updated 3/23/2005 11:21:13 AM ET 2005-03-23T16:21:13

Guest: Roy Moore, Michael Coleman, John Fund, Jim Warren, Kenneth Blackwell, Dorothy Timbs, William Colby, Mary Cheh

CHRIS MATTHEWS, HOST:  A federal judge early today denied the request to have Terri Schiavo‘s feeding tube reinserted.  And her parents responded immediately by appealing the decision. 

From Columbus, Ohio, let‘s play HARDBALL.  

Good evening.  I‘m Chris Matthews. 

And, tonight, HARDBALL is back on the road in Columbus, Ohio, the state that decided the presidential election.  Today, Terri Schiavo‘s parents have appealed a federal judge‘s decision not to reinsert the feeding tube to keep her alive.  Schiavo‘s case went to the 11th U.S.  Circuit Court of Appeals in Atlanta, Georgia. 

And we get the latest now on the case from HARDBALL correspondent David Shuster—David.

DAVID SHUSTER, NBC CORRESPONDENT:  Well, Chris, for the parents of Terri Schiavo, their despair is growing.  The brain-damaged woman has now been without food and water for nearly five days. 

This morning, Federal Judge James Whittemore denied a motion from Schiavo‘s parents requesting what might be called injunctive relief.  The judge rejected all of the arguments put forward that Schiavo‘s rights to due process had been violated by the Florida courts.  Michael Schiavo, who is Terri Schiavo‘s former husband, said that he was pleased with the decision.  Terri Schiavo‘s brother that his family, the Schindler family, was crushed.

And the brother said that watching his parents go through this is absolutely barbaric.  The reaction from the White House and Congress has been far more muted, but there have been a variety of statements expressing disappointment in the ruling and hope that the 11th Circuit Court of Appeals will come up with a different decision. 

A motion has now been filed, as you said, in front of the 11th Circuit.  And a ruling from them could come at any time.  But legal experts say that the Schindler family, Terri Schiavo‘s parents, face a number of legal hurdles, perhaps insurmountable for two main reasons. 

First of all, you now have a federal judge who has had a record presented to him and has declared that he has found nothing wrong with the litigation record in Florida.  And, secondly, when you take a closer look at the law that Congress passed this weekend, Congress does not require that the federal courts start with the supposition that there are merits to any lawsuit the Schindler family brings. 

In other words, the judge—it was up to the judge to first determine

if there were merits.  The judge determined that there were not merits

based on the arguments put forward and therefore he would not grant the

relief.  He would not grant the request to have the feeding tube reinserted

·         Chris.  

MATTHEWS:  David, a lot of people watched us on Sunday night as we went to midnight and then the vote that was taken on the House floor, the House of Representatives floor in the early minutes of Monday.  And everyone went to bed Monday night—actually Sunday night, early Monday morning, thinking, you know, it looks like the president has won here.  It looks like the Republicans have won as far as the partisan fight to get these feeding tubes reinserted in Terri Schiavo, so that she would live.  What really went wrong—can you tell? -- in that plan so far? 

SHUSTER:  Well, Chris, what went wrong—well, first, let‘s start with what went right. 

First of all, they did get essentially jurisdiction, which is the first requirement to launching a lawsuit.  To launching a lawsuit, you have to get a judge to accept that you have standing and jurisdiction.  So, the law did that.  But when you look at the relief, the request for the injunctive relief that the tube be reinserted, Congress in their bill said that, after a determination of the merits of the suit, the district court shall issue such injunctive relief. 

In other words, after the court decides whether any particular lawsuit has merit, then the court decides whether or not in fact the tube can be reinserted.  So, Congress did not say, look, the federal courts must start by reinserting the tube.  They said, the courts must start by giving standing to the Schindler family, which they did, but then it is up to the judge to determine whether or not the arguments put forward have merit. 

And, in this particular case, when the Schindlers said that Terri Schiavo‘s due process has been violated, the court said, no, there‘s nothing in the record that suggests her due process has been violated.  So, in that case, the judge is claiming he followed what Congress wanted.  He made a decision on the merits and this was the result. 

MATTHEWS:  Thank you, David.

Let‘s get more on this information, more on today‘s legal drama of the Terri Schiavo case from attorney William Colby.  He is the author, of course, of “The Long Goodbye,” in which he chronicled a case similar to this one.  Dorothy Timbs is legislative counsel to the National Right to Life Committee.  And Mary Cheh is a professor of law at the Georgetown University Law School. 

Let me go right now to William Colby.  Is this what happened?  The Congress assumed there would be a decision by the judge to reinsert the feeding tubes while the federal court decided the case?  And that‘s not what happened, that sequence. 

WILLIAM COLBY, AUTHOR, “LONG GOODBYE”:  Well, I don‘t know what Congress assumed, Chris, but I think the law was just as it was described in the lead-in, that it gave jurisdiction or standing in the federal courts, but then gave it to the federal judge to look at the standard for an injunction or a stay, which is a standard that‘s been in place in federal courts for a long time. 

He in essence looked at the merits and did a mini-trial before issuing a stay to see if there was a substantial likelihood of success on the merits for the Schindlers and looked at the due process the Florida courts had been through.  And the trial judge concluded that there was not a substantial likelihood, so did not issue the stay. 

MATTHEWS:  Professor Cheh, what went wrong here in the thinking of those who were advocating federal intervention? 

MARY CHEH, GEORGE WASHINGTON UNIVERSITY LAW SCHOOL:  Well, I think it is true that Congress was fairly clever in giving jurisdiction, but it is also true that they could not have prescribed a rule of law here because all they could do is prescribe that whatever is out there be perhaps reexamined. 

