase support for Senate
Majority Leader Bill Frist's plan "to break the Democratic filibusters
of judicial nominees and ... a backlash against any Republican who sides
with the Democrats on the coming rules change vote."

While exploiting Schiavo's tragedy for maximum impact, these
opportunists probably won't dwell on the most salient political fact
about those awful judges who have ruled so consistently in favor of
Schiavo's husband and against her parents. Most of those tyrannical
jurists happen to be Republicans, too.

When the Supreme Court issued what should be the final decision in the
Schiavo matter on Thursday, its nine members again unanimously rejected
the parents' plea for another review. The court's decision, issued
through Justice Anthony Kennedy, scarcely went beyond the succinctly
negative "denied." None of the court's self-styled "originalist"
thinkers issued a peep of dissent, although this was their fifth
opportunity to do so.

Antonin Scalia, who has come closest to articulating an openly
theocratic approach to jurisprudence, indicated no objection to the
majority position. Neither did Clarence Thomas, whose views closely
mirror those of Scalia. Their silence suggests the radicalism of the
congressional departure from constitutional norms that was embodied in
the "Schiavo law" passed by both houses of Congress and signed by the
president. By turning away the Schindlers' appeal, the Republican
justices were simply endorsing the findings of their colleagues in the
lower courts.

On cable television and on the Internet much has been made of the fact
that U.S. District Judge James Whittemore -- who issued last week's
initial federal ruling in favor of Michael Schiavo -- is a "Clinton
appointee." By emphasizing that connection, as if the former president
himself were deciding Terri Schiavo's fate, the cable loudmouths were
pandering to the old Satanic caricatures of the Clintons that still
excite the ultra-right.

When the Schindlers appealed Whittemore's decision to the 11th Circuit
Court of Appeals in Atlanta, a three-judge panel rejected their plea for
a stay. Of the two judges who ruled against the Schindlers, Ed Carnes is
a conservative Republican appointed by former President George H.W.
Bush, and Frank Hull is a moderate Democrat appointed by Clinton. The
dissenting judge, who supported the Schindlers' plea, was Charles Wilson
-- another Clinton appointee.

That nonpartisan pattern became even clearer when the full 11th Circuit
upheld that panel's ruling. Of the appeals court's 12 active judges,
only two dissented. One was the aforementioned Wilson; the other was
Judge Gerald Tjofelt, a Republican appointed in 1975 by President Ford.
The remainder, who evidently concurred with that Clintonite elitist
Whittemore, included six Republicans: Reagan appointee and Chief Judge
J.L. Edmondson; George H.W. Bush appointees Carnes, Stanley Birch, Joel
Dubina, Susan Black; and, most ironically, William Pryor Jr., who was
given a recess appointment by George W. Bush two years ago in the midst
of controversy and filibuster by Democratic senators.

Pryor is the perfect example of the kind of appointee whose extreme
views provoke the strongest liberal and Democratic opposition -- and
whom the Republicans are determined to elevate by breaking the
filibuster. He is a vehement opponent of abortion, an advocate of
criminalizing homosexuality and a consistent supporter of theocratic
efforts to breach the wall separating church and state. Although the
competition is fierce, he is probably the most right-wing nominee chosen
by President Bush.

Whatever Pryor may believe about the Schiavo case, he affirmed the
silence of his fellow Republicans with his own. Like the views of Scalia
and Thomas and most of Pryor's Republican colleagues on the 11th
Circuit, his opinion remains unexpressed.

Despite all the apocalyptic posturing of the far right on the cable
channels, weblogs and editorial pages, the Schiavo case is a matter of
individual conscience and adherence to law. Although the weight of
scientific evidence supports Michael Schiavo's position, Democrats and
Republicans alike have acknowledged how troubling and difficult they
find this issue.

Meanwhile, national polls show that the public disdains the hysterical
posturing of the Republican leadership in Congress and the White House.
Ultimately the Schiavo case may well change the debate over the
filibuster, though not as imagined by the likes of Hugh Hewitt, if only
because Senate Democrats finally muster the courage and determination to
defend the Constitution and an independent judiciary.