updated 3/24/2005 10:26:54 AM ET 2005-03-24T15:26:54

Guest: Patrick McHenry, Anthony Weiner, William Donahue, Dorothy Timbs, Larry Klayman, Geoffrey Fieger, Alan Dershowitz, Randall Terry

JOE SCARBOROUGH, HOST:  As Terri Schiavo enters her sixth day without food or water, the only court that can save her now and stop her from starving to death is the U.S. Supreme Court. 

Welcome to SCARBOROUGH COUNTRY, no passport required and only common sense allowed. 

Terri Schiavo at death’s door.  Today, judges in Atlanta almost surely doomed her to death.  Meanwhile, Democrats and a few Republican senators in Florida ignored Terri’s parents’ final desperate pleas. 

(BEGIN VIDEO CLIP)

MARY SCHINDLER, MOTHER OF TERRI SCHIAVO:  Please, someone out there, stop this cruelty.  Stop the insanity.  Please let my daughter live. 

(END VIDEO CLIP)

SCARBOROUGH:  Meanwhile, Florida Governor Jeb Bush jumped in to try to get custody of Terri Schiavo.  But he, too, was turned down. 

(BEGIN VIDEO CLIP)

GOV. JEB BUSH ®, FLORIDA:                  I’m doing everything within my power to make sure that Terri is afforded at least the same right rights that criminals convicted of the most heinous crimes take for granted. 

(END VIDEO CLIP)

SCARBOROUGH:  Tonight, a medical, legal and political crisis rising to the boiling point in Florida. 

And my “Real Deal” a confession on the Terri Schiavo case. 

ANNOUNCER:  From the press room, to the courtroom, to the halls of Congress, Joe Scarborough has seen it all.  Welcome to SCARBOROUGH COUNTRY.

SCARBOROUGH:  You know, it’s now been about six days, nine hours since Terri Schiavo was unhooked from her feeding tube.  You’re looking live at the hospice where Terri is lying dying right now tonight.  Her parents’ legal options and time are both running out.  The 11th Circuit court in Atlanta has turned down the family twice, and today Florida Governor Jeb Bush stepped in, saying new evidence shows that Terri is not, as many people claimed, in a persistent vegetative state. 

(BEGIN VIDEO CLIP)

BUSH:  This new information raises serious concerns and warrants immediate action.  Terri is now going on her sixth day without food or water.  It is imperative that she be stabilized so that the Adult Protective Services team can fulfill their statutory duty and thoroughly review all of the facts surrounding her case. 

(END VIDEO CLIP)

SCARBOROUGH:  You know, the Florida governor is trying to step in and take custody of Terri.  And, today, we saw arrests outside the hospice, as people tried to sneak past armed guards to bring Terri water, desperately trying to keep her alive. 

Mark Potter has been following the fascinating developments throughout the entire day.  And he’s standing by outside the hospice with the very latest. 

Hey, Mark, what do you got tonight? 

MARK POTTER, NBC CORRESPONDENT:  Well, Joe, the big news tonight of course involves what you started with, the U.S. Supreme Court. 

The lawyer for the family, David Gibbs says, indeed, despite the late hour, he will be filing sometime tonight his appeal with the U.S. Supreme Court.  David Gibbs was in a hearing earlier this evening.  And that explains the delay in getting the paperwork to the high court.  He said after the hearing he had to go to his office and start working on the appeal there. 

It’s the culmination, really, of a very busy and dramatic day that went into the night.  After losing those two appeals before the 11th Circuit in Atlanta, the parents then turned to the Florida legislature, hoping that the Florida Senate would approve a bill that could lead to a law that can protect Terri Schiavo. 

But, after a debate, the Senate shot it down by a vote of 21-18, this despite an impassioned plea by Terri Schiavo’s mother, Mary Schindler. 

(BEGIN VIDEO CLIP)

SCHINDLER:  Please, someone out there stop this cruelty.  Stop the insanity.  Please let my daughter live. 

(END VIDEO CLIP)

POTTER:  Now, after losing in the Florida legislature, losing that vote in the Senate, the parents then turned to Florida Governor Jeb Bush, turning to him once again.  The governor suggested that perhaps the Department of Children and Families, a state protective agency, could get involved and even take custody of Terri Schiavo.

Among the grounds, as you said earlier, Joe, their belief that she perhaps was misdiagnosed as being in a persistent vegetative state.  They’re arguing that, according to a doctor that they have talked to, she’s at least minimally conscious.  But after raising that argument at a hearing this afternoon before Judge George Greer in Clearwater, the judge who ordered the feeding tube removed, they lost in their attempt to get a motion to take custody of Terri Schiavo. 

The judge refused to grant the state that right.  The hearing then went on and the state asked for a stay, at least, putting the tube back in, so they could continue their investigation into Terri Schiavo’s condition.  The judge has said that he’ll rule on that by noon tomorrow.  But, again, this is a judge who’s consistently rule against the parents.  So all eyes now are on the U.S. Supreme Court—Joe.

SCARBOROUGH:  All right, thanks a lot, Mark Potter.  We greatly appreciate your report. 

Now, obviously, it’s been another long, emotional day for the family of Terri Schiavo. 

And with me tonight, we’ve got a spokesman for Terri’s parents, Randall Terry. 

Now, Randall, more bad news today.  It looks like the courts are against you.  It looks like the Florida legislature is against you.  It doesn’t look like Terri Schiavo has too many people in government that are willing to protect her right just to be fed. 

RANDALL TERRY, SPOKESMAN FOR PARENTS OF TERRI SCHIAVO:  Well, first of all, all eyes are not on the Supreme Court.  There’s a lot of eyes, including the family’s eyes, that are on the Department of Children and Families and Governor Bush. 

