March 23, 2005

Judicial nominations and the Schiavo effect.

The NYT reports on signs that the Schiavo controversy will have an effect on the process of appointing federal judges:
The intense fight in the Terri Schiavo case is injecting another explosive element into the coming Senate showdown over President Bush's choices for federal judgeships as well as into future battles to fill Supreme Court vacancies.

The Republican-led effort to circumvent a state court order to disconnect Ms. Schiavo's feeding tube, combined with a federal judge's refusal on Tuesday morning to countermand that order, has crystallized issues in the judicial debate in a compelling and singular public way, Republicans and Democrats alike said.

Conservatives, already disdainful of the way judges have handled subjects like same-sex marriage and abortion, say the court treatment of the Schiavo case illustrates a judiciary that is willing to ignore the will of the public and elected officials.

Within a few hours of the decision by Judge James D. Whittemore of Federal District Court in Tampa, who refused to order nutrition restored to Ms. Schiavo, conservatives were expressing their outrage, accusing the judge of giving no deference to the legislation rushed through Congress.

"Judge Whittemore has engaged in a gross abuse of judicial power," said Burke J. Balch of the National Right to Life Committee.

Richard Viguerie, the strategist behind conservative direct mailings, said, "It could be the opening shot in the Supreme Court nomination battle that we expect sooner rather than later."

Mr. Viguerie added, "It is very dramatic proof of what we have been saying: that the judiciary is out of control."

Viguerie is, of course, exactly wrong. What Judge Whittemore did is very dramatic proof of the judiciary's deep commitment to the rule of law and its firm resistance to political pressure and emotional entreaties.

And what do "conservatives" really think of judges? Do they want them -- as the third paragraph in that block quote says -- not "to ignore the will of the public and elected officials"? I thought good conservatives wanted judges to set aside political preferences and faithfully follow the dictates of the law. The criticism of "activist" judges is that they abuse the law by making it into what they prefer politically, but the solution isn't that they should do more of what other people prefer politically. It's that they ought to do what the law requires.

Do Balch and Viguerie seriously think that Justice Scalia would agree with their assessment of Judge Whittemore? Obviously, they are promoting activist judges of the social conservative stripe, and there is nothing properly conservative about that at all.

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