Guest: Rick Warren, Ken Connor, Barry Lynn, Katrina Vanden Heuvel, Jim Moran, Jeff Miller, John Flannery, Jay Sekulow
CHRIS MATTHEWS, HOST: For the second time in less than a day, a federal appeals court in Atlanta has denied a request to reinsert Terri Schiavo‘s feeding tube. Will this emotionally and politically charged case go all the way to the Supreme Court?
Live from Washington, let‘s play HARDBALL.
Good evening. I‘m Chris Matthews.
Terri Schiavo‘s parents fight on, but time and their options are running out. This afternoon, the U.S. Circuit Court of Appeals in Atlanta refused to reconsider their request to reattach the feeding tube that keeps their severely brain-damaged daughter alive. And her parents plan to take the case all the way to the Supreme Court. Schiavo has now gone more than five days without food and water.
NBC‘s Mark Potter is outside her hospice in Florida.
But we begin tonight with NBC News justice correspondent Pete Williams.
Pete, how stands this case?
PETE WILLIAMS, NBC JUSTICE CORRESPONDENT: Well, we‘re waiting for it to come to the Supreme Court.
And, frankly, Chris, I think it is a little surprising that the lawyers for Terri Schiavo‘s parents haven‘t filed here yet, given how urgent the time is. It has been several hours since the federal appeals court in Atlanta declined to hear this case. The next step is for them to file here. We have every reason to think they‘re going to. The friend of court briefs are already sort of stacking up outside the Supreme Court waiting for the lawyers, for the parents to file.
So, any time now, we expect them to file. And then it will be up to the Supreme Court to decide whether to take—to issue this injunction or not. Now, you know, I think it is unlikely the Supreme Court will decide to grant this injunction. But you never know. They‘ve turned this case down four times before. But those were all involving the state courts. Now it is a federal case.
And the big question here, Chris, is, what about that law passed by congress? Does it require the lower courts to stop everything in its tracks, take their time, look at the case all the way from the beginning, as the Republicans say, or does it not change the fundamental law about issuing injunctions, as the appeals court so far have said, Chris?
MATTHEWS: Justice Scalia once said to me that he likes laws. He doesn‘t like the Supreme Court finding things in the Constitution that weren‘t intended to be there. But he likes laws. Would his prejudice toward an act of Congress lead the court to making an unusual decision here and make the injunction?
WILLIAMS: That is the big question. And what Congress has done has divided conservatives, as you so well know. Some of them, like Tom DeLay, Bill Frist, the leaders of Congress, say they have to act. It is a right-to-life issue.
But others, like Charles Fried, the former Reagan administration solicitor general, Doug Kmiec, who is a leading conservative scholar, they think that the Congress has done the wrong thing here. And they portray what Congress has done as just the sort of activist thing that Republicans criticize liberal judges for doing. So, I‘m not sure exactly how that plays. But the lower court said today, we have to follow the law. The law in injunctions is, you have to show the court that you‘re likely to win.
And they have been unable to persuade the courts so far that they can do that.
MATTHEWS: Will the court be in a conference call to respond to this petition, if it comes tonight?
WILLIAMS: They will all have to get together at the same time on a conference call. And there‘s a mechanism for doing this here.
The Supreme Court is constantly called upon to issue these emergency stays in death penalty cases, so there‘s a well-established mechanism for handling these. They do have to vote, of course, on whether to accept—whether to grant this injunction or not. But they don‘t all have to get on the conference call at the same time. They can exchange messages. They can do it by fax, some phoning.
But it doesn‘t take long. When they turned this case down in the state courts last week, it was done in four or five hours.
MATTHEWS: Thanks a lot, Pete Williams, NBC‘s justice correspondent.
NBC‘s Mark Potter is outside Terri Schiavo‘s hospice down in Florida.
Mark, what are the hopes of the people out there now?
MARK POTTER, NBC CORRESPONDENT: Well, they have one last hope. And he is Governor Jeb Bush.
But I can tell you right now, Chris, there are a lot of people standing outside the hospice who are rather shell-shocked by all the losses today suffered by the parents and their supporters in not only the courts, but the Florida legislature. After the parents suffered two losses in the 11th Circuit Court of Appeals, all eyes here turned to the Florida legislature. They had hoped that the Senate would come up with a bill that would protect Terri Schiavo, make it illegal to deny food and water to a disabled person without written consent.