And the question we have is this.  The DCF attorney today said that they have the statutory authority to take her into custody.  And they could do it.  Why in the name of God did they go to Judge Greer to ask permission to enforce the statutes of Florida?

SCARBOROUGH:  Wait, wait, wait, wait, wait.. 

(CROSSTALK)

SCARBOROUGH:  No, hold on. 

TERRY:  No, no, no.  They said...

SCARBOROUGH:  No, no, hold on a second. 

Are you telling me that Jeb Bush and his attorneys didn’t have to go to this judge, who’s ruled against her from the very beginning?  They could just take control of her? 

TERRY:  You bet.

No.  The statute gives them authority to do it.  Does the DCF go to a judge to ask permission if it intervenes to save a baby from being abused or a teenager who is being molested?  No.  They do their job.  They enforce the statutes of the state of Florida.  This judge has literally told the governor and the DCF to not enforce the law. 

And what’s really crazy is that they’re listening to him. 

SCARBOROUGH:  Well, you know, what I don’t understand is this.  We’ve got all these courts that have intervened.  We have got all of these courts that have done reviews.  We’ve got the United States Congress that has told the federal district court in Tampa, Florida, review this case.  Look at the facts.  Everybody keeps going back.

And they’re deferring, Randall, to this one judge, this one judge who’s decided she’s going to starve to death.

TERRY:  It’s insane. 

SCARBOROUGH:  And every other court in America is deferring to him. 

Why? 

TERRY:  It’s insane, because we are watching not only the death of Terri Schiavo.  We are watching the death of true shelf government, representative government and the rule of law, where the judges act like little tin-pot dictators.

And we—and we—and our chief executives and our legislators agree to listen to them. 

SCARBOROUGH:  You know, this is—you know, you’ve worked on life issues.  You’ve been attacked in the past for being overly aggressive on life issues. 

I’ve got to tell you, I’ve always believed in so many cases that reasonable minds can differ.  I have had friends that have been pro-choice, even though I’ve always been pro-life.  But, in this case, the more people I talk to, the more people that learn about Terri Schiavo’s case, the more they realize she’s being starved to death.

TERRY:  Yes. 

SCARBOROUGH:  She’s being killed simply because she cannot feed herself.  If we applied that standard...

TERRY:  That’s actually not true.

SCARBOROUGH:  Infants would die. 

TERRY:  It’s not true that she can’t feed herself.

SCARBOROUGH:  The elderly would die.  Alzheimer’s people—

Alzheimer’s people would die. 

TERRY:  That is all true, except that she can swallow. 

Here’s the part that’s so horrifying about this.  She swallows a liter of her own saliva every day.  She’s not aspirated.  She doesn’t drool and she doesn’t gag.  She could have ice chips put in her mouth.  This court, this whole proceeding with Judge Greer has been a scam from the beginning.

And that judge, that federal judge that where the firm went originally, the circuit court judge, should be ashamed of himself, because he was supposed to review the entire case.  Are you going to tell me he reviewed 10 years of proceedings in an hour and a half? 

SCARBOROUGH:  I know.  And, you know, the thing is, we don’t...

TERRY:  That’s crazy.

SCARBOROUGH:  We don’t want to get locked up in too many legal details, but Congress ordered a de novo review.

TERRY:  Right. 

SCARBOROUGH:  Which means you wipe the slate clean.

TERRY:  And start again, start fresh.

SCARBOROUGH:  It means you look at all the facts.

TERRY:  Yes. 

SCARBOROUGH:  It means you look at the law.  This guy basically said, I’m not going to do it. 

Randall, we’re—I’ll tell you what.  We’re going to be down there tomorrow night.  I’m want to talk to you personally.  Thanks for your efforts.  I greatly appreciate it.

TERRY:  Thanks...

(CROSSTALK)

SCARBOROUGH:  Now let’s bring in a Harvard Law Professor Alan Dershowitz.  He’s the author of “Rights from Wrongs: The Origins of Human Rights in the Experience of Injustice.”

Now, Alan, OK, let’s assume a couple of things, first of all.  Let’s assume all politicians are hypocrites.  Republicans are hypocrites.  Democrats are hypocrites.  Let’s assume that judges are more interested in grabbing power.  I don’t think there’s a bias here politically as much as there is a bias against Congress telling the judiciary what to do. 

Let’s talk instead about bigger concepts, because—because you’re an expert on human rights.  What does it say about our country that here we are, the richest country on Earth, and we’re all just sitting here watching this young lady starve to death?

ALAN DERSHOWITZ, AUTHOR, “RIGHTS FROM WRONGS”:  Well, the legal situation is, whether you approve of it or not that, the court has ruled that this is the young woman’s choice, that she has made a decision to die and they are simply enforcing her will. 

My own view, if I were writing the Florida law, would be very different.  I would say that the statement of one person reported by one other person, not in writing...

SCARBOROUGH:  Hearsay.

DERSHOWITZ:  ... should not be enough to overcome the presumption of life, that you have plenty of time, all of eternity to be dead, and only a short time to live. 

And I would agree with President Bush that you should always err on the side of life.  I wish he took the same view in capital punishment cases when he had been governor of Florida (sic), but not everybody is consistent.

But point, though, is that this is not a matter of the judges.  This is, the state legislature has made a decision that the husband’s view of the wife’s best interest prevail.  The legislature now had an opportunity today to change that.  They didn’t.  And the same people who say, give the legislature the power, don’t let judges overrule legislatures, we don’t want judges to become judicial activists, suddenly today want judges to become judicial activists. 

(CROSSTALK)

SCARBOROUGH:  But, Professor, Judge Greer, though, Professor, is the finder of fact, the ultimate finder of fact.

