Will the GOP need life support?

A prominent conservative blogger says Republican leaders have abandoned the traditional principles of small government and federalism -- and warns they may soon come to regret it.

By Glenn Harlan Reynolds

Mar 31, 2005 | The story of Terri Schiavo, who died Thursday at age 41, is a tragedy in the truest sense. It is a case in which there are no happy endings and in which the mighty fall. One thing that has fallen is the notion of the Republican Party as a bastion of federalism and limited government. Some might argue that this notion was already in doubt, in light of the Bush administration's less-than-parsimonious budgeting, but pork is part of politics, and you have to expect a certain amount of give in that department.

Widespread Republican support for legislation taking an individual case away from state judges and placing it in front of the federal judiciary is another thing. The "if it saves just one life, it's worth it" argument has more typically been associated with gun-control activists, and other groups that are generally looked down upon by Republicans, but now many in the GOP seem to have picked it up as a slogan. Indeed, the entire notion of the "rule of law" -- itself once a favored slogan of conservatives -- seems to have fallen into disrepute. Quite a few conservatives are unhappy about that state of affairs, and I wonder if it doesn't presage a realignment within the Republican Party, and the fracturing of some alliances on the right.

Schiavo hysteria certainly has some Republicans in its grip. Bill Bennett wrote that state law doesn't deserve our respect if it conflicts with natural law. Bennett went on to urge Florida Gov. Jeb Bush to risk impeachment by violating the orders of the Florida Supreme Court. Fox News' John Gibson was less measured. "Just to burnish my reputation as a bomb thrower," he wrote last Friday on the Fox News Web site, "I think Jeb Bush should give serious thought to storming the Bastille." In other words, Bush should consider sending police in to remove Schiavo from the hospice and reattach her feeding tube. "The point is, the temple of the law is so sacrosanct that an occasional chief executive cannot flaunt it once in a while, sort of drop his drawers on the courthouse steps and moon the judges, as a way to protest the complete disregard courts and judges have shown here, in this case, for facts outside the law," Gibson wrote.

Judge bashing has been a staple of Republican rhetoric for a while, though the judges being bashed have more often been federal than state judges. And, to be fair, the judges have often been generous in providing ammunition, offering rulings that strain the facts or go beyond settled law, though that doesn't appear to be the case here. In fact, the courts seem to have been very thorough, and hardly liberal activists. (Florida law blogger Matt Conigliaro notes that Pinellas-Pasco Circuit Judge George Greer, the trial judge, is a Republican and a Southern Baptist.) Some people on the right are pointing that out and are appalled at their colleagues' rhetoric. Daniel Henninger wrote in the Wall Street Journal that while Greer has ruled against Terri Schiavo's parents many times, so have Florida's appeals court, the Florida Supreme Court, U.S. federal courts and the U.S. Supreme Court. "It is difficult for me to believe that these are all 'liberal' judges intent on 'killing' Terri Schiavo," Henninger wrote.

But the judge bashing has gone on, and Congress' rush to pass legislation intervening in the case was unprecedented. This is too much for some conservatives, and quite a few libertarian fellow-travelers such as myself. As Nashville Christian-conservative blogger Bill Hobbs wrote, "I have not written about the Terri Schiavo case because it is too complex, too multi-layered, and too steeped in unknown or unknowable facts for me -- indeed for most people -- to have a fully informed opinion ... I do know that the Congress did the wrong thing, intervened where it had no Constitutional right, and solved nothing."

Donald Sensing, a pro-Bush, pro-war Methodist pastor and Army veteran, agreed and added: "As a resident of Tennessee, I have no standing to tell the people of Florida that their laws are either unjust or incorrectly applied by their state courts. I may believe that, or not, but I have no standing to intervene in the internal affairs of another state by means of the federal government. The notoriety of the Terri Schiavo case does not give me that justification. Like former Reagan Solicitor General Charles Fried (who called the Schiavo legislation an "absurd departure from principles of federalism and respect for sound and orderly judicial administration"), Sensing quoted Justice Scalia from the very similar Cruzan case, to the effect that this is a matter for state courts.

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