The New York Times
New York Times

March 23, 2005

G.O.P. Right Is Splintered on Schiavo Intervention


WASHINGTON, March 22 - The vote by Congress to allow the federal courts to take over the Terri Schiavo case has created distress among some conservatives who say that lawmakers violated a cornerstone of conservative philosophy by intervening in the ruling of a state court.

The emerging debate, carried out against a rush of court decisions and Congressional action, has highlighted a conflict of priorities among conservatives and signals tensions that Republicans are likely to face as Congressional leaders and President Bush push social issues over the next two years, party leaders say.

"This is a clash between the social conservatives and the process conservatives, and I would count myself a process conservative," said David Davenport of the Hoover Institute, a conservative research organization. "When a case like this has been heard by 19 judges in six courts and it's been appealed to the Supreme Court three times, the process has worked - even if it hasn't given the result that the social conservatives want. For Congress to step in really is a violation of federalism."

Stephen Moore, a conservative advocate who is president of the Free Enterprise Fund, said: "I don't normally like to see the federal government intervening in a situation like this, which I think should be resolved ultimately by the family: I think states' rights should take precedence over federal intervention. A lot of conservatives are really struggling with this case."

Some more moderate Republicans are also uneasy. Senator John W. Warner of Virginia, the sole Republican to oppose the Schiavo bill in a voice vote in the Senate, said: "This senator has learned from many years you've got to separate your own emotions from the duty to support the Constitution of this country. These are fundamental principles of federalism."

"It looks as if it's a wholly Republican exercise," Mr. Warner said, "but in the ranks of the Republican Party, there is not a unanimous view that Congress should be taking this step."

In interviews over the past two days, conservatives who expressed concern about the turn of events in Congress stopped short of condemning the vote in which overwhelming majorities supported the Schiavo bill, and they generally applauded the goal of trying to keep Ms. Schiavo alive. But they said they were concerned about what precedent had been set and said the vote went against Republicans who were libertarian, advocates of states' rights or supporters of individual rights.

"My party is demonstrating that they are for states' rights unless they don't like what states are doing," said Representative Christopher Shays of Connecticut, one of five House Republicans who voted against the bill. "This couldn't be a more classic case of a state responsibility."

"This Republican Party of Lincoln has become a party of theocracy," Mr. Shays said. "There are going to be repercussions from this vote. There are a number of people who feel that the government is getting involved in their personal lives in a way that scares them."

While the intensity of the dissent appears to be rising - Mr. Warner made a point Tuesday of calling attention to his little-noticed opposition in a nearly empty Senate chamber over the weekend - support for the measure among Republican and conservative leaders still appears strong. In interviews, some conservatives either dismissed the argument that the vote was a federal intrusion on states' rights or argued that their opposition to euthanasia as part of their support of the right-to-life movement trumped any aversion they might have to a dominant federal government.

"There's a larger issue in play," and Gov. Mike Huckabee of Arkansas, "and that is the whole issue of the definition of life. The issue of when is it a life is a broader issue than just a state defining that. I don't think we can have 50 different definitions of life."

Other Republicans who supported the Schiavo bill said they were wrestling conflicting beliefs. Senator George V. Voinovich of Ohio, a former governor and a strong advocate of states' rights, decided to support the bill after determining that his opposition to euthanasia outweighed his views on federalism, an aide said.

Senator Tom Coburn, a newly elected conservative Republican from Oklahoma, said: "This isn't a states' rights issue. What we're saying is they are going to review it. The states are not given the right to take away somebody's constitutional rights."

Representative Tom DeLay, the Texas Republican who is the House majority leader, bristled on Sunday when he was asked about how to square the bill with federalist precepts.

"I really think it is interesting that the media is defining what conservatism is," Mr. DeLay said. "The conservative doctrine here is the Constitution of the United States."

The Republican Party has long associated itself with limiting the power of the federal government over the states, though this is not the only time that party leaders have veered from that position. Most famously, in 2000, it persuaded the Supreme Court to overturn a Florida court ruling ordering a recount of the vote in the presidential election between Al Gore and George Bush.

But now the Schiavo case is illustrating splinters in the conservative movement that Mr. Bush managed to bridge in his last campaign, and the challenges Mr. Bush and Republicans face in trying to govern over the next two years, even though they control Congress as well as the White House.

"The libertarian streak in me says, you know, people should have the right to die," Mr. Moore, of the Free Enterprise Fund, said. "But as so many conservatives, I'm also very pro-life. Those two philosophies are conflicting with each other."

Bob Levy, a fellow with the Cato Institute, argued that Democrats and Republicans alike were being "incredibly hypocritical" in this case: Democrats by suddenly embracing states' rights and Republicans by asserting the power of the federal government.

"These questions are not the business of Congress," Mr. Levy said of the Schiavo dispute. "The Constitution does not give Congress the power to define life or death. The only role for the court is once the state legislature establishes what the rules are, the court can decide if the rules have been properly applied."

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