If you hear a weird noise tonight, it could be the sound of conservative icons Barry Goldwater and Ronald Reagan turning over in their graves.
Senator Rick Santorium basically now suggests the judge wasted his time ruling on the Terri Schiavo case since unless he had ruled the way Congress wanted, he was “defying” Congress.
Sanatorium’s new argument is that if Congress passes a law, it is automatically correct even if it is a law involving a highly controversial issue seeped in all kinds of ethical, political and legal issues. Read this item for yourself:
“You have judicial tyranny here,” Sanatorium told WABC Radio in New York. “Congress passed a law that said that you had to look at this case. He simply thumbed his nose at Congress.”
And we all know that Congress and its members who are elected don’t tend to pander to get votes while judges always pander to win over constituencies to perpetuate themselves in office. Or, wait…do I have that backwards? Whatever:
“What the statute that [Whittemore] was dealing with said was that he shall hold a trial de novo,” the Pennsylvania Republican explained. “That means he has to hold a new trial. That’s what the statute said.”
“What he’s saying is, ‘I don’t have to hold a new trial because I’ve already determined that her rights have been protected,'” Santorum said.
“That’s nice for him to say that. But that’s not what Congress told him to do,” he added. “Judges should obey the law. And this judge – in my mind – simply ignored the law.”
In other words: Congress wanted a judge to RATIFY its law — or the judge was being disrespectful to Congress and guilty of “judicial tyranny.” The GOP doesn’t like activist judges — but wanted a judge to endorse Congress’ action, which isn’t an activist judge. A judge refusing to agree with Congress and vote the way it wants them to vote on this case is an activist judge.
This doesn’t sound like something Barry Goldwater or Ronald Reagan would ever say. But, then, times — and party beliefs — have apparently changed. Sorry BG and RR…
Is this just TMV who wonders? No:
–Republican blogger John Cole:”Can’t say I didn’t warn you that they were going to come after Judge Whittmore. Let the smears begin….”
http://www.balloon-juice.com/movabletype/mt-tb.cgi/2856 –>
—Americablog:”I can already hear it coming, now the “activist judges” are going to be judges who DON’T intervene and try to tell you how to live (or die).”
—Tapped:”I do know that judges have to rule on the case that’s actually brought to them, and not a case Congress might hope comes before them. That’s what avoiding judicial activism means. We are, after all, a country where you can be executed because your lawyer filed your appeal a day late. Rick Sanatorium went to law school; he knows all this. But his idea of “judicial activism” is about politics, not the law.”
—Charles Kuffner:”Once again I say: if there was only one thing the judge could do that would have been acceptable to DeLay and Sanatorium and their henchmen, then why bother giving it to the judge at all? If you’re going to abuse your power, you may as well go whole hog. I’m sure this will be a lesson to them.”
http://WWW.offthekuff.com/movable_type/mt-tb.cgi/4223
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Here’s a prediction from James Joyner:
As expected, the Schindlers have appealed Judge Whittemore’s refusal to order Terri Schiavo’s feeding tube reinserted to the 11th Circuit. They will lose there, too. They will then petition the U.S. Supreme Court, which will quite like deny their appeal on the grounds that they have no interesting legal issues of national significance.
The Moose wonders whether the right is loosing touch with America… For the past three decades, the right has thrived on the notion that they represent the people while liberals are out of touch with the wisdom of the common folk.
(The) Schiavo case reveals a gap between public opinion and the worldview of the Republican social conservatives. Apparently, the religious right is not necessarily more representative of the general population than the “Beserkely” beads and sandals crowd. The right has taken on some of the worst characteristics of the New Left – morally self-righteous, making the personal, political and valuing ends over means…..
Conservatives are as intoxicated by power and hubris as liberals once were. Barry Goldwater would hardly recognize this crowd. And should the right lose its populist touch, the conservative moment may not last for much longer.
UPDATE:
And it gets worse, folks:
With time running out on efforts to keep their daughter alive, lawyers for Bob and Mary Schindler found themselves arguing Tuesday that the extraordinary federal law signed in the middle of the night by President Bush to get them into federal court is, in fact, every bit as extraordinary as it seems.
Congress, they argued, fully intended for Terri Schiavo’s feeding tube to be reinserted, and the federal judge who ruled against them simply ignored the clear intent of the law.
In papers filed with an Atlanta-based federal appeals court, the Schindlers’ lawyers, as well as lawyers for the Bush administration, argued that U.S. District Judge James Whittemore failed to grasp the scope and significance of the new law when he refused Tuesday morning to reinsert Schiavo’s feeding tube.
Whittemore refused to order the tube reinserted because he said there was little chance that the Schindlers would ultimately prevail in the case. But the Schindlers’ lawyers contend that he was wrong to flatly deny the request, because he didn’t seriously consider the merits of their claims – as Congress had specifically directed.
“Clearly the act assumes the federal court will grant restraining or injunctive relief ordering that Terri’s hydration and nutrition be restored to sustain her life until the merits can be heard,” the lawyers said.
I thought everything I read was that Congress was buying time for the parents to continue the appeals — NOT that our system of government with its centuries of checks and balances was suddenly dismantled by a single Congressional vote and a President rushing back from his ranch to sign the law. Where in the original news reports did it say that this action stripped a judge of his autonomy?
The reports did NOT say that by passing a law Congress was becoming a court akin to the Supreme Court and that a case ordered by Congress back into court to be judged wasn’t a case to be judged — but that a judge was now a mere rubber stamp of politicians responding to pressure from powerful constituencies (complete with what seemed to be talking points).
This is NOT a Democratic or Republican issue (see conservative bloggers John Cole above and Donald Sensing here) anymore. This is an issue about how our system of government is set up…and whether Americans have the will to insist that that they have not agreed to have it suddenly changed by a Congressional act.
George Bush won twice by winning votes not just from the GOP’s coalition but from centrists who felt Al Gore and John Kerry had veered too far left. Bush and Tom DeLay may be overreaching themselves into the historical curse of presidents’ second terms. Will GOPers who idolize the strict constructionist, small government philosophies of Barry Goldwater and Ronald Reagan insist on getting their party back before this political hijacking is complete?
Joe Gandelman is a former fulltime journalist who freelanced in India, Spain, Bangladesh and Cypress writing for publications such as the Christian Science Monitor and Newsweek. He also did radio reports from Madrid for NPR’s All Things Considered. He has worked on two U.S. newspapers and quit the news biz in 1990 to go into entertainment. He also has written for The Week and several online publications, did a column for Cagle Cartoons Syndicate and has appeared on CNN.