Schiavo's Revenge
May 16, 2005
Terry Schiavo's death may well be recalled as one of the most significant cases in American legal history. It is not that the case spawned some new rule of law that will reverberate through the years. No, its influence will likely change the manner and means by which judges are selected.
Who can forget the paroxsyms of Congress? The special weekend session and the stampede to create a federal police power? If ever the wisdom of our founders were on display it was in the weeks that followed, when one federal judge after another looked this groundswell of emotion in the eye and said "no."
But the emotion didn't die. It lives on now in the form of the Senate threat to dismantle the filibuster, an old and venerable tool of use in the Senate to block moves popular but ill-considered.
Senator Bill Frist and friends may well force a showdown this week. They may tap into the same well of fundamentalist rage and frustration that created the Schiavo meltdown in Congress to change Senate rules. By doing so, judges of a certain stripe can be appointed, and can work to transform our lives from the bench.
Privacy? Not in the constitution. Tort reform? Yes, as a matter of law. School prayer? But of course. Just ask Texas Justice Priscilla Owen, sitting in the wings and chomping at her Bible bit for appoinment to the federal appellate court. She could not pass muster in 2002; get rid of the filibuster, and she'll be appointed this year. Praise the Lord and pass the apple sauce.
The filibuster? It crumbled. Terry Schiavo's friends will bring it down this week, I suspect. They lost Schiavo's case because they could not control the courts. But they have power, and they will now use that power to change the manner by which judicial appointments are approved. And there won't be anything that the courts can do about it this time.