In an April 1 analysis of "the legacy" of the Terri Schiavo case in The New York Times, reporter Sheryl Gay Stolberg wrote: "The case also fueled conservatives' anger over what they regarded as a runaway judiciary, laying the groundwork for future fights over Mr. Bush's judicial nominees."
But by linking the Schiavo case with future judicial nomination fights, Stohlberg set up the case as a conflict between conservatives -- angry at a federal judiciary run amok and prepared to push for like-minded judicial nominees -- and liberals defending a liberal judiciary. But these purportedly angry conservatives are angry with a conservative federal judiciary, and they represent a minority of both self-identified "conservatives" and self-identified "Republicans." If the Schiavo case does in fact "lay the groundwork for future fights over Mr. Bush's judicial nominees," those who are angry at the Schiavo rulings will presumably be advocating for nominees who would have ruled differently in the Schiavo case. But such nominees would be to the right of the vast majority of Americans who opposed congressional and presidential intervention in the case, to the right of prominent conservative legal scholars, and to the right of an already conservative federal judiciary.
Polls show that a strong -- even vast -- majority of Americans thought that Congress and the president were wrong to inject themselves into this issue and agreed that the decision over whether to disconnect his wife's feeding tube was rightly Michael Schiavo's to make. According to a Gallup poll released March 22, even 54 percent of Republicans supported removal of the feeding tube, compared with 35 percent who opposed. Among conservatives, 50 percent supported removal, with 38 percent opposed.
Moreover, prominent legal scholars forcefully denounced the involvement of Congress and President Bush. Douglas W. Kmiec, a conservative law professor at Pepperdine University and a former assistant attorney general under presidents Reagan and George H.W. Bush, was quoted in The New York Times saying that the law passed by Congress and signed by the president "contravenes almost every principle known to constitutional jurisprudence." Charles Fried, a conservative Harvard Law School professor and former solicitor general for Reagan, wrote in a March 23 New York Times op-ed that Congress' and Bush's intervention reflected an "embrace [of] the kind of free-floating judicial activism, disregard for orderly procedure and contempt for the integrity of state processes that they quite rightly have denounced and sought to discipline for decades."
Most important, the federal courts at every level rejected Terri Schiavo's parents' claim that the law gave them the right to have her feeding tube restored and to a de novo review of the case in federal court. Raging liberal judges did not hand down these decisions. While the district court judge was a Clinton appointee, the en banc panel of the 11th Circuit Court of Appeals -- the 12-judge panel that rejected the Schindlers' two appeals by 10-2 and 9-2 votes -- has a Republican majority. Moreover, one of the two dissenters in the case was appointed by President Clinton. In the Schindlers' most recent appeal, Judge Stanley F. Birch Jr., described by Knight Ridder as "one of the most conservative jurists on the federal bench," delivered "a stinging rebuke of Congress and President Bush." Reporter Stephen Henderson wrote:
Birch said he couldn't countenance Congress' attempt to "rob" federal courts of the discretion they're given in the Constitution. Noting that it had become popular among "some members of society, including some members of Congress," to denounce "activist judges," or those who substitute their personal opinions for constitutional imperatives, Birch said lawmakers embarked on their own form of unconstitutional activism.
Finally, the U.S. Supreme Court, which consists of seven Republican appointees and two Democrat appointees, rejected every one of the Schindlers's appeals. If this case "lay[s] the groundwork for future fights" over judicial nominees, it will be because the far right will argue for judges whose views are to the right of an already conservative federal judiciary.