Bork: Congress' Involvement in Schiavo Case Not Unique

July 7, 2008 - 8:31 PM

(CNSNews.com) - With some Democrats in Congress worrying about the precedent setting potential of a new law aimed at sparing the life of Terri Schiavo, a former Supreme Court nominee told Cybercast News Service Monday that such congressional intervention was not so unusual.

Robert Bork, a Reagan administration nominee whom the U.S. Senate refused to confirm, called the federal legislation signed by President Bush early Monday morning something that "happens with some regularity."

"[The new law has] given jurisdiction to a federal court to hear, in effect an attack upon a state court outcome, but we do that all the time," said Bork, who authored the 2003 book "Coercing Virtue: The Worldwide Rule of Judges" and is currently a distinguished fellow at the conservative Hudson Institute.

"They (the Congress and the president) are not overstepping their legal bounds, they have a right to confer jurisdiction on a court," Bork said, just hours before a federal district court was due to hear the Schiavo case.

President Bush signed the legislation early Monday morning that granted Terri Schiavo's parents the ability to sue in federal court to have Terri's feeding tube reinserted. The feeding tube was removed Friday at the request of her husband and after a Florida state court sided with Michael Schiavo's wishes. With the case now in the hands of the federal judiciary, the U.S. District Court for the Middle District of Florida has jurisdiction.

Michael Schiavo claims his wife, who has been in her current brain damaged state for 15 years since suffering a heart attack, would not have wanted to be kept alive in that condition. But Terri Schindler Schiavo's parents say she might partially recuperate if given physical therapy.

Many Democrats have criticized the efforts of Congress and the president on behalf of Schiavo.

House Minority Leader Nancy Pelosi of California said congressional leaders "have no business substituting their judgment for that of multiple state courts that have extensively considered the issues in this intensely personal family matter."

Democratic Sen. Carl Levin of Michigan said he believes it "unwise for Congress to intervene in a very deeply personal matter such as this.

"There are many, many such individual cases that exist around the country that are in the courts. This one has been in the courts for 12 years, so I don't think it's wise as a general matter for Congress to intervene in these specific cases," Sen. Levin told CNN's "Late Edition" on Sunday.

Rep. Jerrold Nadler (D-N.Y.) said the bill "would place a federal judge in the middle of this case after the state courts have adjudicated it," Nadler said. "We have never, ever done such a thing in the history of this country," Nadler added, "and we should not start now."

Bork said Nadler's contention is wrong.

"Federal habeas corpus is precisely that. Somebody is convicted in a state court, exhausts his appeals and then files a writ of habeas corpus in a federal court in order to challenge the constitutionality or otherwise of his trial. So this is not a unique intrusion into state court jurisdiction," Bork added.

Bork also dismissed the argument that congressional conservatives and President Bush were being hypocritical by expanding the role of the federal judiciary. "The hypocrisy is the other way. I think what the Democrats see is once you talk about life in this way, you are tangentially or obliquely raising the abortion issue. I think that scares the hell out of them," Bork said.

"They don't want to view life as anything -- unless it's the death penalty of course. If somebody murdered somebody, they would be against giving them death but if it's an innocent unborn child or a Terri Schiavo, they are all for it," Bork added.

He also emphasized that in his view, congressional action in the Schindler Schiavo case does not mean "trashing the constitution."

"That's ridiculous ... This is an effort to use their undoubted power over jurisdiction," Bork said.

'A fundamental right'

Conservative legal scholar Mark R. Levin said Democratic liberals in Congress are upset because they are not in the position to affect what happens in the courts. "What really offends the Left is Congress asserting its constitutional power over a court, and not in service to the liberal agenda," Levin wrote in a posting on National Review Online on Monday.

Levin, president of the Landmark Legal Foundation, also authored "Men in Black: How the Supreme Court is Destroying America."

"The right to live, or more specifically, the right not to be killed, is a fundamental right. And it's a right recognized in our founding document, the Declaration of Independence," Levin wrote.

"Article III specifically empowers Congress to determine the jurisdiction of the federal courts, which is all it did [Monday]. It authorized a federal court to determine whether Terri Schiavo's due process rights and the right not be subject to cruel and unusual punishment were properly protected by a state court," Levin added.

He criticized liberals for failing to support the federal intervention in the Schiavo case when it has championed the Supreme Court's intervention in abortion law.

"In Roe v. Wade, the Supreme Court decided on its own that abortion was a federal question, not to be left to the states, without any constitutional basis whatsoever. It pre-empted every state court and legislature (and Congress, for that matter). And the Left celebrates this decision," Levin wrote.

Levin also warned conservatives not to be intimidated by political attacks over the federalizing of the Schindler Schiavo case.

"We must not allow the Left to define the terms of this debate. It is willing to make almost any argument to protect the supremacy of the courts. And even though Congress here is instructing the federal courts to review the case, the Left objects to any congressional exercise of constitutional authority over the judiciary," Levin wrote.

To view the archive of the Cybercast News Service's coverage on Terri Schiavo, click here.

E-mail a news tip to Marc Morano.

Send a Letter to the Editor about this article.