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WASHINGTON — Despite political pressures so intense they produced an extraordinary piece of legislation from Congress, unrelenting press coverage and a predicament freighted with emotion, it was the courts, not Congress, who seem to have had the last word on Terri Schiavo. At the end of last week, after being rebuffed by federal judges at all levels, Schiavo’s parents, Mary and Robert Schindler, and their supporters watched their legal options dwindle — and their anger at the judicial system grow. For the politicians, protesters and talk radio hosts, it hardly mattered that well-known legal scholars on both sides of the political divide believed that U.S. District Judge James Whittemore’s decision on Tuesday not to order Schiavo’s feeding tube reinserted was sound. Or that a day after Whittemore’s decision, a three-judge panel from the Eleventh Circuit U.S. Court of Appeals and the full court — a majority of whose members were appointed by Republican presidents — endorsed Whittemore’s reasoning. Or that the U.S. Supreme Court then tacitly affirmed Whittemore’s decision by refusing to hear the case. Instead, the series of legal decisions that played out over a dramatic four days last week only bolstered their sense that the judiciary is not only too independent, it is out of control. “The judges,” Robert Schindler told reporters after a day of adverse rulings, “are running this country.” Added House Majority Leader Tom DeLay, R-Texas, on Thursday, shortly after the Supreme Court denied certiorari: “Once again, they have chosen to ignore the clear intent of Congress.” But conservative legal scholar Douglas Kmiec saw it differently — as a triumph of the courts over the passion of the moment. “It is with great credit that every level of the federal courts recognized that law rather than emotion and politics has to prevail,” says Kmiec, who teaches at the Pepperdine University School of Law. “We are also a nation of law, and there is a right way and wrong way to advance the protection of our fundamental rights. � And I say that as someone very much inclined to favor Terri Schiavo and her parents.” The sparring illustrated a relationship between Congress and the federal courts that has always been a complex and contentious one. To many court-watchers, however, the discourse between the two branches has reached a new level of hostility. With increasing frequency, Congress is trying to curb the power of the judiciary; with equal vigor, the courts are fighting back. “Court stripping is in fashion,” says Bert Brandenburg, a former Justice Department spokesman in the Clinton administration who now runs the nonpartisan Justice at Stake Campaign, which supports an independent judiciary. “In many ways, people feel judges are the enemy,” Brandenburg says. “It’s the equivalent of a football game; everybody gets out of hand, and they turn on the referee.” Congress has recently attacked the independence of the courts on a number of fronts. A House-sponsored measure to defend the Ten Commandments declares that their display is protected under the Constitution’s establishment clause. The bill, which has 118 co-sponsors, explicitly requires the courts to accept that assertion and forbids them to rule on its constitutionality. Another bill, the Pledge Protection Act of 2004, amends the U.S. Code to deny jurisdiction to any federal court, including the Supreme Court, to decide any question about the interpretation of the Pledge of Allegiance, “or its validity under the Constitution.” The bill, which passed the House last September, 247-173, is awaiting action in the Senate. And a pending constitutional amendment defining marriage as the legal union of one man and one woman expressly forbids any court — state or federal — from deciding whether the U.S. Constitution or any state constitution holds otherwise. “There’s a history dating back to the first decade of the nation in which Congress went after the courts in a major way,” notes Indiana University law professor Charles Geyh, whose book, “When Courts and Congress Collide,” will be published later this year. “But there’s been a gradual erosion in America with our comfort with the rule of law and the perception that judges follow the rule of law. There are angry things now,” Geyh says, referring to the Pledge protection and Ten Commandments bills. To be sure, the courts have never been shy about asserting themselves, either. For instance, after Congress decided in 2003 to further restrict a federal judge’s sentencing discretion, the Supreme Court upended the entire guideline system in a decision in January. And the courts have consistently rebuffed efforts by the Bush administration to eliminate judicial review for enemy combatants. That’s not to say that Congress minds using the federal judiciary for its own purposes, often punting problems to the courts it finds too delicate to legislate by itself. Or