Political Animal


April 04, 2012 1:57 PM Another Terri Schiavo Moment?

By Ed Kilgore

Last night on Twitter I tossed out the theory that the Judge Jerry Smith’s challenge to the president from the bench and the rapturous conservative reaction it has provoked might turn out to be a “Terri Schiavo Moment” for the Judicial Right. By that I meant an incident providing a very public glimpse into a veiled, radical perspective that supposedly mainstream, respectable figures embraced.

Most of you probably remember the Schiavo incident, exemplified by Sen. Bill Frist’s diagnosis of the Florida woman from the Senate floor.

Interestingly enough, when I posed the theory late last night in a conversation with some other progressives, I unintentionally touched off a heated and sometimes angry debate—not because I considered the two incidents analogous (everyone seemed to concede that), but because I was making the “mistake” of thinking that any conservative outrages would have a tangible political impact in this particular day and age.

One argument in that direction was simply that the country was too polarized for “persuasion” to matter any more, if it ever had. We just had to accept that Americans had become two warring tribes and all we could do is pick up sides and go at it. Another was that the MSM was so mired in “false equivalence” habits that conservative “outrages” would be deemed no worse than trumped-up liberal “outrages,” no matter what was said and done.

Among those objecting to my Schiavo comparison, there was a palpable fear that progressives were again falling into the trap of “reasoning” with people about conservative intentions instead of just going to war with an energized base that already understood the stakes of the battle.

While I understand that perspective, I consider it not only overwrought but potentially self-paralyzing. You don’t have to get into deep analysis of “memes” and “narratives” to grasp that political competition is dynamic, that many voters, even habitual partisans, have mixed feelings and opinions, and that elections are ultimately decided not just by “winning” segments of the electorate but by reducing margins of defeat where you can. The Schiavo incident, I believe, did contribute to the disastrous GOP performance in 2006 because it alienated many independents and some Republicans who thought the GOP was committed to minimal government interference in private life, and minimal federal interference with state-level policies and decisions. It was galvanizing precisely because it offered a direct, visceral glimpse into the conservative id, and into a political party that had become dangerously dependent on support from cultural extremists (in that case, the anti-choice movement, which was deeply invested in the claim that the Democratic “party of death” wanted to legitimize euthanasia as well as “infanticide.”

I don’t know that a judge in Texas suddenly challenging the President of the United States to a constitutional fistfight can really be compared in its power to the spectacle of U.S. Senators calling themselves into a special session to micromanage an end-of-life decision in Florida. It obviously involves arcane issues that don’t much affect regular folks immediately. But at a time when the entire conservative movement and the GOP is fixated on the twin goals of destroying health reform and the president who has succeeded in enacting health reform legislation, exposure of their remarkable hypocrisy and extraordinary aggressiveness could turn more than a few persuadable heads. And if nothing else, progressive voters may gain a better understanding that presidential appointments to lifetime positions on the federal bench have real-life consequences for decades.

So rage on, Judge Smith, and cheer on, conservative battlefield converts to the value of judicial review. If nothing else, you may semi-permanently disable yourselves from shouting about judicial activism.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.


  • T2 on April 04, 2012 2:32 PM:

    oh, I don't think conservatives will feel shame about the "activist judge" baloney because a GOP judge went off. Everyone, including conservatives, understands that the "activist" tag is a one way street.....any judge ruling against conservative positions is "activist". Any judge ruling in favor of conservative positions is simply upholding the law or constitution etc. They realize its a sham, and so does most everyone else.
    To the point that polls show a majority of Americans think the Supreme Court will, along partisan lines, vote down ACA. IF the SC upholds the mandate and ACA 5/4 it will shock the conservatives like nothing has ever done since a black guy became president. And that's why it will be 5/4 to strike the mandate, and 5/4 to kill the whole thing. Because they are activists, just like the president said yesterday.

  • DAY on April 04, 2012 2:34 PM:

    The best response to a bully is laughter.
    It diminishes them, and shows that you are smart.

  • Joe on April 04, 2012 2:36 PM:

    I'm with you on this, Ed.

    I have some friends (and one brother) who are moderate Republicans, and they reluctantly voted for Obama, because they thought the GOP had gone insane. This cycle, they are again looking around, and again, they have determined that the GOP is insane. They will probably vote for Obama again. Reluctantly.

    I would consider them moderate followers of politics. They don't read political blogs or listen to political radio everyday, but they listen to the news everyday, and they are both intelligent and concerned.

    I understand that what I am saying is anecdotal, but I would be surprised if there isn't a chunk of people in the country just like this, and in many cases, a chunk decides elections.

    I don't think that those who believe that tribalism is the dominant factor in politics is completely wrong. It's mostly right, I think, but somewhat wrong, especially when it comes to tight elections.

  • TCinLA on April 04, 2012 3:01 PM:

    Wingers never get it about what happens when they rip off their masks and expose themselves as the Lizard Men From Outer Space that they are - the rest of the country wants nothing to do with them.

  • Mitch on April 04, 2012 3:11 PM:

    I always figure that about a third of voters are tribal zealots, on either side. One third will vote Republican no matter what, and one third will vote Democratic; so 60% of voters are spoken for, more or less. But the remaining 40% can, and do, change their minds on a frequent basis.