TERRY:  That’s right. 

SCARBOROUGH:  And it seems interesting to me, though, that the federal courts, the state courts, everybody is deferring to this one judge’s judgment.  This guy has decided she’s—the facts are on her husband’s side.  She’s going to die. 

DERSHOWITZ:  And, by the way, if this had been a capital case and the judge has made findings of fact and said that the person was guilty and that the mitigating factors were outweighed by the aggravating factors, many of the same people would say, you don’t want courts overruling that finding of fact. 

You mentioned also Congress’ legislation.  This is very dangerous.  What Congress said was, we’re passing a law for only one human being, only this woman.  It doesn’t apply to anybody else.  If the tube was going to be pulled on anybody else, they don’t have the right to review.  And so I think, if the Supreme Court were to review this case, it might very well strike down that congressional legislation as unconstitutional.  Indeed, I think it would be Justice Scalia, the most conservative justice on the court, who would take the lead, saying that Congress doesn’t have the power to legislate for a particular individual. 

This is a matter of state power.  And the state of Florida, whether you agree with them or not—and I don’t agree with them—I think Florida has made the wrong decision here.

SCARBOROUGH:  Right. 

TERRY:  Were I a Florida judge or a Florida legislator, I would have come out the other way.  But I think you do have a system.  And the system says that whatever the state decides in a case like this, that has to be the rule.  And...

SCARBOROUGH:  And, Professor, you know what?  As you’ve pointed out, as I said in 1994, when I ran, as my Republican colleagues said, we support states’ rights.  The state of Florida is deciding it and that’s why she may die. 

Professor, thanks so much for being with us tonight. 

DERSHOWITZ:  Thank you. 

SCARBOROUGH:  We greatly appreciate it.

I’ll tell you what.  Still ahead, tonight’s “Real Deal,” my own confession about the Terri Schiavo case.  Stick around for that. 

And, later, Geoffrey Fieger, the lawyer for Dr. Jack Kevorkian.  Kevorkian of course has been in prison for six years for his role in assisted suicide.  We’ll talk to him and many more in just a minute.

(COMMERCIAL BREAK)

SCARBOROUGH:  You know, Terri Schiavo is really—she is lying at death’s door.  And it doesn’t look like judges or Florida politicians are going to do anything to save her life.  We’ll talk about that and the Supreme Court when we return.

(COMMERCIAL BREAK)

(NEWS BREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  I’m just pleading with got almighty to soften the hearts of our legislators, to soften the hearts of our judges, to soften the hearts of the American people and begin to protect all that are vulnerable. 

(END VIDEO CLIP)

SCARBOROUGH:  Scenes, of course, in central Florida. 

Let’s bring in now Geoffrey Fieger.  He is the attorney who represented Dr. Jack Kevorkian, who’s been sitting in prison since 1999 for his role in multiple assisted suicides.  We also have Larry Klayman.  He’s the attorney for the conservative grassroots movement RightMarch.com.  And also still with us, Harvard Law Professor Alan Dershowitz. 

Let me begin with you, Mr. Fieger. 

You’ve been down this road before.  Tell me, why should we as Americans feel like any justice is being served when you have a 41-year-old helpless woman starving to death. 

GEOFFREY FIEGER, DEFENSE ATTORNEY:  Well, what if Terri Schiavo was a child and her parents had decided to remove her from life support and the grandparents came in and said, no, we don’t want you to?

SCARBOROUGH:  But she’s not on life support. 

FIEGER:  Excuse me. 

SCARBOROUGH:  No.  She’s not on life support. 

FIEGER:  You’re absolutely and totally wrong.  A feeding tube, which is a fairly new innovation, is exactly the same as a breathing... 

SCARBOROUGH:  You call that life support? 

FIEGER:  Absolutely. 

SCARBOROUGH:  Just because she can’t feed herself?

FIEGER:  Excuse me.  Don’t—absolutely.  Just like if she couldn’t breathe.

SCARBOROUGH:  What about infants? 

FIEGER:  Well, that’s—I’m talking about infants.  If she had...

SCARBOROUGH:  What about people with Alzheimer’s?  Do we kill them? 

Do we not feed them?

FIEGER:  Wait a second.  Wait a second.  Let’s talk about it.

A breathing respirator is exactly the same qualitatively as a feeding tube. 

SCARBOROUGH:  No, it’s not.

FIEGER:  It certainly is.  Terri Schiavo can’t swallow, contrary to what that spokesman said.  She can’t eat.  She’s totally dependent upon somebody...

SCARBOROUGH:  How do you know that?  FIEGER:  ... injecting—because I’ve read the records.  Have you?

SCARBOROUGH:  Have you read the—have you read an affidavit of a nurse in 2003...

FIEGER:  Yes, I have.

SCARBOROUGH:  ... that is in the court records that said she swallowed Jell-O?

FIEGER:  That’s right.  And I have read the records of 12 neurologists, independent neurologists, who examined her on behalf of Florida’s courts, who unanimously said, she’s vegetative.  She doesn’t think.  She doesn’t see.  She doesn’t do anything. 

The only thing that works, Joe, is the autonomic nervous system, which allows her to breathe.  She can’t eat.  She’s no different than anybody on a respirator.  If you can remove a respirator, you can remove a feeding tube.  She doesn’t know what’s going on. 

SCARBOROUGH:  And you know that?

FIEGER:  And, frankly, the misrepresentations that are taking place about the factual scenario are just incredible.  Why do you think court after court—they’re not just deferring to one judge.  They’re taking a look at this record.  And this record is voluminous and overwhelming. 

SCARBOROUGH:  Wait.  Wait.  Wait a second.  Hold on a second. 

