Is It Safe?

Joyce Purnick of the Times chides the profiles in courage amongst the Senate Democrats:

THE House of Representatives acted quickly over the weekend in the wrenching case of Terri Schiavo, so quickly that maybe those who opposed the special bill allowing the federal courts to take over the case might have missed the Senate's role - conspicuous for its silence.

The debate was confined to the House, for nearly four hours late Sunday night and early Monday. In the Senate, home of Edward M. Kennedy of Massachusetts, Barbara Boxer and Dianne Feinstein of California, and, of course, Hillary Rodham Clinton and Charles E. Schumer of New York, nothing.

An objection from just one senator might have blocked or slowed the measure's march to the House. Instead, the Senate Democratic leadership approved the bill by unanimous consent, with no floor discussion about the Florida woman whose doctors say is in a "persistent vegetative state." What's going on?

Senators, at least those here in New York, are not talking for public consumption, but neither is their strategy well hidden. They have opted to sit back, let the courts take the heat and avoid a passionate attack from social conservatives who see this as an issue of life, like abortion, and want Ms. Schiavo's feeding tube, removed on Friday, reinserted. By not tangling on the Senate floor, the lawmakers have escaped broad accusation of opposing life.

Democratic Senators who are critical of the measure were saying this week that they had little to gain by taking on this issue. Constitutional experts assured them that there was little chance that the federal courts would step in or that the United States Supreme Court would intervene after refusing several times to hear the state case. They also worried that if they blocked the bill, they risked being blamed if Ms. Schiavo died before the House passed it.

Therefore, there is nothing lost and perhaps something to gain by their strategy, the argument goes, especially since Senator Bill Nelson, a Florida Democrat, is up for re-election next year and could not have welcomed a Senate fight.

All very plausible. But there is one other player in this sad drama. The public and its right to know and learn.

...Even the normally irrepressible Mr. Schumer, chairman of the Democratic Senatorial Campaign Committee, has been reserved. On Tuesday, he said only that the case "shows how important the courts are as a check on the overreaching majority." By phone yesterday, he added, "People are starting to understand that these people are very extreme."

Emphasis added.  With the polls safely at his back, Sen. Schumer might now remember that an opposition party can also be a check on an overreaching majority.  Ms. Purnick has a gloomy finish:

Democrats are clearly hoping that the Republicans' tactics, led by House leader Tom DeLay, will backfire. Maybe it will, but no one can say they do not know what Mr. DeLay and his colleagues stand for, or at least say they stand for in a case freighted with as much political posturing as it is with human anguish.

Well, the Dems do seem to have abandoned the notion of getting what they want through legislative action, or even inaction, thereby making each court appointment even more fraught.

UPDATE:  Senate Dems are now saying they supported this in deference to Tom Harkin; NOW they tell us!

And Ralph Nader sees a "profound injustice", as it finally dawns on some libs that they ought to support the concept of activist, do-gooding legislation. 

 

Comments

[John Thacker]

Shocking, really, that Ms. Purnick seems unaware of the widely reported fact (even in the NYT-owned Boston Globe) that Sen. Tom Harkin (D-IA) helped write this legislation, shepherd it through, and convinced his colleagues not to oppose it. Perhaps that news didn't fit to print, or perhaps it's just typical Times ignorance of politics.

[Appalled Moderate]

Seems the Democrat strategy here was a good one: let the GOP noisily pass a meaningless bill, and allow them to look like they are overreaching and dispensing with their Federalist principles in order to achieve a result. I can see them thinking there's no real harm done, because the result is not going to change.

If I were Reid, and knew that I was facing the fallout from the nuclear option on judges, I might be real happy right now. The GOP has not demonstrated much respect for the law or the judiciary in the past week. The argument that the nominees the Dems have been blocking will subvert the judiciary and engage in result based analysis is now a lot easier to make. I actually find this unfortunate -- partly because some of the judges being held up have been slimed but good for the benefit of Democratic fundrasing.

[Patrick R. Sullivan]

Maybe the Senate Democrats have had it dawn on them that there is a precedent being set here that bodes ill for Federal court activism. It should be real interesting the next time a death row inmate argues he's been denied 14th Amendment protection in his state's courts.

[bpf]

To Appalled Moderate:

"The GOP has not demonstrated much respect for the law or the judiciary in the past week."

As opposed to, for example, the ex parte arrest warrant obtain from a pneumatic judge in the wee hours for the arrest of Elian at gunpoint. Or the midnight destruction of Meigs Field in Chicago by Mayor Daily. The GOP has allowed this matter to worm its way through the courts to the great dismay of some, but to the relief of those who admire the rule of law, due process and the opportunity to be heard. A different federal district judge from the one who heard this case (one found in a justice department horse-trade perhaps) could quite easily have issued a TRO and sought modern and timely medical information on Terri Shiavo's current condition instead of treating the statute passed by congress as a direction to review the Florida procedures first, and if not found wanting, ending further inquiry.

To me, the Schiavo case looks more like an industrial (judicial) cya than anything else. How would you like to be the judge who found Terri to be PVS on evidence now viewed as inadequate.