And I think we have it right.  When you ask for a temporary order, there are two things.  You have to show irreparable harm.  And, presumably, they could have done that, because these dire circumstances.  So, she—her death will ensue.  But you also have to show a substantial likelihood of success on the merits, because why should we enter an order, a special, extraordinary order if you‘re not going to win anyway? 

And how could she possibly—how could the parents, rather, possibly win here, when the only claim they had was due process of law?  Now, there are two aspects.  One is procedural due process.  Did the parents have on her behalf a full and fair opportunity to litigate this case through the Florida courts?  Unquestionably yes.  And if that‘s true, then the outcome, that it was her wish to end unwanted medical care, is her constitutional right. 

So, it‘s not enough for the parents to say, we didn‘t like the outcome.  They have to say there was something bad with the process.  And that, they were unable to do that.  I think the lawyers erred here.  They hope that they could just lean on the emotional aspects, the dire calamity aspect, irreparable harm.  They didn‘t give the judge enough to think that there was some plausible claim on the merits. 

(CROSSTALK)

MATTHEWS:  On the point of law, didn‘t they have a claim?  I want to get to Dorothy in a minute. 

Mary, Mary—Professor Cheh.

CHEH:  Yes. 

MATTHEWS:  Didn‘t the petitioners have a right to claim that the judge didn‘t bother to go look at Terri Schiavo, never saw her, never recognized or tried to understand her condition, and therefore they could say that the judge didn‘t act fairly?

CHEH:  No.  The judge acted fully and fairly.  There was testimony from experts.  The judge even appointed guardians to make reports to the court.  The court doesn‘t have to traipse down to her hospital bed, and happily not, I suppose, because the judge would rely on evidence that is presented in court. 

And to talk about due process, a full and fair opportunity to litigate a matter, you couldn‘t have had a better due process here. 

(CROSSTALK)

MATTHEWS:  OK. 

OK, let me go right now to Dorothy Timbs.  Was there or was there nation a dispute over the woman‘s condition?  And, secondly, is that dispute over her condition relevant, to your thinking? 

DOROTHY TIMBS, NATIONAL RIGHT TO LIFE COMMITTEE:  Well, absolutely. 

There‘s a dispute over whether she is in a persistent vegetative state, and, most importantly, whether these were her actual wishes.  And what everyone is missing here is that Congress passed and the president signed a law that entitles Terri Schindler Schiavo a de novo trial.  She is entitled to create a new record. 

And what happened yesterday on oral argument was not creating a new record.  It was deferring to state court proceedings.  The law actually states the district court judge shall conduct a de novo proceeding.  The district court judge is not to defer to everything that happened in the state court.  That‘s the whole reason Congress conferred jurisdiction in federal court. 

MATTHEWS:  What is the—would the trial be about if it was a de novo trial, in other words, a start-from-scratch legal proceeding.  What would be the case that that judge should hear? 

TIMBS:  Well, for one, that these were not her wishes. 

We all know there was no written directive here, that we have a woman who is not terminally ill, who is suffering from a cognitive disability.  And it is questionable, highly questionable, whether she ever even made such an oral statement to her so-called husband that she wanted to be starved and dehydrated to death. 

MATTHEWS:  Why do you—why do—why do you say so-called husband? 

He is the guardian here.  Why do you do this? 

TIMBS:  Michael Schiavo is now—Michael Schiavo is—everyone knows Michael Schiavo is now living with another woman and who he has two other children with. 

MATTHEWS:  Right. 

TIMBS:  At the very least, there could be a conflict of interests. 

So, Congress and the president passed this law. 

MATTHEWS:  Explain again how it‘s a conflict—explain for the audience why it is a conflict of interests. 

TIMBS:  Well...

(CROSSTALK)

MATTHEWS:  He is the designated guardian.  You say he shouldn‘t be. 

Why not? 

TIMBS:  Well, we have other family member who are hotly contesting that any statements were made to this effect. 

And where this man has already gone on with his life, the family is merely asking to get on with theirs.  And, really, the crux of the matter is, where you have no living will, why can‘t we have one more federal hearing?  We‘re not talking about oral argument and an afternoon, a full hearing. 

MATTHEWS:  Let‘s go back to your point.  Dorothy, let me take your point to Professor Cheh. 

A judge sits down.  He meets with the petitioner.  He meets with the lawyers for—for Michael Schiavo.  Is that a hearing?  Or do you have to actually to go trial?  Do you have to have witnesses?  Do you have to have discovery, the whole bit?

CHEH:  Let me correct something at the outset.  The requirement that you have a de novo hearing depends upon whether, in the first instance, if you read Congress‘ statute, it says that the application is to determine if any of her constitutional rights have been violated. 

So, you have a de novo hearing if there‘s some plausible claim, some plausible, colorable claim that her constitutional rights have been violated.  So, to be rigorous about this, then you ask, well, what constitutional rights?  Has she been denied by the processes in the Florida courts an opportunity, a full and fair opportunity, to have the matter litigated? 

It doesn‘t matter if you think or if somebody else thinks that the facts should have been determined in a different way.  Was the process adequate and full and fair to make a determination?  If so, then no constitutional rights have been violated.  The only other constitutional right she could claim is this right to life.  But she has a constitutional right to stop unwanted medical care.  That‘s a constitutional right.  This law then would make the case that she would have to fight against herself.  She want to exercise her right.

TIMBS:  The problem here, though, is that these decisions have been made on oral argument.  The judge did not even allow for briefings on this case. 

Meanwhile, the whole subject matter of these proceedings will die and everything will become moot.  And so, we‘re asking for the Court of Appeals to simply reverse, so that there is time to determine whether there are claims to be made here.  What is the danger in determining that?  If these were her wishes and they are clear and convincing, let it be shown. 

