The Terri Schiavo case has reinvigorated a drive by congressional conservatives to discipline and curtail the power of federal judges, just as Senate Republicans are trying to repel Democratic claims that the GOP is extremist and overreaching in its bid to shape the federal judiciary.
The debate is causing tensions within the Republican Party, whose Senate leaders distanced themselves this week from an attack on judges leveled by House Majority Leader Tom DeLay (R-Tex.).
Party insiders say Congress is unlikely to impeach judges or dramatically limit the courts' jurisdiction, as DeLay has repeatedly threatened to do. But Democrats, sensing a political opening, have pounced on DeLay's comments -- and similar remarks made by other conservatives -- in their campaign to prevent Senate Republicans from changing filibuster rules that have enabled Democrats to block several of President Bush's appellate court nominees.
"If they don't get what they want, they attack whoever's around," Senate Minority Leader Harry M. Reid (D-Nev.) told reporters this week. "Now they're after the courts, and I think it goes back to this arrogance of power."
For years, DeLay has called for disciplining or even intimidating judges he considers too liberal and active. But rarely, if ever, have his remarks coincided with an event that galvanized public attention as did the case of the brain-damaged Florida woman who died last month. DeLay rebuked judges who refused to order her feeding tube reinserted, saying, "the time will come for the men responsible for this to answer for their behavior." He has asked the House Judiciary Committee to recommend steps for Congress to take against "an overactive, out-of-control judiciary."
DeLay and his fellow House members have no say in confirming or rejecting judicial nominees. But his comments in the Schiavo debate are resonating in the bitter Senate battle over whether to ban filibusters of such appointees.
Democrats have denounced the comments, as well as those by Sen. John Cornyn (R-Tex.), who said this week that violence against judges might be linked to a perception that they make "political decisions."
Sen. Edward M. Kennedy (D-Mass.) said yesterday, "The Schiavo case cast a bright light on the dark forces behind the . . . campaign" to change Senate rules and bar judicial filibusters. Noting that federal judges are asking Congress for an extra $12 million for security systems in most of their homes, Kennedy said: "I urge President Bush and [Senate Majority Leader Bill] Frist to call a halt to the reckless Republican rhetoric that is endangering judges' lives."
Frist (R-Tenn.) played a central role in Congress's Palm Sunday legislation directing a federal court to step into the Schiavo case, but this week he distanced himself from criticisms such as DeLay's and Cornyn's. "I believe we have a fair and independent judiciary," he said.
DeLay and his allies, however, remain infuriated that the Atlanta-based Court of Appeals for the 11th Circuit refused Congress's orders to take control of Schiavo's case from Florida courts. Judge Stanley F. Birch Jr., who was appointed to the appellate court by President George H.W. Bush, criticized Congress's actions as being "at odds" with the Constitution.
Rep. Steve King (R-Iowa), a Judiciary Committee member and DeLay ally, said in an interview: "That kind of judge needs to be worried about what kind of role Congress will play in his future." King said it is not clear what steps his committee might take, but he said most people do not realize the power Congress can exert over courts if it chooses.
"We have the constitutional authority to eliminate any and all inferior courts," he said, referring to district and circuit courts. King said some federal judges refuse to answer questions from Congress unless they are being impeached, so "that may force our hand."
Rep. Mike Pence (R-Ind.), chairman of the conservative Republican Study Committee, said few lawmakers would support impeachments, but congressional hearings to probe judges' roles in the Schiavo case are likely. "I think this series of recent events will help those of us who would like to use existing constitutional authority to restore the proper balance between the branches of government," Pence said.
GOP attacks on the federal judiciary could prove politically tricky. Well more than half of the nation's 266 U.S. appellate court judges and approximately 1,000 district court judges were appointed by Republican presidents.
Senate Democrats cite such facts to depict Republican activists as extremists who will stop at nothing to turn the federal judiciary into a conservative bastion. "Apparently, it's not enough for Republicans to rule the White House and the Congress," Kennedy said. "They want power over the independent judiciary, too. The checks and balances so vital to our democracy are for them merely an inconvenience."
Democratic-affiliated groups are spending millions of dollars on TV ads and collecting thousands of petitions to oppose Frist's threat to change the filibuster rules for judicial nominees. Frist and others say the Democrats' use of the filibuster is an unconstitutional strategy that prevents senators from providing the president "advice and consent" on judges.