But the Senate defeated that by 21-18. And then there was a ruling by a local judge here that denied a request by the Department of Children and Families to intervene to take custody of Terri. They claimed that she has been misdiagnosed, that she is not in a persistent vegetative state, that she is conscious, minimally conscious, and that they have the right to take custody of her and to investigate her circumstances.
But this afternoon, a circuit judge, George Greer, the one who has ruled against the family, ruled against them. The one thing that‘s tantalized people is a statement from the governor that he‘ll do all he can and a Florida official saying that they can take custody and they don‘t need court permission. So, there are a lot of people standing by tonight waiting to see what happens next—Chris.
MATTHEWS: Thank you very much, Mark Potter, who is outside the hospice, where Terri Schiavo is there.
Anyway, Jay Sekulow is with the American Center For Law and Justice. And John Flannery served as special counsel to House and Senate Judiciary Committees.
Jay, what would be your plea to the Supreme Court tonight? What do you think would work?
JAY SEKULOW, CHIEF COUNSEL, AMERICAN CENTER FOR LAW AND JUSTICE:
First of all, I‘d get it there. And that‘s No. 1. They better get this case up there quick.
MATTHEWS: Why are they messing around?
SEKULOW: I don‘t know, but it is taking too long. It needs to get up there, No. 1.
MATTHEWS: Because she‘s in desperate shape.
SEKULOW: Desperate shape, and the reports coming out of Florida, desperate. So, you‘re asking—here‘s what you‘re asking Justice Kennedy. And that is who gets this case first.
MATTHEWS: He‘s regional judge.
SEKULOW: He‘s the justice in charge of that circuit.
MATTHEWS: He‘s the one that brought the election of 2000 up to the Supremes, right?
SEKULOW: That‘s correct. And he has the authority to do that here. He can grant a stay himself. He can deny the stay himself or he could refer it to the entire court. Likely, he will refer it.
MATTHEWS: He is seen as a political centrist.
SEKULOW: He is. And he may look at this case and say—the hope for the Schindlers here—and this is—you know, it‘s a long shot, because you have always have got an uphill battle here. Their hope would be, this is different.
As Pete Williams said in his report, it‘s different than the other cases because it is a federal statute. Whether you like the statute or not, it is a federal statute and it is an act of Congress. So, does that give them another look?
But you bring up the whole question of timing here.
SEKULOW: And I want to reiterate that.
Look, they are running out of options in Florida, because you‘ve got a judge‘s order now saying you can‘t go in and get her. That‘s Children and Family Services.
MATTHEWS: That‘s a state decision, right, by a judge...
SEKULOW: You‘ve got to get this case to the Supreme Court.
MATTHEWS: In other words, that Jeb Bush, the governor, can‘t order one of his agencies to go collect her.
Let me go to the question here.
SEKULOW: He says he can, by the way, Chris. He says he has executive authority.
MATTHEWS: The Supreme Court could argue, Justice Kennedy could say—and he is a centrist—he is a moderate—could say, you know, I think that district court judge was given an impossible situation. He was told to judge whether there‘s going to be a successful court action at the federal level anyway, which is hard to judge, and he was told to decide in a matter of hours, really, whether to reinsert those tubes. He wasn‘t given sufficient time. I‘m going to order the reinstatement of those tubes and we‘ll see what happens.
MATTHEWS: He could do that, couldn‘t he?
JOHN FLANNERY, FORMER JUDICIARY COMMITTEE COUNSEL: Well, he could do that, but I don‘t think so in this case, because what the lawyers gave him on behalf of—the Schindlers‘ lawyers—gave the judge was not very much to work on. It was basically divided into two parts. One, the judge in the state court wasn‘t fair. And he said, well, he certainly was. He gave you every opportunity. And they had some of their facts wrong.
MATTHEWS: But this was supposed to be a de novo case. They weren‘t supposed to be judging a lower court action.
FLANNERY: But they raised the issue.
MATTHEWS: They made a mistake.
FLANNERY: Well, they made a mistake, two reasons. One is, they made a mistake of law and they made a mistake on the facts.
FLANNERY: They said that, for instance, there are no guardians appointed. And there had been three, other than the husband. And there were a whole number of things they just got wrong.