(CROSSTALK)

MATTHEWS:  Let me ask you, Dorothy, how far will your organization and others like it who are fighting for the life of Terri Schiavo—do you want this to go to the United States Supreme Court?  And, if that‘s the case, you won‘t have a very long trial there.  In other words, this is not going to hold up the decision very long, no matter how far it goes, will it, unless you have a full-fledged trial.  Is that what you want?

(CROSSTALK)

TIMBS:  Absolutely.

Immediately, though, the issue is whether this temporary restraining order would be granted and whether the tube can be reinserted, so that we can go forward under this new law and have a de novo proceeding for Ms.  Schiavo. 

MATTHEWS:  And how long do you think that would take, to have the full-fledged hearing you would like to get? 

TIMBS:  It should take as long as it needs.  This is—we‘re talking about a woman whose life is on the line.

MATTHEWS:  Well, tell me how long you estimate.  You‘re here representing a position.  How long should it go? 

TIMBS:  It should take as long as it—as—well, for example, in Florida, it took a very long time. 

MATTHEWS:  A year?  Two years?  How long?  How long should...

(CROSSTALK)

TIMBS:  It could take a year.  It could take two years.  It takes long enough for witnesses to come forward and for us to determine whether these were her actual wishes. 

MATTHEWS:  So, you want to have—you basically want a de novo trial.  In other words, these 15 years of litigation, you want to replicate, do it over again and do it right by your standards?

TIMBS:  Absolutely. 

MATTHEWS:  OK.  It is going to be a long night. 

Anyway, thank you very much, William Colby, for joining us again. 

Thank you, Professor Cheh, from George Washington University. 

CHEH:  George Washington.

MATTHEWS:  And thank you, Dorothy.

I said that, George Washington. 

CHEH:  Yes. 

MATTHEWS:  I know the competition in the schools.   And it is a good one by both great schools.

Ohio was ground zero in the presidential race.  And the Buckeye State put President Bush back in the White House.  Ahead, we‘ll talk to Republican candidate for governor here, Secretary of State Ken Blackwell. 

You‘re watching HARDBALL, only on MSNBC. 

(COMMERCIAL BREAK)

MATTHEWS:  We‘re here in Ohio, the epicenter of the 2004 presidential election.  Coming up, Republican candidate for governor Ken Blackwell joins us when HARDBALL returns. 

(COMMERCIAL BREAK)

(NEWS BREAK)

MATTHEWS:  Welcome back to HARDBALL, on the road in Columbus, Ohio.

Just like the 2000 presidential race was all about Florida, in 2004, it was all about Ohio.  With 20 electoral votes, the state was the key to President Bush‘s reelection. 

Republican Ken Blackwell is Ohio‘s secretary of state and he was in charge of the state‘s voting on Election Day. 

Let me ask you, Mr. Secretary, this state, why is it the one that decided the election in 2004?  What about this state we‘re in right now makes it unique? 

KENNETH BLACKWELL, OHIO SECRETARY OF STATE:  You know, history is such that there hasn‘t ever been a Republican win the White House or retain the White House without carrying Ohio.  So, just instantly, we knew that Ohio was going to be the premier battleground state.  That fact hadn‘t been slept in the camp of Kerry or the camp of Bush.  And so...

MATTHEWS:  Jesse Jackson still angry about the way the vote went in Cleveland.

(LAUGHTER)

MATTHEWS:  In that area.  A lot of black voters voted Republican.  Was that because of your successful campaign, along with the help of people like Don King, to get the black ministers to push the issue of gay marriage and how much they opposed it as a lifestyle question? 

BLACKWELL:  I think there were a number of things.           

One, African-Americans are used to voting for Republicans, and black and white.  George Voinovich did well in Cleveland as a former Cleveland mayor and as governor.  I do well among African-American voters across the state.  But I think it was a combination of that habit of voting for Republicans and the issues that were on the ballot and the clear distinction between Mr. Kerry and Mr. Bush. 

MATTHEWS:  If there had been no gay marriage issue, no—or initiative on the ballot, which you were pushing and Don King was pushing, the guy with the hair, you know?

BLACKWELL:  Oh, I know Don? 

(LAUGHTER)

MATTHEWS:  OK.  Would Bush have won? 

BLACKWELL:  Oh, I think he would have won it.  But it would have been a much closer race.  You‘re just talking about turning 60,000 votes.  But what I tell...

(CROSSTALK)

MATTHEWS:  No, wait.  You turned 60,000.  That did it. 

BLACKWELL:  That‘s what I‘m saying.

MATTHEWS:  Well, I‘m talking about issues like—let‘s talk a little about the Schiavo case we‘ve been talking about tonight. 

BLACKWELL:  Right. 

MATTHEWS:  Is that the kind of issue you‘re happy to see the Republicans jump into with both feet? 

BLACKWELL:  Well, I think it is a responsible position that the Republican Party has taken.  But I think it is a responsible position for any person... 

(CROSSTALK)

MATTHEWS:  You‘re running for governor.  You‘re running for governor. 

BLACKWELL:  Right.  Absolutely.

MATTHEWS:  If you get to be governor of the state of Ohio, do you want the federal government coming in and saying, we don‘t like your court system?  I don‘t care how many 15 years of court cases, all those hearings, all that investigation, and we don‘t trust your judgment.  We‘re coming in here to overrule you.  Do you like that?

BLACKWELL:  I think the first responsibility of government is to protect life.  And I really do believe that.  And so I‘ve been a fighter against euthanasia.  I‘ve been a fighter against abortion on demand. 

(CROSSTALK)

MATTHEWS:  Right.  Is this euthanasia, after 15 years to not continue intravenous feeding? 

(CROSSTALK)

BLACKWELL:  I think so, because I really do think that life is sacred, no matter how painful. 

There was a 4th century theologian, Anicius Boethius, who said sometimes God writes crooked with straight lines.  You know, it isn‘t for government to choose to kill. 

MATTHEWS:  Right. 