    If they did not, then we would have had One Party Rule a long time ago. It's as simple as that.

    Now, I'm not sure that the Judges vs. Obama argument will be a game-changer, like Schiavo was. This partisan hackery from supposedly impartial judges certainly should make them look bad; but it's difficult to determine at this point.

    I think the recent theocratic birth control insanity will have a much larger effect.

  • Luke Coley on April 04, 2012 3:30 PM:

    Ed, my biggest question about Judge Smith in the 5th Circuit is this - since when does a statement at a press conference have anything to do with how a case is decided? Every, and I literally mean every, jury I've ever seen in state and federal court has been given an instruction to ignore any press reports they might see, and to consider only the facts presented in court. So why is an appellate judge worrying about something said in a press conference, when his entire job in the case is to consider only the record in the trial court?

  • 2Manchu on April 04, 2012 3:35 PM:

    I think the Terry Schiavo moment for the GOP, and conservatives in general, started when they decided to make contraceptives a campaign issue, not to mention the Inquisition-inspired procedures for those seeking an abortion that they championed.

  • dp on April 04, 2012 4:00 PM:

    I agree with everything you said until the last sentence. These people have no compunction about contradicting their prior statements whenever they find it convenient, so there will be no semi-permanent disability.

  • Stephen Stralka on April 04, 2012 4:03 PM:

    ...I was making the "mistake" of thinking that any conservative outrages would have a tangible political impact in this particular day and age.

    Well, I don't have an exact quote to work with here, and no disrespect to your interlocutors, bu that seems like a very strange argument to make. We spent much of the last month watching the War on Women have tangible political impact, for instance, and we've got numbers to back it up in the latest polls. And in 2010 we saw the GOP throw away a couple of Senate seats they could have had by nominating particularly outrageous candidates. And Scott Walker is on the verge of being recalled. And so on.

    My own impression is that it's at most a quarter to a third of the population who are irredeemable wingnuts. With regards to the rest of the population, the basic right-wing strategy is straight up deception. And all the lies and bullshit really are getting more and more outrageous.

    Hell, they're even in the process of politicizing the Trayvon Martin case by rallying around George Zimmerman. People do have limits.

  • Danny on April 04, 2012 4:10 PM:

    One argument in that direction was simply that the country was too polarized for “persuasion” to matter any more, if it ever had. We just had to accept that Americans had become two warring tribes and all we could do is pick up sides and go at it. Another was that the MSM was so mired in “false equivalence” habits that conservative “outrages” would be deemed no worse than trumped-up liberal “outrages,” no matter what was said and done.

    Sure, there's something to this. But it all ends when Republicans lose at the ballot box. It ends when Conservative business, e.g. Shock Jocks and FoxNews, loose money. It ends when we've won enough times.

    Enough screw-ups from the Republicans and eventually they loose. They move too far out of the mainstream and screw the middle class too much, and eventually they loose.

    The elites & the MSM are still kowtowing to Republicans and conservative institutions because for a long time they've delivered win after win after win - in the media business and at the ballot box.

    That's why we should pick our tribe and stick with it until the know-nothing party is duly humbled and put in its place, and we can all go back to sanity.

  • Bob on April 04, 2012 4:25 PM:

    Perhaps next time the Administration's representative will get a caning like SC Rep Brooks gave Sen Sumner in 1856.

    Sometimes I wonder just how far we have really come from those days...

  • Mimikatz on April 04, 2012 5:46 PM:

    I agree with 2Manchu that the Terry Schaivo Moment came when the GOP went to war against contraception. Women saw the GOPsters for the sexist meddlers that they are and they won't be back.

    The judge's comment is too much inside baseball. A Schaivo Moment has to expose their desire to meddle in deeply personal decisions and willingness to use individuals with severe health problems as political pawns.

  • Anonymous on April 04, 2012 8:11 PM:

    Semi-permanent disability disqualifying them? That's just ... really nice, in a way, and so wistful, too. Our politicians who call themselves (and are called by the media) "conservatives" pay no price for being blatant hypocrites. There will be no price to pay for this outrageous act by the judge, and "conservatives" in politics won't pay any price for their hypocrisy. They simply will not, because the media simply will not point it out. And even if the media did, in this instance, no one outside of political and judicial junkies will ever care.

    The war on contraception? THAT'S a different story. And that's the closest to the Schiavo case.

  • anon's honey on April 04, 2012 9:24 PM:

    Republicans are the biggest hypocrites ever. Stage actors, playing a part. Full of falsity and duplicity. Truthless and feigning, insincere and deceitful.
    Like Al Frankin once said, republicans want to ease the suffering of the insurance companies. And never mind that much of Terry Schiavo's medicare care had been financed by medical malpractice awards which republicans would certainly slash and burn. Big time hypocrites. Big time bluster. Lots of political slime and slush.

  • Sam on April 05, 2012 1:11 PM:

    Maybe Judge Jerry wasn't just having a hissy fit. Perhaps he's just planning to cite the DOJ's letter in an opinion overturning the ACA - "Even counsel defending the law agrees that this court has the power to overturn it."