The Shame in the Shiavo Case

The Shame in the Shiavo Case

Volume IV, Issue 12 | March 24 – 30, 2005


The Shame in the Schiavo Case

“This Republican Party of Lincoln has become a party of theocracy,” a leading member of Congress warned in the wake of the vote early Monday morning to give federal courts jurisdiction in the Terri Schiavo case.

Was this the argument of a veteran Democratic lawmaker standing firm on principle against unprecedented congressional interference in the medical decision-making by a husband for his irretrievably incapacitated wife—a choice affirmed at every turn by the properly constituted courts of Florida?

No. They were the words of Christopher Shay, one of the five Republicans in the House who joined 53 Democrats in opposing the measure brokered in feverish weekend negotiations by Senate Majority Leader Bill Frist of Tennessee and House Majority Leader Tom DeLay of Texas. Nearly as many Democrats, 47, joined the 156 Republicans who supported the measure signed into law at 1 a.m. by Pres. George W. Bush, who flew back from his Crawford, Texas ranch specifically to be on hand with his pen.

To her credit, House Minority Leader Nancy Pelosi, the San Francisco Democrat, issued the following statement: “Congressional leaders have no business substituting their judgment for that of multiple state courts that have extensively considered the issues in this intensely personal family matter. The actions of the majority in attempting to pass constitutionally-dubious legislation are highly irregular and an improper use of legislative authority.”

Pelosi, however, was not in Washington, but rather on a fact-finding mission in the Middle East.

Had it not been for the efforts of a handful of Florida Democrats, led by Rep. Jim Davis, the measure would not even have been put to a roll call vote, but would have passd by acclamation. It was their insistence on getting their colleagues on the record that pushed the vote into the early morning hours Monday.

The story on the Senate side was even more lamentable. Harry Reid, an anti-choice Nevada Democrat who replaced the defeated Tom Daschle of South Dakota as minority leader, signed onto the measure as soon as he won concession from DeLay that the law would only apply to the Schiavo case, not more generally. Massachusetts’ Ted Kennedy, usually a liberal lion, vowed only “to do all I can to see that any action Congress takes is constructive and free from partisan politics, and does not make a tragic situation worse by exploiting this terrible tragedy.” He skipped the vote itself.

Michigan’s Carl Levin and Oregon’s Ron Wyden took to the Senate floor to speak against the bill, but neither exercised his prerogative to force a roll call of senators, as their Florida colleagues had done in the House.

Interestingly, the senator who has made the most of his opposition to the Frist-DeLay law is John Warner, the Virginia Republican.

“This senator has learned from many years you’ve got to separate your own emotions from the duty to support the Constitution of this country,” he said, and he took to the Senate floor on Tuesday to remind the chamber that he was the only Republican to stand in opposition in Sunday’s voice vote.

John Kerry of Massachusetts and Hillary Rodham Clinton of New York, two prominent Democrats who are potential 2008 presidential candidates, said nothing on the matter. Evan Bayh, the charismatic Indiana Democrat, who has served his state as both governor and U.S. senator and is sometimes mentioned as a potential great Red State hope for president in 2008, supported the law.

The politics underlying all of this could not be more cynical. DeLay spent the early part of last week ducking reporters as the investigation into fund-raising irregularities of a political action committee with which he is affiliated spawned questions about some of his foreign travel. Suddenly, at week’s end, DeLay was everywhere, flogging the Schiavo matter.

Frist, frequently mentioned as a potential GOP presidential contender in 2008, resorted to familiar political form—using his credentials as a physician to assume an air of authority on an issue of medical ethics. Even as his office was acknowledging that he frequently encountered situations as a heart surgeon where he withdrew medical care, he questioned the judgment of a roster of doctors who had testified in Florida courts on Schiavo’s condition. Dr. Kenneth Prager, who chairs the Medical Ethics Committee at Columbia Presbyterian Medical Center, termed the majority leader’s armchair diagnosis “inappropriate,” noting that “a diagnosis should be made bedside by a neurologist. He’s not a neurologist, and he wasn’t bedside,” according to the Daily News.

Frist and DeLay used a gathering of the Family Research Council last week at Washington’s Willard Hotel as a pep rally for Christian conservatives, and DeLay’s comments in particular were telling.

“One thing that God has brought to us is Terri Schiavo to elevate the visibility of what’s going on in America,” DeLay said, according to a transcript taken from a tape recording released by Americans United for the Separation of Church and State.

“This is exactly the issue that is going on in America, of attacks against the conservative movement, against me and against many others,” DeLay continued, citing a “whole syndicate” of “do-gooder” forces in “a huge nationwide concerted effort to destroy everything we believe in.”

Despite the efforts of DeLay, Frist and Bush, the federal courts are not playing the role assigned them, and the president’s brother, Florida Gov. Jeb Bush has launched a last-ditch effort to gain custody of Schiavo, in the name of further medical evaluation.

Some Democrats may justify their silence over the past week by pointing out that federal court rejection of the arguments being made by Schiavo’s parents, Robert and Mary Schindler, was a foregone conclusion; that there was no need to expend political capital in standing up to DeLay and Frist. Given the 2-1 vote from the federal appeals court this morning, however, that defense seems disingenuous.

And Frist and DeLay, to be sure, are not yet ready to let this one go. Commenting on the Supreme Court’s two earlier refusals to intervene in the Schiavo matter, DeLay warned, “When this tragic episode is over, the Supreme Court will have some serious questions to answer about its silence and its arbitrary interpretation of federalism, but those questions will have to wait for now.”

Already the right wing is pressing Frist to look to this week’s federal court rulings on Schiavo as evidence that he must move to suspend the Senate’s filibuster rules that have allowed Democrats to block judicial nominations by mustering at least 40 votes.

Let’s all hope that Frist does not smell weakness in the timidity of the Democrats on the Schiavo matter, because the future of our federal court system could hang in the balance.