BLACKWELL:  It is in fact for it to protect innocent life.  And in this case...

MATTHEWS:  At what point, Mr. Secretary, do reasonable people decide that a person in this kind of a state—I don‘t like the word vegetative, but that‘s what they call it in the books, where you have no awareness of human life.  Do you say 15 years of feeding and hydrating, you have to stop sometime or else you‘re going to just carry this person in this state for another 15 years?

BLACKWELL:  Chris, let me just say.

(CROSSTALK)

MATTHEWS:  Would you go 30 years?

BLACKWELL:  I would.

And let me just tell you, I don‘t think a guy who has broken the bond with this woman, who is living common law and, by common law, has divorced his—started a new family.

MATTHEWS:  Right.  OK.

BLACKWELL:  Should have the right to in fact kill her. 

MATTHEWS:  OK. 

Do you believe that, if he did not have that lifestyle, you would allow him to make this judgment? 

BLACKWELL:  I believe that, if he didn‘t have the lifestyle and if there were no family members other than he who in fact said, we want to attend to her, then in fact state law would have said that it is his call. 

MATTHEWS:  That‘s a view many hold.  Anyway, good luck in the race. 

BLACKWELL:  Thank you, sir.

MATTHEWS:  Secretary of State of Ohio Ken Blackwell. 

Still ahead, Columbus Mayor Michael Coleman on the Schiavo case.  Plus, “The Wall Street Journal”‘s John Fund and “The Chicago Tribune”‘s Jim Warren on whether there will be any fallout over Congress‘ action in this case. 

You‘re watching HARDBALL on MSNBC. 

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to HARDBALL, on the road in Columbus, Ohio.

Michael Coleman is now in his second term as mayor of Columbus, an important city in a crucial state in the battle for the White House. 

I will ask you the same question.  What makes Ohio so hot as a target for both parties now for president? 

MICHAEL COLEMAN (D), MAYOR OF COLUMBUS:  Well, it is the center of the universe when it comes to political judgment.  There‘s a lot of independents in the state of Ohio.  Sometimes, they vote Republican.  Sometimes, they vote Democrat.  But they look at the candidate and they make their judgment accordingly. 

MATTHEWS:  Well, why do you have two senators who are Republican and a

Republican governor if you‘re so independent here?>

COLEMAN:  Well, I think that the Republican Party has been successful for a lot of reasons.  One is, the Democrats haven‘t put up real strong candidates.  Secondly, they...

MATTHEWS:  Except for you. 

COLEMAN:  Well, that‘s right. 

MATTHEWS:  You‘re running, aren‘t you? 

COLEMAN:  I‘m running for governor. 

MATTHEWS:  And you‘re going to be a change in the wind, huh?

COLEMAN:  That‘s right. 

MATTHEWS:  You‘re going to turn things around. 

COLEMAN:  I‘m fed up with what‘s going on in the state of Ohio.  This state has really slid down and we‘ve got to turn it around.  And I‘m running for governor because there‘s no leadership.  And the folks of Blackwell, Montgomery, Petro and Taft, all of them have been part of this state for the past 12 years.  And they all have caused this state to crumble in many ways.  And it is time to turn the state around and make it great again. 

MATTHEWS:  Well, what do you do about a state—and everybody in the country talks about this.  It is called the Rust Belt, a bad phrase, but it‘s used for parts of the country that build everything else in America, the factories, everything.  We‘re here in Ohio and places like Pennsylvania.

If you get in as governor, can you really do anything in a state like this to turn the industrial part of this country around? 

COLEMAN:  Well, absolutely. 

(CROSSTALK)

MATTHEWS:  Can you reindustrialize America? 

COLEMAN:  Well, you have to—you have to focus on technology jobs in the state of Ohio.  You have to grow small business in the state of Ohio.  You have to reengineer the economy in the state of Ohio. 

MATTHEWS:  Right. 

COLEMAN:  You need the help from the White House as well. 

MATTHEWS:  Why, when I want to get my computer fixed, do I have to call Bombay?  Why do I get a guy with an Indian accent somewhere in Calcutta fixing my computer for me on the phone? 

(CROSSTALK)

MATTHEWS:  Why do we have those kind of trade laws?

COLEMAN:  You need to have it right here in the state of Ohio. 

MATTHEWS:  Well, how are you going to get that here?  How are you going to get those jobs, those phone bank jobs, those boiler room jobs here?

(CROSSTALK)

MATTHEWS:  All you have to do is be able to speak good English, answer a person‘s question.  Why do you have to go around the world to get those questions answered? 

COLEMAN:  Well, you can get them right here in the state of Ohio. 

That‘s the point.

MATTHEWS:  Why isn‘t it happening? 

COLEMAN:  Well, because of the leadership we‘ve had, Taft, Blackwell, Montgomery, Petro.  They have a been part of the old guard of the state of Ohio has caused this state to crumble over the past 12 years.  It‘s time for new leadership.  And that‘s what I wanted to provide. 

MATTHEWS:  Big labor all came out last time for Kerry and said, we‘re going to pound those guys.  We‘re going to turn this—the Democrats are going to win states like Ohio.  What happened to the power of labor, the power of an industrial state to be an industrial state, the real smokestack America?  All it is, is places where people leave, isn‘t it? 

COLEMAN:  Yes. 

Like I tell you, for the past 12 years, because of the leadership we do have, Ohio is the No. 1 donor state between the ages of 18 and 44.  They‘re leaving the state of Ohio in droves.  And we‘ve got to turn that around.

MATTHEWS:  Can I make a statement?

COLEMAN:  Yes, sir.

MATTHEWS:  This is not a question.  It‘s a statement.

COLEMAN:  Yes. 

MATTHEWS:  Your party, the Democrats, keep losing to Republicans over social issues like gay marriage and this Schiavo case thing.  How are you going to stop that?