You say they’re not deferring to one judge.  What other finder of fact has there been, other than Judge Greer in Central Florida?

FIEGER:  Excuse me.

SCARBOROUGH:  Every court has deferred to him. 

FIEGER:  No, they—they have not deferred to him.

SCARBOROUGH:  Yes, they have.

FIEGER:  They have reviewed this record over and over and over again.  This case has more judges, 19 judges, in five years of litigation than I’ve ever seen in any court. 

(CROSSTALK)

SCARBOROUGH:  How many trial court judges?  How many trial court judges? 

FIEGER:  In any death penalty case.  I have never—and this—there are innocent people, Joe, who have been executed in this country.  I have never seen the kind of reviews for any death penalty case that has occurred here.  And to liken this, frankly, to an execution is absurd. 

SCARBOROUGH:  Larry Klayman, let me bring you in here. 

(CROSSTALK)

SCARBOROUGH:  Again, from everything I’ve understood—I’ve read affidavits.  I’ve read medical records.  And what I find is, this lady is dying because she can’t feed herself. 

What can—why is it—and tell me if I’m wrong.  But from what I understand, you have Judge Greer—he’s a circuit court, state court judge.  He’s the sole finder of fact.  And, yes, 19 judges have looked to it.  All 18, other than Greer, have deferred to Greer’s judgment.  Should she die because one state court judge says she should die? 

LARRY KLAYMAN, RIGHTMARCH.COM:  Absolutely not.  And Fieger got the whole thing wrong. 

He cited this analogy. Should grandparents be able to step in if the parents make the wrong decision?  The answer is yes.  And that’s the issue here.  The issue is, is that Terri has never had someone representing her in this case who could make an informed decision.

FIEGER:  She’s had three guardian ad litems.  She’s had three guardian ad litems. 

KLAYMAN:  An estranged husband.

(CROSSTALK)

KLAYMAN:  Geoffrey, would you—would you like your estranged wife to make the decision on whether you should live or die?  I think not.

FIEGER:  Excuse me.  She’s had three guardian ad litems. 

KLAYMAN:  But, you know, the point here is, is that this is what you get when judges are reviewing other judges.

Congress made a mistake to have this special legislation.  And it was legitimate.  It was constitutional.  But to have the federal judge, Whittemore, up in Tampa look at another judge, this is a conspiracy among judges.

FIEGER:  He didn’t look at another judge. 

(CROSSTALK)

KLAYMAN:  They’re not going to look into it. 

FIEGER:  He made a decision based upon federal jurisdiction. 

KLAYMAN:  Let me tell you what needs to be done here and why I’m here.  I met with the general counsel of Governor Bush today.  And we laid out, Alan Keyes and I, my colleague—Alan wrote a brief.  I reviewed it.  It’s correct.  Alexander Hamilton, the founding fathers, found that, when there is a vacuum—and here, there’s a judicial vacuum.

In fact, the courts have not acted to kill Terri Schiavo.  They’re allowing others to do it.  This governor can step in.  He can use his executive powers and, as a last resort, he can save the life of Terri Schiavo. 

(CROSSTALK)

SCARBOROUGH:  Alan Dershowitz, let me ask you.  Can the governor of the state of Florida do that, first of all?  And secondly, if he doesn’t do it, do you think the Supreme Court is going to step in and reverse judges from the 11th Circuit and also the Middle District of Florida? 

DERSHOWITZ:  Well, they did it in Bush vs. Gore. 

All you need is four votes to grant certioraris, or four—or five votes to grant an injunction or a stay.  This is not a conspiracy of judges.  The legislature of Florida had a chance today.  They could have changed the law.  And you can apply civil law retroactively.  They could rule that, before a feeding tube can be removed, you have to have a written living will.  They chose not to do that.  That was a legislative action. 

Republicans and conservatives favor legislative actions.  They favor states’ rights.  I don’t myself agree with that conclusion on the merits.  But as a person who respects the law and the process, unfortunately, you do have to go along with this. 

Now, one point I disagree with some of my friends on this is, I think it’s a good thing that many courts have reviewed this.  I think, when a human life is at stake, you take all the time you need.  You go through every process gradually and you always err on the side of life, whether it’s a death penalty case or a case involving this kind of removal of a tube.  But I think the process eventually does have to run out.  And, remember, what we’re trying to do is reflect the wishes of this woman, not the husband.  He’s just a surrogate, not the parents, but her own wishes. 

(CROSSTALK)

SCARBOROUGH:  There’s no—there’s living will. 

DERSHOWITZ:  There’s no living with will here. 

If we recognize a right to die—and that’s a big fundamental issue, because many, many religious people don’t think there should be a right to die.  But if we recognize a right to die, then there has to be a process. 

KLAYMAN:  Well, there is no right to die, Alan.

DERSHOWITZ:  The state of Florida has recognized this process. 

(CROSSTALK)

SCARBOROUGH:  Hold on a second, gentlemen.  There’s a right to die, obviously, in Oregon.  I think it’s the only state out of all 50 states that has a right to die statute.

DERSHOWITZ:  No, no, no.  Florida has a right to die if you have a

living will under circumstances

(CROSSTALK)

SCARBOROUGH:  Well, yes, if you have a living will. 

FIEGER:  All states...

(CROSSTALK)

SCARBOROUGH:  Let me ask you this, though, Geoffrey Fieger.  I mean,

come on.  I mean, we—we don’t have a living will here.  All we have is -

·         and I see you smirking—I don’t know what’s so funny. 

But what we have is a husband, an estranged husband at best, that has hearsay evidence, saying that his wife once said she wanted to die. 

FIEGER:  No, what you have here is, you have a poor woman who has become the cause celebre of the Right to Life.