more frequently, it passes slightly ambiguous legislation designed to appease conflicting constituencies — take the Telecommunications Act of 1996, for example — and lets the courts decide what it means. Last month, at the behest of a powerful coalition of business interests, Congress reformulated the federal court docket, passing the Class Action Fairness Act, which will shift class actions away from state courts — where they traditionally have been tried — and into the federal court system. The move was motivated, in part, because many business leaders believe they are more likely to get a fairer shake in the federal courts, where the number of Republican judges has grown dramatically since the 1980 election of President Reagan. That same motivation was clearly part of the congressional strategy mandating that a federal judge rehear the Schiavo case. As attacks against the judiciary have grown stronger, the controversy over judges has also reached a new level of intensity. Witness the threat by Senate Republican leaders to put an end to Democratic judicial filibusters by using an arcane Senate procedure. Taken all together, the judiciary appears, at least to the public, to be under siege. “You can be insulated. You have a lifetime appointment, and most judges don’t frequent political circles,” says Abner Mikva, a former D.C. Circuit judge, member of Congress and White House counsel to President Clinton. “But if you read newspapers — and almost all judges read newspapers — and you hear these angry congressmen shouting to strip the judiciary of jurisdiction, to strip them of their robes and whatever else, it begins to have an impact.” When Congress drafted the weekend legislation giving the U.S. District Court for the Middle District of Florida jurisdiction over the Schiavo case, it took pains to tell the court that it was not creating any new “substantive rights,” a phrase designed to lessen any problems the court might have with the law. Yet Judge Whittemore skirted the issue of the law’s validity altogether by simply sticking to the issue of whether Schiavo’s parents, the Schindlers, merited a temporary injunction ordering that Schiavo’s feeding tube be restored. Whittemore concluded that the Schindlers weren’t likely to prevail on any of the constitutional claims the new law allowed the family to bring. “The court appreciates the gravity of the consequences of denying injunctive relief,” wrote Whittemore, a Clinton appointee. “[But t]his court is constrained to apply the law to the issues before it.” Whittemore, in another move that spoke to judicial solidarity, backed the findings of Florida state courts, in which the issues surrounding Schiavo had been litigated for years. His decision meant that the appeals court could reverse him only if he had abused his judicial discretion — a difficult standard to reach. And in fact, Whittemore’s decision was upheld by a three-judge panel of the Eleventh Circuit the next day. As if to rebut the presumption that the Schindlers would find allies only in Republican judges, the lone dissenter was Charles Wilson, a Clinton appointee. Edward Carnes, who was picked for the bench by the first President Bush, and Frank Hull, another Clinton appointee, sided with Whittemore. The full Eleventh Circuit, which has a Republican-nominated majority, voted to uphold Whittemore hours later. The appeals court agreed with Whittemore’s legal rationale, but only after dismissing Wilson’s contention that Congress clearly intended the court to grant a stay and restore Schiavo’s feeding tube until it could revisit the facts. For the Schindlers, that meant an emergency appeal to Supreme Court Justice Anthony Kennedy, who oversees the Eleventh Circuit. Kennedy deferred to the entire Court, which chose not to accept review of the case. As the Schindlers’ supporters vented their rage in media reports, the family made a final attempt before Whittemore on Thursday, citing new evidence in the case, but that claim too was rejected. At the same time, a Florida state judge denied Florida Gov. Jeb Bush the authority to take custody of Schiavo. (At press time, the Eleventh Circuit was scheduled to hear the Schindlers’ appeal of Whittemore’s last ruling.) The courts, seemingly, had held their ground. David Goldberger, a professor at the Ohio State University College of Law, says the inability of much of the public to accept a series of consistent state judicial decisions — all of which have found that Schiavo had made it clear she did not wish to live in a “persistent vegetative state” — is disturbing. “A decision was made [in state court] that this is not what Terri Schiavo wants,” he says, referring to the feeding tube that had been keeping Schiavo alive. “But people are saying, ‘We don’t care,’ and this is what flummoxes me.” T.R. Goldman is a reporter with Legal Times, a Recorder affiliate based in Washington, D.C.

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