COLEMAN:  What is the question again? 

MATTHEWS:  How are you going to stop people from voting on the basis of issues like Schiavo and abortion and gay marriage and start voting on jobs and trade? 

COLEMAN:  Well, they need to vote on jobs and trade. 

MATTHEWS:  How do you get them to do it?  How do you turn their heads? 

(CROSSTALK)

COLEMAN:  Well, you got to talk to them.  You got to go out into the communities, like I did.  I went all over northwest Ohio in the small counties, in the red counties. 

MATTHEWS:  Yes, while you‘re out there, Don King is around there hopping everybody up on the issue of gay marriage.  So, the black leaders are all pushing the Republican lever.  You guys are losing. 

COLEMAN:  Well, we‘re going to win the state of Ohio.  I‘m going to win the state of Ohio, because people will see—and they know.  They know the state of Ohio.  When you lose 280,000 jobs over a four-year period—we‘re the No. 1 donor state of young talent, where our school districts are in serious financial trouble, all because of the leadership we have now.  People want new leadership in the state of Ohio.  And it is time to turn the state around and make it great again.  And I‘m there to do it. 

MATTHEWS:  Sounds good.  Thank you.  We‘ll see how it works, Mayor Michael Coleman, a very popular mayor here of Columbus, a swing city in this state, not right, not left.  It decides every time. 

And with most polls showing support, by the way, for the removal of Terri Schiavo‘s feeding tubes, there will be a lot of fallout over the next couple days.  Did Congress do the right thing getting involved?  We‘ll see.

You‘re watching HARDBALL on MSNBC. 

(COMMERCIAL BREAK)

(NEWS BREAK)

MATTHEWS:  Welcome back to HARDBALL.

When it comes to the Schiavo case, new polls suggest that Congress may be out of step with the public.  A new ABC News poll shows that 63 percent favor removing Terri Schiavo‘s feeding tube and 70 percent say congressional involvement in the case was inappropriate. 

By the way, two-thirds of the people say that this is just politics. 

Let go to our guests, Jim Warren, “Chicago Tribune,” John Fund of “The Wall Street Journal.” 

Let me ask you, James Warren, is it possible that the whole emphasis and all the heat on this case have come from a small percentage of the American people? 

JIM WARREN, DEPUTY MANAGING EDITOR, “THE CHICAGO TRIBUNE”: 

Distinctly. 

But I will have to admit, I got it wrong initially, too, if this polling is correct.  I thought this initially was win-win for Bush.  Even if he lost the court case, he could point to those meanie liberal activist judges and still score a victory.  What I did not fully realize is how intensely personal a matter it is.  And it cuts against—cuts across all sorts of ideological lines. 

If you take a closer look, Chris, at that ABC poll, you see the claim that majorities of evangelicals, Catholics, independents, Democrats, and even almost a majority of self-described conservatives were against this action. 

MATTHEWS:  John Fund, your assessment of public opinion and passion on this issue. 

JOHN FUND, COLUMNIST, “THE WALL STREET JOURNAL”:  Well, I think that, if you look at this issue, the superficial first reading, of course, is against the Schiavo decision. 

But passion rules in politics.  The Democrats have been saying for years, Chris, the majority of the country is pro-choice.  If that‘s the case, why in the world have they been scrambling since the last election to be nice to pro-life voters, to curry favor with pro-lifers, to nominate pro-lifers in Rhode Island and Pennsylvania for the U.S. Senate?  It‘s because the people who vote on this issue, the people who are intensely interested are very much on the side of the Schindlers trying to save their daughter. 

MATTHEWS:  You know, the president, I think we all agree now, is a very good politician, especially in counsel with people like Karl Rove.  He knows what he is doing, and Karen Hughes, especially.  They have a sense of the country.  They may be off base on Social Security in the short run.  We‘ll see down the road.

But let‘s talk about the Schiavo case.  I noticed the president, John Fund, yesterday began to take a little off his pitch.  As he first entered this, he came back to Washington from vacation and took a very strong right and wrong position on this.  We‘re with the good guys.  Michael Schiavo is with the bad guys, clear-cut, black and white.  The other day, he seemed to take a little off the pitch, to say, you know, this is a complex issue.  Let‘s give it one more look.  Is he hearing those footsteps from behind that say: “Mr. President, don‘t get too moralistic or judgmental here.  Every American family has had experience in when to end the life of a beloved one.  And don‘t come in here like Cotton Mather and say there‘s a right and wrong”?

FUND:  Sure.  And there‘s a...

MATTHEWS:  Do you think that‘s possible?

FUND:  Yes. 

And there are a lot of conservatives who are troubled by the fact that Congress has intervened in such an extraordinary way in this case.  But, Chris, if Terri Schiavo can survive, the more that people look at the actual facts of this individual case and don‘t relate it to something that‘s happened in their own family or their own general feelings about it, I have to tell you, the sympathy will be more and more with Terri Schiavo‘s parents and brother and sister. 

Michael Schiavo, the closer you look at him, the more unsettling the whole case gets, because, frankly, he has not been a good husband.  It‘s one thing to leave Terri Schiavo.  It‘s one thing if he had divorced her.  But to take up with another woman, to have two children by her, and to still claim that he has the right to end her life, based only on a verbal statement that only he heard, I mean, those are very unsettling facts.  That‘s why this case is...

(CROSSTALK)

MATTHEWS:  Well, they may be unsettling.  They‘re also fun—John, they‘re also fun to raise. 

(CROSSTALK)

MATTHEWS:  I‘ve been watching this case for three days.  And people on your side of the argument continually go after Michael Schiavo.  I think we have got to stick to the facts here.  Is Terri Schiavo a person who can experience life again, or does a life—something has to be done here at some point?  And that‘s all I‘m asking.  Make your value judgments about Michael Schiavo. 

