In several recent articles, The New York Times has quoted sources suggesting that the outcome of the Terri Schiavo case in the federal judiciary would depend on the party affiliation of the judges assigned to the case and quoted conservatives noting that the case exemplifies the threat of an "imperial judiciary" and the stakes in highly partisan battles over President Bush's judicial nominations. But now that three different federal judicial panels, plus the U.S. Supreme Court, have declined Congress' legislative invitation to intervene in the Schiavo case, the Times has has yet to report that, contrary to those touting the Schiavo case as an example of the need for Bush's judicial nominees to be confirmed, there was little correlation between how individual judges voted on the case and the party of the president who appointed them to the bench.
A March 23 Times article raised the possibility that the March 22 ruling of U.S. District Court Judge James Whittemore -- who denied Schiavo's parents' request for a temporary injunction to reinsert Schiavo's feeding tube -- would be overturned by a three-judge panel of the 11th Circuit Court of Appeals in Atlanta. The article identified Whittemore as having been appointed by President Clinton, and quoted University of Florida law professor Lars Noah, who asserted that the ideological makeup of the panel would likely determine the ruling. According to the Times:
Legal scholars said it would be highly unusual for the Atlanta appeals court to order the feeding tube reinserted based on its analysis of Judge Whittemore's ruling. But the Schiavo case has surprised at every turn. Lars Noah, a professor of law at the University of Florida, said much depended on the politics of the judges randomly selected to serve on the panel. The court did not release their identities, saying it would wait until after they ruled.
If the panel includes two or three Republican judges, ''this gets reversed in a heartbeat,'' Professor Noah said.
Another March 23 Times article quoted a number of conservatives using the Terri Schiavo case as another example of the so-called "judicial activism" that has often been cited as a reason for approving Bush's conservative judicial nominees. Referring specifically to the ruling by Whittemore -- who was not identified as a Clinton appointee in this article -- the Times quoted Burke J. Balch of the National Right to Life Committee claiming that "Judge Whittemore has engaged in a gross abuse of judicial power"; and conservative activist Richard Viguerie, who said that "[i]t could be the opening shot in the Supreme Court nomination battle that we expect sooner rather than later."
The article then quoted Senate Majority Leader Bill Frist (R-TN), who linked the Schiavo controversy to the need to appoint "good judges":
And Dr. Frist, after discussing Congressional intervention in Ms. Schiavo's case in a telephone call to Christian conservative activists last week, moved directly to the need for ''good judges'' and his plans to end the ability of Democrats to filibuster.
"One of the first tests we will have is this whole confirmation of judges,'' he said, according to a recording of the talk made by the organization Americans United for Separation of Church and State. But in addition to his commitment to the president's nominees, Dr. Frist also said, ''I am also committed, though, to overcoming the minority's filibuster and restoring this 220 years or more of Senate tradition and history."
On March 23, after the above-mentioned articles went to press, a three-judge panel of the 11th Circuit Court upheld Whittemore's ruling. In a March 24 article, the Times documented which presidents appointed the three judges, but failed to note that the predictions of the previous day's coverage about the influence of party affiliation on judicial rulings were proven wrong. The judges on the panel were Edward Carnes, appointed by former President George H.W. Bush; and Frank Hull and Charles Wilson, both appointed by Clinton. By a 2-1 decision, the panel upheld Judge Whittemore's ruling, with Bush nominee Carnes as part of the majority and Clinton nominee Wilson dissenting.
The March 24 Times article also documented that the entire 11th Circuit Court of Appeals, consisting of 12 judges, had later upheld the panel's decision, with only two judges dissenting. However, the Times did not note, as a March 24 Los Angeles Times article did, that six of the 10 judges voting to deny the parents' petition were appointed by Republicans, and one of the two dissenters -- Wilson -- was appointed by a Democrat. As such, The New York Times has yet to note that, rather than bolstering conservatives' calls for confirmation of Bush's judicial nominees, the rulings of the 11th Circuit Court demonstrated an overwhelming bipartisan consensus within the federal judiciary rejecting Congress' attempted intervention in the case. Finally, the Supreme Court, a majority of which is made up of conservatives and Republican appointees, declined again to hear the parents' petition.