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(DV) Whitney: Terri Sciavo and the Battered Judiciary

Terri Schiavo and the Battered Judiciary
by Mike Whitney
www.dissidentvoice.org
April 5, 2005

“The time will come for the men responsible for this [judges] to answer for their behavior.” [We need to] “look at an arrogant, out-of-control, unaccountable judiciary that thumbed their nose at Congress and the president.”

-- Tom Delay (R-Texas)

“Her death (Terri Schiavo) presages more arbitrary incursions into the realm of the judiciary, unsettling the balance of power in profound ways.”

-- Patricia J. Williams, The Nation

The portentous comments of Tom Delay are critical in understanding the underlying agenda of the Terri Schiavo affair. The Republican Congress has no more interest in sustaining the life of a brain-dead patient on life-support than they do of ameliorating the suffering of malnourished Iraqi children. They’re just trying to augment Bush’s powers by bludgeoning the judiciary; that explains why Delay and the rubber-stamp Congress have been enlisted to act as a battering ram against so-called rogue judges. They’re simply doing Bush’s dirty work.

Bush has paid dearly for his for his “culture of life” movement. The polls indicate that in just a two-week period he plummeted from a 52% favorability rating to a measly 45%, the worst of his presidency. Still, Bush has soldiered on, ignoring the carping from both the Right and Left, following the directives of his closest advisors.

He has been assisted, to a great extent, by a media that now acts with such incredible precision that it can create the illusion that a handful of teary-eyed fanatics on the front lawn of a Hospice are the epicenter of the cosmos. Compare the coverage given to these few dozen evangelicals to the thousands of anti-war protesters who marched through American cities just three weeks ago.

The Imaginary Mandate

According to a poll conducted last week by CBS News, 82% of Americans opposed Bush and Congress’ involvement in the Schiavo affair. This suggests that the callous misuse of a brain-dead woman for political “point-making” may be the most cynical and self-serving ploy in our lifetime.

Overwhelming majorities of Americans, liberal and conservative, were against Bush on this one. The most telling statistic appeared in the ABC poll two weeks ago, which showed that “46% OF EVANGELICAL PROTESTANTS SUPPORT REMOVING THE FEEDING TUBE, opposed to 44% against.”

Bush couldn’t carry even his most ardent constituents! Among non-evangelical Protestants the numbers were far worse: “77% were in favor of removing the feeding tube,” a hands-down rejection of the Bush-Congress intervention.

Still, Bush has stood firm with his zealous friends in the pro-Terri crowd; claiming that it is better to “err on the side of life” than to allow the incapacitated Schiavo to die with dignity that she apparently requested (according to every court that reviewed the case). Maybe, Bush’s advisors believe that this is a good way to fire up the faithful for the coming battles with in the Senate over judicial appointments. Now that Senate Republicans are threatening to employ the “nuclear” option (eliminating the ability to filibuster candidates for the bench), the next appointments may determine the composition of the Supreme Court and, thus, the future of Roe vs. Wade.

“It is entirely possible that in her death Terri Schiavo will become a symbol for many people about a disturbing trend in American culture,” said Gary Bauer, the head of the conservative American Values organization. It will make “more acute the feeling at the grass roots that too many of the most important decisions are being made by unelected judges.”

Bauer summarizes the feelings of many Christian conservatives who believe that judges willfully and routinely deviate from the law in their rulings. It’s a popular fantasy, but one that has little basis in fact. Still, it’s a myth that feeds the public imagination and serves the interests of politicians, like Bush, who see the discrediting of judges as a positive development.

The administration has been aided in their attack on the judiciary by their friends in right-wing radio. Sean Hannity, Rush Limbaugh and Bill O’ Reilly have conducted a withering 24 hour-a-day Blitzkrieg on the “unelected and unaccountable” judges who are “making law from the bench.” The snappy talking points used in the radio harangues make for interesting listening, but the charges are pretty feeble. Over 20 state and federal judges have now reviewed the Schiavo case, proving that “judicial activism” is a spurious claim made by those who simply don’t like the results. The ruling was a straight forward reading of the existing statutes in Florida law, fully respecting the rights of the victim and her legal guardian, Michael. However one regards the outcome, there was no “activism” involved.

Bush's Goal: Savage the Courts

From the administration’s point of view, the strategy of pummeling the courts seems to be working. The furor surrounding the Schiavo ruling has cast a shadow over the credibility of the judicial system. This is a clear victory for Bush whose powers are only increased by trouncing the other co-equal parts of government. The Congressional intervention was a brazen assault on the “separation of powers” and establishes a dangerous precedent for presidential intrusion into judicial proceedings. Although the tactic failed, we can expect to see more of this same strategy in the future. This is a serious challenge to the American justice system, which requires both independence and autonomy to do its work.

Since 9-11 the public relations team at the White House has done an impressive job of concealing the extent to which the rule of law has been ignored. The administration has demonstrated its contempt for restrictions in everything from the arbitrary terminating of treaties to the illegal incarceration of American citizens. This latest maneuver, however, is a direct attack on the institution of justice itself, and suggests that graver measures may be forthcoming. Already, Tom Delay is threatening to convene the Congressional Judiciary Committee with the intention of purging judges who fail to meet Washington’s new moral standards.

The Schiavo case had nothing to do with saving the life of a comatose patient or with Bush’s feigned commitment to the “sanctity of life.” As Patricia J. Williams says in this month’s The Nation magazine, “‘Life’ has become a convenient weapon in service to the unprincipled exercise of raw power -- a corruption that will, one may confidently predict, take on a yet more fearsome life in years to come.”

Bush is using “Life” to insert himself into legal proceedings, eviscerate the principle of “separate, co-equal parts of government,” and undermine the independence of the Judiciary. If he succeeds in his plan, he will have kicked down the last remaining obstacle between himself and unlimited presidential authority.

Mike Whitney lives in Washington state, and can be reached at: fergiewhitney@msn.com.

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