WASHINGTON — The legal struggle over the fate of Terri Schiavo is exposing what some see as a credibility gap for the Bush administration, Republicans in Congress and social conservatives who want to rid the federal judiciary of so-called activist judges and even strip them of authority.
In the Schiavo case, President Bush and congressional Republicans exhorted the judiciary to intervene, having passed extraordinary legislation over the weekend giving her case a day in federal court. The maneuver expanded rather than contracted federal power, and appeared to encourage the sort of activism that they had long condemned.
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.
Harvard law professor Charles Fried, another Justice Department official under Reagan, accused Bush and congressional Republicans of backsliding on their long-standing commitment to states' rights.
In their intervention in the Schiavo case, the Republicans 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," Fried wrote in the New York Times.
The defenders of the last-ditch moves said they saw no contradiction, and asserted that Congress was acting within its power in an unusual case of singular importance. Federal courts have long played a role backstopping the state courts to review possible injustices, they argued.
The Schiavo appeal is not a question of activism, said John Eastman, a professor at Chapman University law school, who said he was nonetheless disappointed at the short shrift the federal bench had given the case. " It is a little lack of courage," he said.