SCARBOROUGH:  What other evidence is there?

FIEGER:  A radical—a radical religious group that has taken over. 

(CROSSTALK)

SCARBOROUGH:  Am I a radical religious type?

FIEGER:  There are 1,000...

SCARBOROUGH:  Have you ever taken me for being a radical religious...

FIEGER:  No, except you...

SCARBOROUGH:  I have not been accused of being that. 

FIEGER:  Except, there are thousands of people in similar situations where this decision is being made every day and under similar circumstances. 

SCARBOROUGH:  To starve somebody to death?

FIEGER:  Wait a second.

Kevorkian—now, listen to this.  And you will—you—maybe you don’t understand this.  You keep saying starving somebody to death. 

SCARBOROUGH:  They’re starving her to death.

FIEGER:  Dr. Kevorkian—Dr. Kevorkian advocated, when this decision is made, somebody should get a painless injection.  The Right to Life came in and said, oh, no, we can’t do that.  The way we have to do it is remove the sustenance. 

So, removing a feeding tube was the acceptable way to Right to Life. 

And now, when they’ve got Terri Schiavo, now, suddenly, it’s Nazi-like.

(CROSSTALK)

FIEGER:  This was the mechanism of Right to Life.  They insisted on it. 

(CROSSTALK)

SCARBOROUGH:  Like Professor Dershowitz—like Professor Dershowitz said, though, when we don’t have a living will, when we have nothing in writing, when all we have is hearsay evidence, shouldn’t we really, Geoffrey, have a presumption for life?

FIEGER:  Oh, sure.  We have a presumption for life.

That’s why in Florida, for instance, if you’re over the age of 65 and a doctor kills you involuntary, you can’t sue, because Jeb Bush feels so much about the presumption of life that he protects people...

(CROSSTALK)

SCARBOROUGH:  I don’t want to talk about tort reform.  I just wanted you to answer my question. 

FIEGER:  Well, I did.  I did.  I did.  If you have a presumption of life...

SCARBOROUGH:  You talked about tort reform.  You didn’t answer my question.

FIEGER:  If you have a presumption of life, you don’t cut Medicare by 60 percent. 

SCARBOROUGH:  I said, should we have a presumption of life?  Shouldn’t we, yes or no? 

FIEGER:  In—in—in everything, if it was universally applied, of course.  And we would end capital punishment.  But that isn’t the way this country lives or works. 

SCARBOROUGH:  All right.  So, you say starve her to death. 

Let’s make a prediction.  Is the Supreme Court going to step in, Geoffrey? 

FIEGER:  No, no, absolutely not. 

SCARBOROUGH:  All right. 

Larry Klayman, is the Supreme Court going to step in? 

KLAYMAN:  No, they won’t, but the governor should step in.  And if he does, he’s a hero.  If not, he’s going to have to answer to the people. 

SCARBOROUGH:  Alan Dershowitz, prediction.  Is the Supreme Court going to step in? 

(CROSSTALK)

DERSHOWITZ:  I don’t think they will.  And if the governor does step in, he’ll probably be held in contempt.  The reason the governor had to ask judicial approval is, there is a judicial order in effect.  And the governor is not above the law and must comply with a judicial order. 

KLAYMAN:  Alan, let me point out why that’s not the case.  Suppose there was a lynching that was going to take place in front of the Capitol.

(CROSSTALK)   

KLAYMAN:  And a judge across the street—a judge across the street allowed it to proceed.  The governor has a duty under the Florida Constitution to protect life. 

(CROSSTALK)

FIEGER:  And what if an innocent man was going to be executed and the courts upheld it?  Can Governor Bush come out and drag him out of jail?  No. 

KLAYMAN:  And look at the judges in Nazi Germany who allowed Jews to be killed. 

FIEGER:  Oh, stop.

KLAYMAN:  Wasn’t there a duty to stop that, an executive duty, beyond the judicial power?

DERSHOWITZ:  I think we have to stop that analogy.  We just have to stop that analogy to the Holocaust.  It’s not a useful analogy.  And it’s very... 

(CROSSTALK)

SCARBOROUGH:  To be continued.

Geoffrey Fieger, thank you for being with us.  We usually agree, Geoffrey.  Certainly, we don’t agree tonight. 

Larry Klayman and Alan Dershowitz, as always, greatly appreciate you being here. 

Now, coming up next, radio talk show host Al Franken joins me with his thoughts on the Terri Schiavo case and what he’s been hearing from callers from across America. 

And, later on, my “Real Deal,” my confession on Terri’s tragic story. 

(COMMERCIAL BREAK)

SCARBOROUGH:  You know, right now, we are waiting for Terri Schiavo’s parents to take her case to the Supreme Court.  And when we get that information, we’ll pass it on to you. 

And, when we return, we’ve got tonight’s panel, including radio talk show host Al Franken. 

But, first, here’s the latest news your family needs to know. 

(NEWS BREAK)

(BEGIN VIDEO CLIP)

PATRICK MAHONEY, SCHINDLER FAMILY SPIRITUAL ADVISER:  It’s unfathomable that this is happening to their daughter, being starved and dehydrated to death.  She is dying.  It is not because she has terminal cancer.  She’s dying because of a court order. 

(END VIDEO CLIP)

SCARBOROUGH:  I’ll tell you what.  This is really—this is one of the most distressing stories I’ve covered. 

Let me bring in right now radio talk show host Al Franken.

Al, I wanted to get you on tonight.  And thanks for being with us tonight. 

You know, I’ve got a radio talk show I just started up.  And it’s interesting.  Monday, nobody wanted to talk about this.  We were talking about the Patriot Act.  We were talking about Iraq.  The calls started to pick up on Tuesday.  Today, I had three different guests on three different subjects.  We had to blow them all out because this is all America wanted to talk about.  I’m sure what I was hearing much different from what you were hearing.