FUND:  Well, Chris...

MATTHEWS:  But the principal person here we have to look at is Terri Schiavo. 

FUND:  Chris, first of all...

WARREN:  John, all due respect—John Fund, all due respect to you and your passionate editorial page, as conservative ours—as ours, although ours today came out against the congressional intervention, which was quite interesting—if you look at the facts of the matter, John, you could argue that a slew of judges in the state of Florida, both Republicans and Democrats alike, decided this case not based on whether Mr. Schiavo is a nice guy, not whether he is more sensitive than the parents, not whether he was more trustworthy of the case, but because they felt he reflected her wishes on this matter.  Those were the facts of the matter. 

And that that‘s got to also then be distinguished from what I think is now becoming a paramount issue for Americans left or right, whether you are sensitive to right-to-life issues or not.  And that is, you don‘t want the government messing around in an intensely personal decision. 

FUND:  Jim, Jim...

WARREN:  I had a friend in New York who had to make a decision with his daughters last Friday whether or not to take his wife who was involved in a bizarre accident, whether or not to take her off her respirator.  And he sure as heck didn‘t want the United States Congress involved in that decision. 

FUND:  Jim, first of all, this is not a legal panel.  This is a political panel.  We‘re discussing the politics. 

You may be right on the legal issue.  I‘m discussing, the more the American people look at the facts of the case, the more unsettling they will be.  And, if you look at the Congress, the Congress has the right.  Remember, the judges are not the final say.  One of the most interesting things that is going to come out of this is, Article 3 of the Constitution says Congress decides the jurisdiction of the federal courts. 

Regardless of how this finally end up—and I think the law may well be on the side of letting Terri Schiavo die. 

(CROSSTALK)

FUND:  Regardless of how this ends up, Congress has the right to dictate to the courts what their jurisdiction is.  And that‘s what they went and did. 

MATTHEWS:  OK.

Let‘s talk possibly, John, about overkill here.  The lawyers for the parents have said, if their daughter dies, there will be a damnation of her soul.  This is overkill.  If you come in and say that, somehow, Terri Schiavo, in the state she‘s been in for 15 years, will somehow suffer punishment by God because she dies this way, what do you think of that kind of a statement by the lawyers...

FUND:  Chris.

MATTHEWS:  No, I want your response.

FUND:  Chris, one of the worst things that‘s happened is...

MATTHEWS:  What is your response to that?  To that?

FUND:  Chris, one of the worst things that‘s happened in this...

MATTHEWS:  No, I need that.

Let me go to Jim. 

Jim, I want a response to this.  It‘s an incredible statement.

WARREN:  Yes. 

MATTHEWS:  These are Roman Catholics saying that their daughter will be punished in hell because of the way this case is coming down.  I have never heard theology like that.  I have no idea where it is coming from.  But it smacks me as overkill.  And I don‘t think it is going to help the parents‘ case.

Jim Warren.

WARREN:  Yes, I mean, even factoring their—even factoring their extreme sensitivity, it is an absurdity too gross to be insisted upon.  It is a hyperbole beyond the pale. 

FUND:  Chris, one of the worst decisions the Schindlers made was to retain Randall Terry, who has in extreme background in the pro-life movement.  This is a man who is under court order not to go near abortion clinics.  This is a man who has made many extreme statements. 

I think the Schindlers did hurt their cause by retaining Randall Terry, because he is simply, despite his eloquence, bad news. 

MATTHEWS:  You agree, though, it is an awful thing to say that the daughter, who has been comatose, not really aware of things going on for 15 years, and somehow she will be blamed by God for what has been done in the courts?

(CROSSTALK)

MATTHEWS:  What does that mean to say something like that when you‘re Mr. Schindler or Mrs. Schindler? 

FUND:  Because the emotions run so highly and because everyone in this case seems to privately hate each other within the Schindler and the Schiavo families. 

MATTHEWS:  Well, that‘s a fair assessment. 

FUND:  I think—I think the statements are extreme and I think it is unfortunate this has spilled out on national television. 

MATTHEWS:  Well, it has spilled out when you start issuing statements by your lawyers saying your daughter is going to be damned to hell unless she gets the right decision in a court, which is the most screwball political and religious statement I‘ve ever heard, let alone the law.

Anyway, Jim Warren, thank you very much for joining us. 

John Fund is going to stay with us. 

And, later, an Alabama judge who waged a fight to keep the Ten Commandments in his courthouse will discuss the role of religion in public life as he sees it.

And don‘t forget, sign up for HARDBALL‘s daily e-mail briefing.  Just log on to our Web site, HARDBALL.MSNBC.com.

(COMMERCIAL BREAK)

MATTHEWS:  Still ahead, “Faith in America.”  Former Alabama Supreme Court Chief Justice Roy Moore on his battle to display the Ten Commandments.

HARDBALL returns after this.

(COMMERCIAL BREAK)

(NEWS BREAK)

MATTHEWS:  We‘re back with John Fund of OpinionJournal.com. 

John, Ohio has always been one of the most fascinating political states, as far as I‘m concerned, along with New York and California.  Do you think there was a smart White House move that helped bring up those numbers among African-Americans with regard to the gay marriage issue here? 

FUND:  Well, certainly.  Ken Blackwell, who has been a guest on your show, made something like four million phone calls with himself as the voice advocating a vote for the amendment over—to ban gay marriage.  That was very smart. 

Bush‘s African-American numbers went up 16 percent in Ohio, which is significantly higher than the national number. 

MATTHEWS:  Does this show a cultural sensitivity in this state particularly that would basically rule out a successful campaign here by Hillary Clinton, someone on the liberal side in the Democratic Party? 

FUND:  Oh, no.  Ohio is always going to be competitive. 

