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 Editorials | March 2005 
A Very Bad Civics Lesson
 Al Knight - Denver Post
President Bush has attempted to justify federal intrusion in the Terri Schiavo case by saying he and the Republican majority wished to "err on the side of life." However, the motives, noble or not, can't change the fact that intervention was an error and a very bad civics lesson for the nation.
| Elian Gonzalez
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Indeed, the tin-eared response of the Republican Party in the Schiavo case reminds one of the Elian Gonzalez saga during the Clinton administration. Back then, the GOP sided with disgruntled relatives of the Cuban boy and against the interests of his biological father. After much shouting and street theatrics, the boy was properly returned with his father to Cuba.
There are political ironies aplenty in the Schiavo case. The most obvious is that although conservative Republicans have been railing for years against judicial activism, here the conservatives displayed a breathtaking legislative arrogance.
The congressional passage of a bill applying only to Terri Schiavo was expressly intended to set aside years of litigation in Florida. That litigation resulted in a final order to withdraw the feeding tube from Schiavo, who has been diagnosed with irreversible brain damage.
Civics textbooks are full of examples where Congress has enacted legislation designed to respond to court decisions. If a court, for example, decided to invalidate a seatbelt law, Congress would be quite free to pass a new statute.
What Congress did in this case, however, was nothing short of extraordinary. It sought to set aside the final judgment of state courts and offer a whole new level of review by federal judges. More important, Congress granted Terri's parents standing to sue - something they lacked in Florida - and provided that federal judges reviewing the case need not take into account anything - anything - that the Florida courts had done.
This bold strategy backfired quickly when the federal judge hearing the case took into account the earlier Florida cases and ruled that the parents had not established a likelihood of prevailing on the merits of the case. Because of that conclusion, the judge declined to issue an injunction restoring the feeding tube.
President Bush, with a straight face, has claimed that this unprecedented series of events "doesn't establish a precedent."
He needs to look up the word before using it again. Does anyone seriously believe that this chapter of narrow-interest legislation can be erased from the nation's memory banks?
Strangely, some conservative commentators have recently argued that the Republican Party will greatly benefit from the intervention in the Schiavo matter. They are wrong.
It's more likely that the GOP and the president have suffered very serious self-inflicted wounds by acting so precipitously and in clear contravention of our system of laws.
In attempting to bypass the Florida state court system, Congress was seeking what amounts to a third bite at the apple. Earlier, the Florida legislature had enacted narrow-interest legislation, which the Florida Supreme Court quickly struck down. The Florida court said that the legislature had no right under the state constitution to set aside a final order of the courts. Despite that decision, issued last September, Congress rushed to achieve the same result.
The federal judge who heard the appeal Monday noted that the federal statute had obvious constitutional problems but chose not to resolve them immediately.
What is utterly amazing is that even now in Florida, an attempt is underway by allies of Schiavo's parents to pass still another ex post facto law, one that would retroactively remove Schiavo's husband from his role of guardian.
The issue of whether Michael Schiavo has a conflict of interest in the case has been extensively litigated. It was resolved years ago when a court, having heard all of the evidence, ruled that the feeding tube could be removed. Some elements of the media continue to picture the current dispute as nothing more than a battle between the husband and the woman's parents. That is both incorrect and incomplete. The battle is solely over the validity of a Florida judge's ruling.
The rule of law is useless if it is unreliable. Congress and the president have sought to make the law unreliable. For that, they should - and very likely will - pay a price. |
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