What were your callers telling you today? 

AL FRANKEN, RADIO TALK SHOW HOST:  We don’t take that many calls. 

We do a show like I guess you were planning to do, which is, we have guests, sort of a show like you’re doing right now.  We did take some calls and we’ve been hearing from our guests certain things.  We’ve heard—and things that are reflected in the polls that we’ve been seeing by ABC and by Gallup, things—one of which is that a lot—everyone believes this is a terribly sad thing. 

And the tragedy happened.  A lot of people say the tragedy happened 15 years ago.  There has been an exploitation of this, that—this is what I believe and a lot of our listeners believe—by members of Congress and a lot of hypocrisy.  And I’ll give you one example.  Where were you, Joe, last week when the—a tube was pulled from a 6-month-old baby in Texas, against the wishes of his parents because of a law signed by George W. Bush which allows hospitals, if they’ve decided that the care is futile, to remove life support, or to remove in this case, it was a breathing tube, even if the parents...

SCARBOROUGH:  When you say if the care—if the health care is futile, what do you mean, if the baby can’t be saved? 

FRANKEN:  Yes.  In other words, the same situation essentially...

SCARBOROUGH:  But, in this case, her life can be saved.  If they feed her, she lives. 

FRANKEN:  No, it...

SCARBOROUGH:  If you take the feeding tube out, she dies. 

FRANKEN:  Yes, but you’re talking about—first of all, this was against the parents’ wishes.  And part of it was—and let me continue...

(CROSSTALK)

SCARBOROUGH:  First of all, I think that’s horrendous.  If that happened, I think that’s horrendous.

FRANKEN:  Well, guess who signed that law, Joe?  George W. Bush. 

SCARBOROUGH:  Well, I mean, I’m not married to him.  I mean, I don’t have to agree with everything that he does.

FRANKEN:  I’m talking about hypocrisy here.  I’m talking about hypocrisy here. 

SCARBOROUGH:  Right. 

FRANKEN:  He signed a law.  And the reason they could do that to these parents...

SCARBOROUGH:  Well, I’m talking about the tragedy of this case.

FRANKEN:  Hang on. 

SCARBOROUGH:  I’m not talking about George W. Bush.  I’m talking about the tragedy of this specific case. 

FRANKEN:  I was telling you...

(CROSSTALK)

SCARBOROUGH:  Let’s go to your home state, though.  Hubert Humphrey...

FRANKEN:  Yes. 

SCARBOROUGH:  You remember, Hubert Humphrey, he stood on the Senate floor and he said, we as a society should be judged by...

FRANKEN:  I know.

SCARBOROUGH:  You know how it ends. 

FRANKEN:  Those in shadows of life. 

SCARBOROUGH:  Exactly, those in the shadows of life, the weakest. 

FRANKEN:  OK.

SCARBOROUGH:  And how are we taking care of this lady?  Let’s not make this a Republican or a Democratic issue. 

(CROSSTALK)

FRANKEN:  I’ll tell you how we’re taking care of this lady. 

Most people in the polling that’s been done would not want to live like she’s living.  She brain-dead.  Now, here’s where a lot of misinformation has been passed, including by you, Joe.  The other night, you said this and you said it four times.  This is how you teased this.  “And a Nobel Prize-nominated neurologist who has treated Terri Schiavo, he says Terri should live and that her husband is perpetrating a hoax that is just aimed at killing his wife.”

This Dr. Hammesfahr is not a Nobel Prize nominee.  You said that four times.  He did not treat her.  You said that four times.  You have to do your research, Joe.  There is no such thing as a Nobel Prize nominee.  Now, he claims to be a Nobel Prize nominee because a letter was written to the Nobel Committee by Representative Mike Bilirakis.  Is that how you pronounce his...

SCARBOROUGH:  I know you want to get down in the weeds.  And if you want to come back on some other night...

FRANKEN:  This is not getting down in the weeds.

SCARBOROUGH:  ... and you want to debate me on Dr. Hammesfahr, who—it’s amazing.  He had a great reputation until he went after Schiavo’s husband. 

FRANKEN:  This is not getting down in the weeds, Joe. 

SCARBOROUGH:  And then, all of a sudden, he got attacked.  People that filed affidavits against Schiavo got attacked. 

FRANKEN:  You want to know—Joe. 

SCARBOROUGH:  So, I mean, that’s fine, Al.  If you want to talk about Dr. Hammesfahr.

FRANKEN:  No, Joe, you’re getting into the weeds now, because you’re accusing me of getting down into the weeds. 

SCARBOROUGH:  No.  I’m not accusing you of doing anything. 

FRANKEN:  Oh, yes, you are.  Now, let me tell you something, Joe.  I’m telling you...

SCARBOROUGH:  You’re trying to change the subject.  I’m asking you, why are we allowing this lady to starve to death? 

FRANKEN:  Because the court has decided that she is brain-dead and that this would be her wish.  And most Americans who are in this position would want to die. 

SCARBOROUGH:  You say that.  But you know what?  And this is the problem.  I’m trying to have a conversation with you.  You’re turning it into a political fight.

FRANKEN:  No.  I’m not.

SCARBOROUGH:  You keep bringing up this ABC poll, which you say Americans...

FRANKEN:  It was a Gallup poll.

SCARBOROUGH:  Well, let me tell you something.  First of all, the ABC poll—and, again, I really don’t want to get into all this.  But the ABC poll was bogus.  They said, as you know, she has been living on life support.  Should the life support...

FRANKEN:  Well, she has been. 

SCARBOROUGH:  No, she hasn’t.  It’s not life support.  She’s being fed.