But, Chris, it is a red state.  It has consistently been voting Republican.  The only Democrat who has carried Ohio recently has been Bill Clinton and Jimmy Carter, people who were very culturally sensitive to the southern part of the state, where people have a lot of Southern routes. 

So, Hillary Clinton would have to move to the middle, which is what she‘s doing.  And she‘s obviously looking at Ohio. 

MATTHEWS:  Is she willing to become a Baptist? 

(LAUGHTER)

FUND:  Well, Chris, there‘s only so far you can...

MATTHEWS:  Because both of those guys were.  And, in the southern part of the state, it helps.  I‘m not kidding around here.  That‘s a fact. 

WARREN:  Well, I think—I think she‘s a Methodist and she can at least have conversations with them. 

Of course, Hillary can only go so far, because, obviously, she carries an image with her from the Clinton years.  And you can‘t wipe that out completely. 

MATTHEWS:  How do you go from being a woman who has attacked her husband‘s problem as a factor of the vast right-wing conspiracy, and then move further and further right and accept people—expect people to buy your act? 

FUND:  Well, I think that you put your nose to the grindstone and you be an effective senator, which she has been.  She serves on the Armed Services Committee.  She supported the war in Iraq.  Let‘s put it this way.  She will never look equivocal the way that John Kerry did in the 2004 campaign. 

MATTHEWS:  Fair enough.  And neither will you, John.  Thank you very much, John Fund. 

When we come back, “Faith in America.”  We‘ll talk to former Alabama Supreme Courter Chief Justice Roy Moore about his battle to display the Ten Commandments. 

And don‘t forget to read our political blogs on Hardblogger.  Just go to HARDBALL.MSNBC.com.

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to HARDBALL.

As part of MSNBC‘s special series this week on “Faith in America,” I spoke to former Chief Justice of the Alabama Supreme Court Roy Moore, who waged a pitched battle to keep a 2.5-ton monument to the 10 commandments in his court building.  He was ultimately unsuccessful and lost his job.  Judge Moore wrote a book about the experience entitled “So Help Me God: The 10 Commandments, Judicial Tyranny and the Battle For Religious Freedom.”

I began by asking Judge Moore if the fight was worth it. 

(BEGIN VIDEOTAPE)

ROY MOORE, FORMER ALABAMA CHIEF JUSTICE:  Absolutely.  Absolutely. 

I think America is waking up to the fact that religion and God are not synonymous, that God is what this nation was founded upon, what our morality comes from.  So I think it‘s...

MATTHEWS:  But wasn‘t the God who gave us the Ten Commandments the God of Abraham? 

MOORE:  The God of Abraham, Isaac and Jacob, yes. 

MATTHEWS:  Right.  But he was a God of a particular religious tradition. 

MOORE:  Yes. 

MATTHEWS:  That began with Abraham.

MOORE:  Yes, the Judeo-Christian faith, yes.

MATTHEWS:  But that‘s the covenant that we all—that Christian, Jewish tradition honor as the beginning of man‘s communication with our God. 

MOORE:  Yes. 

MATTHEWS:  Well, that‘s not a general recognition.  Buddhists don‘t believe in that God. 

MOORE:  No. 

MATTHEWS:  Well, what‘s the difference?  Aren‘t you identifying...

MOORE:  Because...

MATTHEWS:  Are you selecting a God of your choice? 

MOORE:  No, no.  We‘re selecting the God upon which the First Amendment was founded, the God that gave us...

MATTHEWS:  But that‘s the Judeo-Christian God. 

MOORE:  The God that gave us religious freedom. 

MATTHEWS:  Right. 

MOORE:  In fact, in 1931, in U.S. vs. Macintosh, the United States Supreme Court recognized explicitly that, that our religious freedom comes from the acknowledgment and obedience to the will of God. 

MATTHEWS:  But you said before that you didn‘t like people pegging the justification for God in our public life on history, that you wanted to judge—base it on your belief, right? 

MOORE:  No.  I base it on the organic law of our country, the Declaration of Independence, that God gives us our rights and government is there to secure those rights.  And if it doesn‘t, the Declaration said it should be abolished, which is what they did with the government of Great Britain. 

MATTHEWS:  Yes.  Do you believe in a universally recognized God? 

There is one God recognized by all religions and it is the same God? 

MOORE:  No, not necessarily.  I believe the God that this nation was founded upon is a particular God, the God that gave the Ten Commandments. 

MATTHEWS:  So it‘s Judeo-Christian God?

MOORE:  The Judeo-Christian God, the God that the Jews and the Christians worship.

(CROSSTALK)

MATTHEWS:  You go back to Genesis.

MOORE:  Yes. 

MATTHEWS:  Do you think Genesis should be part of our public life? 

Should we believe in it as written? 

(CROSSTALK)

MOORE:  I think Genesis was the basis upon which life, liberty, and property were put in the Fifth and 14th Amendments to the United States Constitution. 

For example, life was defined out of Genesis as the immediate gift of God, a right inherent nature in every individual, and it begins in contemplation of law as soon as the infant stirs in its mother‘s womb.  There were similar definitions for liberty and... 

MATTHEWS:  But when we create public schools that have to teach science...

MOORE:  Sure.

MATTHEWS:  Usually by high school level, teach biology, for example. 

MOORE:  Sure.

MATTHEWS:  How do you teach Genesis as true biology, true science?

MOORE:  I don‘t think you teach Genesis as the science.  You teach the creationism. 

MATTHEWS:  Well, creationism.  Well, isn‘t that—is that a scientific belief? 

(CROSSTALK)

MOORE:  That is a scientific belief in many opinions, yes. 

MATTHEWS:  Not opinions, but is it scientific belief?  In other words, if you send someone to medical school, would you want them to study creationism as part of their biology testing and education?

MOORE:  I would.  I sure would. 

MATTHEWS:  You would want them to study creationism? 

