POLITICS APRIL 11, 2005
Last week, at a conference convened in Washington by the freshly formed Judeo-Christian Council for Constitutional Restoration (JCCCR), the enemy operated under many different aliases. Sometimes it was just "judicial activism." Other moments, however, demanded more colorful nomenclature: "oligarchs in black robes," "gang of ideologues," and "the legalistic equivalent of Marxism, Leninism, and Stalinism." And if there wasn't exactly a consensus on what to call federal judges whose decisions advance a liberal agenda, everyone at least agreed on one thing: that their latest, and perhaps gravest, transgression was the refusal of Florida courts to prevent Michael Schiavo from removing the feeding tube from his vegetative wife Terri.
The case of Terri Schiavo--or Terri Schindler, the maiden name preferred by the more zealous attendees and speakers--was everywhere at the conference, from the opening invocation to a discussion on how to mobilize grassroots conservatives. Even Roe v. Wade, the traditional bete noire of the anti-judicial-activism movement, couldn't grab the spotlight away for long. "In terms of the integrity of our constitutional system, an epoch was passed in Florida," Alan Keyes announced to a roomful of nodding conference-goers. "Jeb Bush should have issued an executive order and brought [Schiavo] into state custody," Roy Moore, the former Alabama Supreme Court justice and right-wing cause celebre said, before imploring the crowd to "stop letting the courts run over the Constitution."
There's no question that Terri Schiavo has made judicial activism a top-ranking issue in GOP circles. The unknown JCCCR managed--at the peak of the Schiavo controversy, according to The Washington Post--to recruit such right-wing heavyweights as Phyllis Schlafly, Manny Miranda, and Representatives Lamar Smith and Steve Chabot. (Tom DeLay was scheduled to speak, but bowed out in order to attend the Pope's funeral.) Add to that the gathering storm in the Senate over Democrats filibustering President Bush's conservative judicial nominees, and it would seem that anti-judicial-activism Republicans like DeLay have finally gotten what they want: public recognition that the judiciary has "run amok" and a groundswell of people devoted to helping the legislative branch regain control.
In fact, all this attention may be the worst thing that could have happened to conservatives who rail against the liberal judiciary. That's because the Schiavo case, which has put the question of judicial activism on the public's radar screen, has also pushed anti-judicial-activism conservatives even further toward the outer limits of mainstream politics.
And given where they were before, that's pretty far out. The movement has a long history, obviously, and much of the vitriol on display at the conference was old hat. Edwin Vieira, for instance, the author of How to Dethrone the Imperial Judiciary, explained to his audience that any decision by a jurist not clearly derived from Judeo-Christian ethics must come from "satanic ethics." As for DeLay, long one of the most visible public faces of the conservative crusade against judicial activism, he's been making his opinions on the matter clear for years, arguing back in 1997 that "judges need to be intimidated."
What Schiavo may have done, though, is to heighten the impatience of this movement with their ostensible allies in the mainstream of the Republican Party. Attacks against Florida Governor Jeb Bush and GOP senators were a recurring theme of the conference. "I hope nobody's offended by this," Don Feder, a conservative journalist said during the conference's first panel, "but Jeb Bush could have saved [Terri Schiavo]." The audience responded with cheers, as they did at just about every subsequent indictment of the governor and unnamed "Senate leaders." Keyes, for his part, chided Jeb Bush, arguing that the governor should have said to the courts, "No, I will not carry out your unlawful, unconstitutional order."
The problem? As polls have shown that the majority of Americans support the courts' decision to uphold Michael Schiavo's right to remove his wife's feeding tube, congressional Republicans have backed off the issue of judicial reform. "It's more of a discussion ... [and] there's not a lot of evidence that they're even being discussed," Adam Elggren, director of communications for Senate Judiciary Committee member Orrin Hatch, told me in reference to the movement's long list of demands: limiting the term of federal judgeships, cutting off funding for courts that consistently exceed their authority, and amending the Constitution so that Congress can overturn any Supreme Court decision by a two-thirds vote. But a nice conversation is hardly what reformers like those at the JCCCR, enraged over the outcome of the Schiavo case, have in mind. And the angrier such organizations get, the more they may alienate themselves from the GOP mainstream. "These groups are arrogant with power and not satisfied with controlling the legislature and executive branch," says Jim Manley, a spokesman for Senate Minority Leader Harry Reid. "Moderate Republicans are trying to distance themselves from them." (Coming from a Reid staffer, of course, this idea may contain a certain amount of wishful thinking. Then again, it's not clear Democrats would be happy to see the GOP cut loose the Roy Moores and Alan Keyeses; after all, their position vis-a-vis Schiavo wasn't very popular.)
It's not just a matter of intra-GOP politics, though. Schiavo v. Schiavo may have hurt the anti-judicial-activism movement in another way as well, namely because it's a deeply imperfect vehicle for the cause. As some legal analysts have pointed out in the past month, the case actually required Schiavo's parents' lawyers to build their argument on an expansive interpretation of the Constitution, one that included a broad right to life. Plus, the precedent of involving the federal government in a matter that has traditionally been the province of state courts has set off alarms among those conservatives who are not eager to sacrifice federalism in order to accomplish judicial reform. So far, these contradictions haven't fazed the most vocal protesters, who have little concern for the nitty-gritty of legal procedure--but that doesn't mean they shouldn't. "The Schiavo case is not a good example of judicial activism," says Charles Baron, a law professor at Boston College. "It's not the court getting involved where it shouldn't. It's not the court overturning old law. It's not the court overturning legislation. It's just nonsense."
But don't tell that to the JCCCR. The group is just gearing up for what it calls "the great task confronting the American people." And it's not alone. The Coalition for a Fair Judiciary, led by up-and-coming firebrand Kay Daly, has also charged itself with ousting liberal judges from the federal courts and ensuring the appointment of suitably conservative replacements. (Make that arch-conservative: As The Christian Science Monitor reported this week, Republican appointees already make up a majority of judges on 10 of 13 U.S. federal appeals courts.) "The judiciary," said Alan Keyes at the conference, "is the focus of evil in our domestic affairs." But even as the Schiavo case propels judicial activism onto front pages, it may be driving the issue further to the fringes of the Republican Party. And, as judicial reformers might find, it's hard to get anything done from the outside.
Keelin McDonell is a writer for The New Republic.