FRANKEN:  Yes, it is. 

SCARBOROUGH:  That’s like saying feeding a baby or feeding somebody that has Alzheimer’s and can’t feed themselves is on life support.

(CROSSTALK)

FRANKEN:  A baby is not brain-dead.  Someone on—Alzheimer’s is not brain-dead. 

SCARBOROUGH:  This lady is not terminal.  Now, that’s amazing.  Let’s go ahead.

FRANKEN:  Would you let me speak? 

SCARBOROUGH:  She’s in the shadows of her life and we’re killing her.

FRANKEN:  Would you let me speak? 

SCARBOROUGH:  I think you’ve spoken a lot.  We have got two more guests.  We’ll bring them in.

FRANKEN:  No, would you let me—let me...

SCARBOROUGH:  And we’ll have you talk with them also. 

Let’s bring in Dorothy Timbs.  She’s from National Right to Life.

Al, I would love to give you the full hour.  I just can’t do it.  We have three guests.  And I’ve given you 80 percent...

FRANKEN:  But you interrupted me every time I tried to make a point. 

SCARBOROUGH:  You’ve interrupted me, too.  I mean, come on.  We’ve got

·         we’ve got a lot of people to talk to. 

And let’s also talk to a friend of yours, Catholic League’s president, Bill Donahue. 

Let’s go to you first, Bill.  What’s your response to what has been going on?  And you need to talk fast, because I have spent most of my time with Al. 

WILLIAM DONAHUE, PRESIDENT, CATHOLIC LEAGUE:  OK.

Well, since Al has been so good about correcting you on some things, let me correct Al.  Four times, he said the woman is brain-dead.  That is flatly wrong. 

She is brain-damaged, sir.  And if she were brain-dead, then she would be, in fact, dead, because that’s the definition of being dead in this country, is to be brain-dead. 

FRANKEN:  Well, she is brain-dead.

DONAHUE:  “The New York Times” made the same mistake in October of 2003, had to run a correction on it. 

If you take a look at today’s “San Francisco Chronicle,” you will see a medical doctor says that she’s not even comatose, because she’s—to be a persistent vegetative state is not the same thing as a coma.

FRANKEN:  Comatose has nothing to do with anything. 

DONAHUE:  So, let’s get it straight here. 

The woman is disabled.  She’s not dead.  And the question before us today is this.

FRANKEN:  Can I say something about comatose? 

DONAHUE:  Al, the question before us is this.  If you have a family which is voluntarily willing to provide for a person who is disabled, by what business or right is it, morally speaking, at least, for the state to say, you don’t have the right to do that? 

FRANKEN:  OK, this—I want to speak to this kind of misinformation. 

DONAHUE:  What’s misinformation?

FRANKEN:  I went to Walter Reed Hospital.  I went to Walter Reed Hospital to visit soldiers there, soldiers there who have been amputees.  They were put into a medically-induced coma after they were injured in Iraq. 

DONAHUE:  Were any of them brain-dead that you spoke to? 

FRANKEN:  You’re not—either you’re pretending not to be able to understand me or you’re not listening.

DONAHUE:  You said four times that the woman is brain-dead.  And I’m telling you that if she was brain-dead, then she would be dead.  She’s brain-damaged.  Get your facts straight, Al. 

FRANKEN:  Her cortex, her cerebral cortex is gone.  That’s brain-dead. 

DONAHUE:  No, she’s not brain-dead.  You are factually wrong. 

(CROSSTALK)

FRANKEN:  OK, let’s talk about comas.

SCARBOROUGH:  Let’s bring in Dorothy Timbs.

Dorothy, Dorothy, I want to ask you, what’s your—what’s your organization’s position on this?  And, just playing devil’s advocates, this husband says—and I take it you all are “pro-family—in quotation marks.  If you’re pro-family, if you’re pro-marriage, if you have a husband stepping forward saying, my wife said she wants to die, then you would want to support that marriage, right?  You would want to defend that marriage and defend a husband’s right to make a decision about his wife’s fate. 

DOROTHY TIMBS, NATIONAL RIGHT TO LIFE COMMITTEE:  Well, first, we don’t take any position on marriage.  We only defend innocent human life from conception to natural death. 

And this certainly is not a natural death.  Clearly, no matter what you say, no matter what the legal arguments come down to, the average American realizes that this is nothing less than starvation and dehydration of a woman who is otherwise healthy.  I mean, I don’t even know if I could have lasted as long as she’s lasted.  She’s very healthy to last...

FRANKEN:  Oh, my lord.

TIMBS:  ... going on day six without food and water.  So, a woman who’s not terminally ill—and I think that the other guest got it correct.  This is about the rights of people with disabilities. 

SCARBOROUGH:  OK, listen, I’m told we have to go.  You all stick around.  We’re going to go into the next segment.  We’ll be right back.

And, also, the fallout from Congress’ intervention in the Terri Schiavo case and possibly some very dangerous consequences from Congress stepping in.  We’re going to hear from both sides coming up next.

(COMMERCIAL BREAK)

(NEWS BREAK)

SCARBOROUGH:  Let’s talk about the political fallout and bring in Democratic Congressman Anthony Weiner and also Republican Congressman Patrick McHenry.  He’s a member of the House Government Reform Committee, which subpoenaed Terri Schiavo last week.

Let’s start with you, Congressman Weiner. 

What’s your take on the long-term impact of what the Congress did in this case?

REP. ANTHONY WEINER (D), NEW YORK:  Well, it’s a very dangerous precedent.  You know, some people have said this was a very unusual case.  In fact, it wasn’t.  There are thousands of them, tragically, all around the country at all times.

