The Black Republican

The featured editorial at the Wall Street Journal today discusses the new efforts by the Republicans in Congress to save the life of Terri Schindler-Schiavo.

The conservative Republicans leading this effort - Senators Bill Frist and Rick Santorum, Representative Tom DeLay - are taking hits for supposedly abandoning their federalist principles.

We'd have more sympathy for this argument if the same liberals who are complaining about the possibility of the federal courts reviewing Mrs. Schiavo's case felt as strongly about restraining the federal judiciary when it comes to abortion, homosexuality, and other social issues they don't want to trust to local communities. In any event, these critics betray their lack of understanding of the meaning of federalism. It is not simply about "states' rights." Conservatives support states' rights in areas that are not delegated to the federal government but they also support federal power in areas that are delegated.

Think of an analogy to the writ of habeas corpus. As John Eastman of the Claremont Institute points out, "We have federal court review of state court judgments all the time in the criminal law context." The bill before Congress essentially treats the Florida judgment as a death sentence, warranting federal habeas review. Mrs. Schiavo is not on life support. The court order to remove the feeding tube is an order to starve her to death. Moreover, Mrs. Schiavo is arguably being deprived of her life without due process of law, a violation of the 14th Amendment that Congress has the power to address.

For those who don't find it interesting or understandable, it would be easier to point out that while modern conservatism has a libertarian streak, we are not Liberatarians. We reserve the right to pass laws to restrict what other people through their dubious claims consider "liberties" where the Constitution does not specify or includes language contrary to the notion.

Of course, we wouldn't need so many strange laws defining the obvious if we had judges who knew how to interpret the laws we already have. The Republicans are trying to do something about that right now as well.... I won't bore anyone with yet another recitation of the filibuster battle going on in the Senate over the President's federal judicial appointments, but I've discerned what could be another way to look at it.

Rush Limbaugh has been fond of saying recently that the man who finally leads the charge to change the rules in the Senate prohibiting the filibuster of judicial appointments will be lauded as a hero. And there's definately one Senator I've noticed is quite prominent in the battle lately. It's none other than the instigator of this blog, Sen. Trent Lott.

You might have noticed that the judges for whom the Democrats are fond of using the filibuster tactics tend to be people from demographics that Democrats would otherwise embrace. Priscilla Owen is female, Henry Saad is of Arab descent, and Janice Brown is not only a woman, but a black woman. Saad and another nominee, William Pryor, are also Catholic. The problem with all of them (in the Democrat view) is they are conservatives who respect original intent.

Here's where Sen. Lott comes in. As Steve observed in a conversation we had last week, several of the Senators are considering or actively planning presidential campaigns. If any one of them were to be seen as leading that charge against the Democratic filibusters, it might elevate that person too highly in the struggle for the Republican nomination in 2008. The reason the "nuclear option" has been delayed (other than simple partisanship) is probably because they've been looking to find someone whose rise in stature would merely return him to the level of status quo in the Senate. Since Mr. Lott's fall from grace came because of something he said that was viewed as insulting to racial minorities, being the personal champion of these judges might be enough to rehabilitate his tarnished image without endangering the presidential aspirations of his fellow Senators.

Convoluted? Yes, but then are most political machinations. Just don't expect me to shut down my blog if I say something nice about Trent Lott in the future. He will have helped to install judges that may well prevent cases like Terri's in the future.