Staying Alive

March 31 marks the tenth anniversary of the death of Terri Schiavo, the accidental culture-war figure whose medical condition was exploited by former President George W. Bush, former Florida Governor Jeb Bush and Republicans in the House and Senate. At the time of this sordid event, I was convinced that the Republican Party had effectively destroyed itself by eliminating once and for all the idea that the party stood for “limited government.” In a way that could not possibly be spun, Republicans made it clear that they believed in a government big enough to get into your hospital room.

I wondered if there were any Republicans who understood how foolish the party’s actions were from a traditional-conservative (as opposed to far-right) standpoint, how illogical the effort to interfere in the Schiavo family’s personal business was, how sick and sleazy this whole contrived controversy would prove to be. Thankfully, there was a voice of conservative courage back then, in the form of President Reagan’s former Solicitor General, Charles Fried:

In their intervention in the Terri Schiavo matter, Republicans in Congress and President Bush have, in a few brief legislative clauses, embraced the kind of free-floating judicial activism, disregard for orderly procedure and contempt for the integrity of state processes that they quite rightly have denounced and sought to discipline for decades.

Another voice of conservative logic on the Schiavo case came from the mouth of Douglas Kmiec. As the Los Angeles Times reported in March 2005:

As lawyers for the parents of the brain-damaged woman continued their race through the federal courts late Wednesday in what appeared to be an increasingly long-shot effort to save her life, the legal wrangling is even giving pause to some conservative legal scholars.

Several say the federal courts, by refusing to intervene in the Schiavo case, have so far exercised admirable judicial restraint. And some say the move could undermine conservative efforts to reshape the federal bench, a campaign that is expected to soon come to a head in the Senate.

“Congress’ desire to get a particular outcome led it to invite the courts to be activist, and the judges have properly refused,” said Douglas Kmiec, a professor of constitutional law at Pepperdine University School of Law, and a former Justice Department official in the Reagan and first Bush administrations.

At the time, I also suspected that the Bush brothers and the House and Senate Republicans were simply getting involved in this case to distract the party’s fundamentalist base from the fact that the party was not really serious about going all-in on a constitutional amendment to ban same-sex marriage despite the GOP’s anti-gay-marriage rhetoric during the 2004 presidential campaign, focusing instead on a doomed effort to privatize Social Security. Thus, I wasn’t surprised in the least in April 2005, when it was revealed that Brian Darling, an aide to Senator Mel Martinez (R-FL), had authored a secret memo detailing the supposed political benefits that would accord to Republicans by getting involved in the case. It was all about political benefits, not principle.

I don’t blame Michael Schiavo for still holding a grudge against Jeb Bush. I would too if I were him. In fact, faced with the prospect of an over-the-edge political opportunist like Bush becoming the 45th president of this country, I’d scream out, “Over my dead body!”

D.R. Tucker

D. R. Tucker is a Massachusetts-based journalist who has served as the weekend contributor for the Washington Monthly since May 2014. He has also written for the Huffington Post, the Washington Spectator, the Metrowest Daily News, investigative journalist Brad Friedman's Brad Blog and environmental journalist Peter Sinclair's Climate Crocks.