GOP leaders split on Schiavo case

WASHINGTON – Senate Majority Leader Bill Frist, R-Tenn., said April 5 that federal judges gave the Terri Schiavo case “a fair and independent look,” distancing himself from other Republicans who contend that the courts’ refusal to keep the brain-damaged Florida woman alive is evidence of an out-of-control judiciary.

For example, Sen. Rick Santorum of Pennsylvania, the third-ranking Senate Republican, on April 5 accused the federal judge in the Schiavo case of “violating the law” by not ordering that Schiavo’s feeding tube be reinserted. Schiavo, whom several doctors had diagnosed as being in a persistent vegetative state, died March 31 after 13 days without food or fluids.

The differing views from two top Senate Republicans illustrate the tensions in their party as Congress approaches a potentially explosive debate over the Senate’s role in confirming President Bush’s federal judicial nominees and, more broadly, over the very independence of the judiciary.

The debate reveals a split between religious conservatives, who sought congressional intervention in the Schiavo case, and small-government Republicans, who generally resist expanding the federal role.

Last week, House Majority Leader Tom DeLay, R-Texas, said federal judges “thumbed their nose at Congress and the president.” He warned: “The time will come for the men responsible for this to answer for their behavior, but not today.”

Other Republicans said such rhetoric was counterproductive.

“I think that’s pretty dangerous ground to even think about,” Sen. Pat Roberts, R-Kan., said about comments such as Santorum’s and DeLay’s. “I’m not a party to that, and I think those comments are not helpful.”

Still, Republicans – conservatives in particular – increasingly are accusing judges of making political decisions, circumventing legislative decisions and ignoring the public.

On April 4, Sen. John Cornyn, R-Texas, delivered a half-hour Senate floor speech denouncing a Supreme Court decision that limited the death penalty to convicts 18 or older. He began by suggesting that recent cases of violence against judges may be rooted in their lack of accountability.

“The increasing politicization of the judicial decision-making process at the highest levels of our judiciary has bred a lack of respect for some of the people who wear the robe,” Cornyn said. “I wonder whether there may be some connection between the perception in some quarters … where judges are making political decisions yet are unaccountable to the public, that it builds and builds to the point where some people engage in violence, certainly without any justification.”

In the two most publicized recent attacks against judges or their families – in Chicago and Georgia – authorities said the motives didn’t appear political.

Questioned about his remarks April 5, Cornyn said: “The American people have to understand how the judiciary, in some instances … has become more of a policy-making body rather than a traditional court of law.”

Republican National Committee Chairman Ken Mehlman echoed the point in an interview. He said “unelected and unaccountable judges” were taking decisions away from the American people as expressed by their elected representatives.

“I believe very strongly that one of the reasons we have … culture wars today is because decisions that ought to be democratically made are taken out of the democratic process and instead are made by unaccountable judges,” Mehlman said.

The allegations of judicial activism are mounting as the Senate prepares for a confrontation over whether Democrats should be allowed to use Senate rules to block judicial nominees. Democrats have used the filibuster, a delaying tactic that requires a supermajority of 60 votes to overcome, to stop the appointment of 10 appellate court judges.

Bush resubmitted the names of seven of those judges, and Republicans are pressuring Frist to change the rules to allow an up or down vote on them. Democrats threaten to retaliate by shutting down Senate business through procedural obstructions if their filibuster rights are abridged.

Religious conservatives have argued that federal judges’ decisions on Schiavo are examples of judicial activism. They’ve pushed the Senate to move on Bush’s court nominees.

Said Senate Democratic leader Harry Reid of Nevada: “I think that the Republican legislative leaders in Congress have forgotten what our Constitution’s all about. If they don’t get what they want, they attack who’s ever around. Now they’re after the courts. And I just think that it goes back to this arrogance of power.”

Frist declined to link the Schiavo case with the judicial-confirmation debate. He said he was still trying to find a compromise. He gave no indication of being in a hurry to challenge the Democrats. “I’m using restrained reasonableness,” he said.