MOORE:  Sure.  Sure.

MATTHEWS:  What value would that have in their training? 

(CROSSTALK)

MOORE:  Because there‘s no—there‘s no scientific evidence of evolution. 

Evolution is a theory and has been recognized so by many.  You have always heard of the missing link, haven‘t you? 

MATTHEWS:  Right. 

MOORE:  It is still missing.  In other words, they can‘t explain how male and female came and every species from one atom or one amoeba. 

MATTHEWS:  So, when you study all the kingdoms and you study all those things in schools.

MOORE:  Sure.

MATTHEWS:  You had to study it, too, like I did, right?

MOORE:  Sure.

MATTHEWS:  You have Homo sapiens.  Do you believe in those distinctions, man and there‘s certainly—there‘s the primates. 

(CROSSTALK)

MOORE:  ... you‘re asking my personal belief...

MATTHEWS:  No, I‘m asking what your scientific belief is, what we should teach our doctors. 

MOORE:  My scientific belief is that we were created.  And it is clearly evident in the system of the universe. 

MATTHEWS:  In the days of creation. 

MOORE:  That‘s my personal belief, yes. 

MATTHEWS:  No, but, see, you can‘t have that—you can‘t have that institutionalized belief in terms of a society.  You can‘t hold to the fact that we were created in seven days if there was no such thing as seven days until there was a sun and there was an Earth.  That‘s what a day is. 

MOORE:  There are different beliefs.

MATTHEWS:  The relationships—no, no.

MOORE:  Yes. 

MATTHEWS:  The definition of a day is the relation between the Earth and the sun. 

MOORE:  Yes, sure.

MATTHEWS:  Before God—God couldn‘t have operated under a calendar of days before he created the sun. 

MOORE:  Sure.  I don‘t...

MATTHEWS:  How can he do that?  It doesn‘t make any logical sense. 

MOORE:  Well, my personal belief is literal, that there were seven days.  But...

MATTHEWS:  You‘re holding to a reverence for belief.  I understand completely. 

MOORE:  Yes. 

MATTHEWS:  Religion is about belief. 

MOORE:  Yes. 

MATTHEWS:  But is it something you can teach in terms of science in school? 

MOORE:  I think creationism is something you can teach in terms of science in school.  Yes, I do. 

MATTHEWS:  Well, how can you teach that it is scientifically possible to have days before there‘s a sun? 

MOORE:  Well, when you‘re talking about creationism, how can you teach that there wasn‘t?  How can you teach the negative? 

MATTHEWS:  No, I‘m just saying...

(CROSSTALK)

MATTHEWS:  I‘m just talking about logic.  I‘m just...

MOORE:  Yes.

MATTHEWS:  This is obviously very sensitive to many people. 

MOORE:  Sure. 

MATTHEWS:  I agree that two out of five Americans believe in the days of creation as written in Genesis verbatim.  I accept that.

MOORE:  I think...

MATTHEWS:  But I‘m talking about public schools and how you organize, how you teach kids to be doctors, how you train them to think logically for law and other practices.  Can you do that in the context of a complete fundamentalist religious commitment?  Can you do that?  Or do you have to separate? 

(CROSSTALK)

MOORE:  No, I don‘t think you separate God from the state, the God that created man from the state. 

MATTHEWS:  Right. 

MOORE:  That‘s not separation of church and state. 

And I think, in a state nation which was begun on the premise that we hold these truths to be self-evident, that all men are created equal, it absolutely makes no sense for the government to mandate that there is no creation.  The very basis of the Declaration was that God give us rights and government was to secure those rights.  If you teach there is no God, there‘s no creation...

MATTHEWS:  Look, I—you‘re talking to somebody who believes in natural law.  I believe we hold these truths to be self-evident.

MOORE:  Yes. 

MATTHEWS:  Man is endowed by his creator with certain inalienable rights. 

(CROSSTALK)

MATTHEWS:  I agree with that.  I think Judge Thomas, when up for Supreme Court, should have said so. 

MOORE:  Yes.  I do, too.  I agree with you.

MATTHEWS:  Instead of denying his belief. 

This is different.  This is institutions.  Let me ask you this.  When you watch what happens over in countries like Iran...

MOORE:  Sure. 

MATTHEWS:  We have a bunch of mullahs, religious leaders who believe in their God as much as you are committed to your religion. 

MOORE:  Sure.  Sure.

MATTHEWS:  And they are ruling the state, do you think that‘s a good system? 

MOORE:  I don‘t think the state or church should control the state, no more than the state can control the church, no. 

And, in America, there is a separation of church and state, but not a recognition of separation of God and state.  God must...

MATTHEWS:  You remember when Jesus—you‘re a Christian. 

MOORE:  Sure. 

MATTHEWS:  Jesus said render unto Caesar the things that are Caesar and to God the things that are God.

MOORE:  That‘s right. 

MATTHEWS:  God, he sees—in his teaching to us in the New Testament said, separate the two. 

MOORE:  He said, render to Caesar the things that are Caesar‘s, to God the things that are God‘s.  What belongs to God? 

MATTHEWS:  Right. 

MOORE:  The relationship between man and God belongs to him and the freedom of conscience.  That‘s what he‘s talking about.

MATTHEWS:  Judge Moore, we will continue this at a later date.  Thank you very much for coming. 

(CROSSTALK)

MOORE:  Yes, sir.   

MATTHEWS:  It will never end, this argument, but thank you, sir.

MOORE:  Thank you. 

(END VIDEOTAPE)

MATTHEWS:  Join us again tomorrow night at 7:00 Eastern for more HARDBALL.  “Faith in America” week continues.  I‘ll be joined, by the way, by Rick Warren, author of the book “The Purpose Driven Life.”

Right now, it‘s time for the “COUNTDOWN” with Keith. 

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