Archive for Friday, April 1, 2005

Analysts say U.S. system worked in Schiavo case

April 1, 2005


— The battle to save Terri Schiavo pitted the courts against Congress, at least half of the Florida Legislature and the administrations of both Gov. Jeb Bush and his brother, President Bush.

But in the end, constitutional experts say the legal struggle emerged as proof that the nation's bedrock system of separation-of-powers endures.

"For all the chaos surrounding this case, it developed precisely the way it's supposed to," said Kathy Cerminara, a professor in health care law at Nova Southeastern University in Broward County.

"The judiciary was able to withstand intense pressures. The system worked. It showed that our Founding Fathers knew what they were doing when they organized three branches of government."

The vindication of American judicial independence -- freedom from the legislative and executive branches -- is seen as a powerful postscript in the emotionally troubling tale of the 41-year-old woman, whose 15 years in a persistent vegetative state slowly ended with the removal of her feeding tube.

In fact, late Wednesday night, in yet another ruling against Schiavo's parents, one member of the U.S. Circuit Court of Appeals sharply criticized Congress and the president for interfering with the courts.

Judge Stanley F. Birch Jr. also defended the judges who, against blistering criticism of being "activists," have repeatedly ruled against Schiavo's parents, Bob and Mary Schindler, in their seven-year battle to keep their daughter alive artificially.

"A popular epithet directed by some members of society, including some members of Congress, toward the judiciary involves the denunciation of 'activist judges,'" wrote Birch, who was appointed by President Bush's father.

But many conservatives think the intense scrutiny given to Schiavo's final weeks might draw even casual observers to efforts to transform the nation's courts.

"For the average American and for people worldwide, this case may have made it apparent that we need to choose our judges so we don't put politicians in robes," said Larry Klayman, a Miami lawyer who founded the Washington-based Judicial Watch and ran unsuccessfully for U.S. Senate in Florida last year.

The latest legal fights have their roots in 2003, when the Florida Legislature passed a law that gave the governor the power to order the reinsertion of Schiavo's feeding tube, which had been removed under court order. The measure, dubbed "Terri's Law," was quickly signed by Jeb Bush but later declared unconstitutional.

Fast-forward two years: The fight to once again restore Schiavo's feeding tube roiled the Florida Legislature and spurred Congress into action.

Congress passed an extraordinary act in the hope that it would force a federal judge to order the tube's reinsertion. President Bush rushed to Washington from his ranch in Texas to sign it into law.

But in the end, Schiavo's parents lost every state and federal appeal, including twice before the U.S. Supreme Court in the week leading to her death.

"The judiciary is often at odds with the legislative or executive branches of government, that's not unique," said Drew Lanier, a constitutional law expert at the University of Central Florida. "Nor do I really think that the Schiavo case will have long-term legal consequences.

"But there is no question that politics was all over this case," he added. "And that's where you may see some ramifications."

Conservatives have been especially angered by U.S. Senate Democrats, whose threats of filibusters have held up a number of President Bush's judicial appointments.

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