And if you’re someone that’s having a personal dispute within your family or even if you agree on how to treat a loved one, there’s nothing stopping the United States Congress from swooping in and saying, we’re going to take this decision away from you.  And I have to tell you, anyone who goes to Congress and defines themselves as a conservative and they think it’s the place of government to interceding in a family dispute like this really should have their conservative credentials taken away. 

(CROSSTALK)

SCARBOROUGH:  Patrick, I mean, let me ask you that.  The Republican Congress has gotten involved in this case involving a very personal matter.  That does not sound very conservative to me. 

REP. PATRICK MCHENRY ®, NORTH CAROLINA:  I think, in our essence as a people and as a civil government, we have to do one thing, and that’s protect the life of those that cannot protect themselves. 

SCARBOROUGH:  Don’t you need to be consistent, too? 

(CROSSTALK)

MCHENRY:  Well, it’s certainly consistent, Joe. 

I think it’s completely consistent.  We’re defending a woman who is being starved to death by a cruel husband, who has—who I think should—his legal rights should be taken away, because he obviously has a conflict with his common law wife and his two children he’s had by that common law wife.  And so, I think we have to step in as a Congress and say, we must defend those that simply cannot defend themselves.

We do that with children.  We certainly do that and give death row inmates, for example, we give them access to federal courts, so that they can—we can ensure that they have proper access to the courts in order to preserve life.  And that’s what is the key component here in this case.

SCARBOROUGH:  Anthony, let me ask you this, Anthony.  Aren’t liberals, aren’t some Democrats also being hypocrites, because they believe in activism, in federal activism?  And this is a case of the federal government getting involved where a life is on the line. 

WEINER:  No, in fact, I don’t have any problem with government taking an active role in someone’s—in health care for its people or, frankly, or the welfare children or adults or anyone.  That is not what this case is about.

This case is about a case where we pass laws.  The state legislature in Florida passed laws.  Those laws were being followed.  The courts were interpreting those laws.  And the Congress for some reason decided, well, we don’t like this process.  We’re going to pull this out and put it into a different court.  I would ask my colleague, well, where does it stop?  How come if I—let’s say I’m agreeing -- 100 percent agreeing with my family members about how to care for a loved one.

What’s to stop Congress from saying, well, we disagree, so we’re going to take it out and put it into another court?  This is a terrible precedent.  And, like I said, if you’re truly a conservative, you have got to say, what happened to individual response, individual rights?  What about the purview of the state courts?  These are all things my Republican brothers and sisters say they believe in, except in this case.  It’s hypocritical.

(CROSSTALK)

SCARBOROUGH:  Tell me something, Patrick.  Are you all—you all subpoenaed Terri.  You all subpoenaed her husband.  The judge ignored you.  Are you going to find him in contempt of Congress? 

MCHENRY:  Well, here’s an issue. 

I said this Friday night, that I think that that judge in Florida should be held in contempt of Congress. 

SCARBOROUGH:  Will it happen? 

MCHENRY:  He stepped in—he stepped in and thwarted the will of Congress. 

And, furthermore, we passed a law that specifically is worded for this case, yet those judges aren’t even talking about our original intent from Congress.  What we have here is an out-of-control judiciary. 

SCARBOROUGH:  Will it happen, though?  I want to know, is he going to be held in contempt of Congress, yes or no?

TIMBS:  Well, I’m going to talk to Chairman Tom Davis about this and make sure, on the Government Reform Committee, we bring this up when we come back into session.  I think it’s important and I think we need to rein in these judges. 

SCARBOROUGH:  All right, thank you so much, Congressman.  I greatly appreciate you.  All right, Congressman McHenry, Congressman Weiner, as always, thanks for being with us. 

Up next, my “Real Deal,” my confession on the Terri Schiavo case. 

That’s coming up next. 

(COMMERCIAL BREAK)

SCARBOROUGH:  You know, they say confession is good for the soul, so let’s hope so.  It’s time for tonight’s “Real Deal.” 

Now, as you know, I spent the last week on my TV and radio show fighting to save the life of Terri Schiavo, like a lot of people.  And like many opinion-givers, lawmakers and American citizens, I am saddened by the forced starvation of a young helpless woman, who is being sentenced to death simply because she can’t feed herself.  And that’s what it comes down to, friends. 

Now, applying this standard, infants, Alzheimer’s patients and the elderly, the infirm would face a court-ordered death.  If we are to judge our society, as Hubert Humphrey once suggested, as I said before, by how we protect the weakest among us, our country is in trouble. 

So where does my confession come in?  Well, here it goes.  Until last week, I didn’t want to talk about Terri Schiavo.  It was too depressing a spectacle, too ugly a fight.  I wanted to turn my eyes away from this beautiful young woman who turned into a helpless bedridden soul.  As beautiful to her mother and father as she was on her 16th birthday, the Terri Schiavo of 2005 was just too painful for some of us to watch.  And I suspect I wasn’t alone. 

I have noted over the past several days the growing outrage for a judicial system that would allow a mother’s daughter to starve to death in the most plentiful country on Earth.  This morning on my radio show, like I said, I had planned to talk about the Patriot Act and a lot of other issues.  But Portland called and they wanted to talk about Terri, Atlanta, Terri, Orlando, Terri, Washington, D.C., Terri, Iowa, of course.  All they wanted to talk about was Terri. 

Three days ago, few Americans seemed to care.  But that’s no longer the case.  We are all wide awake in America.  And we are no longer afraid to look into the eyes of Terri Schiavo.  And like her parents, we see a beautiful young woman made in the image of God, a God who will not bless this or any country that kills its weakest and most vulnerable citizens.  May God forgive us all. 

That’s all we have for tonight.  We’ll see you tomorrow. 

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

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