MATTHEWS: I‘m not getting into the values here, because I share the values of the people worried about her.
MATTHEWS: You know, I‘m Catholic.
SEKULOW: I think everybody in the country is sympathetic.
MATTHEWS: And everybody is sort of—everybody is worried about life and these issues are very important to argue about.
MATTHEWS: But this is what David Gibbs said, the lawyer for the family, the Schindlers, the parents. He said, if they put her—allow her to die because of natural causes, not getting food and drink, whatever, that‘s disobeying the Vatican.
And that could create additional damnation of her soul or add to the time of her suffering in purgatory. What is a secular...
MATTHEWS: What is a secular lawyer arguing before a secular...
MATTHEWS: First of all, the Catholic religion—I‘m informed here—
16 years, John...
MATTHEWS: Does not believe the papacy or the College of Cardinals or the curia or anybody can set how much time you spend in purgatory.
MATTHEWS: If they still argue there is a purgatory, which is a problematic question.
MATTHEWS: You go to Jesuits, you wouldn‘t find that anymore.
MATTHEWS: But the fact is, what is a secular at this...
MATTHEWS: What is a secular lawyer arguing before a secular court that this could mean more time in purgatory for this woman?
MATTHEWS: What religion is this?
SEKULOW: Let me just say, here‘s what I think he was trying to say.
MATTHEWS: What he‘s trying to say?
SEKULOW: He was trying to assert—yes, he was trying to assert a religious liberty claim, basically, in the middle of this.
Now, what I would have done differently, frankly, is...
MATTHEWS: No, that‘s not what he said.
SEKULOW: I know what he said.
SEKULOW: That‘s the only conceivable thing, Chris, he could have meant.
Now, here‘s what it should have been. Whether you think it is right or wrong—and I, of course, think the Schindlers are right and they should have this situation stopped.
MATTHEWS: Before I make a judgment, I would like to hear the facts on her.
SEKULOW: Correct. That‘s what...
SEKULOW: ... supposed to be doing.
MATTHEWS: In a deposition under oath, one of her nurses said she was feeding her milkshakes and all other kinds of stuff.
SEKULOW: That should have been given to the federal judge.
MATTHEWS: Yet, I am told—I am told that she would have aspiration if she swallowed, attempt to swallow any—even water, she would aspirate. That‘s why she‘s under feeding tubes. You hear arguments like he‘s...
MATTHEWS: Like that Bill Schindler—or Bill Schiavo—or Michael Schiavo, the husband, comes by and says, is the bitch still dead—or still alive?
MATTHEWS: I mean, these awful, awful depositions being taken here.
SEKULOW: When the court asked for—was supposed to do de novo review here.
SEKULOW: And the problem was, now, you go in and you argue this religious liberty claim, you‘re throwing court off balance, too. What someone should have come in and said is, here‘s new evidence. It is de novo review. The stay should be in place while you review it de novo.
Unfortunately, that‘s not the way this case ended up.
MATTHEWS: OK, let me ask you this. You‘re an attorney, right?
SEKULOW: Yes. Yes. Yes.
MATTHEWS: OK, you are an attorney before the Supreme Court tonight.
SEKULOW: Yes, sir.
MATTHEWS: It‘s your moment of greatness.
SEKULOW: Yes. I‘ve done 13 of them.
MATTHEWS: Show me.
MATTHEWS: What would be your greatness? What would you do to get this case?
SEKULOW: I would...
MATTHEWS: Taken up by the Supremes and sent back to district court, so this woman stays alive.
SEKULOW: I would say here‘s the—I would be—one issue to the court.
Congress said it‘s de novo review. You can‘t do de novo review of it, which means a complete review of the evidence, in an hour and a half trial. That‘s it, enough to...
MATTHEWS: So, we were jamming the district court judge. He needs another shot.
SEKULOW: Correct. Yes.
FLANNERY: But they never asked—they never asked the court to do that. They came in with five claims. Three of them were, the state wasn‘t fair to us. He considered those and rejected them.
MATTHEWS: He threw everything at the wall to see what stuck.
FLANNERY: And the other two were these religious claims.
FLANNERY: Pope Paul said that you can‘t—you can‘t refuse hydration and nutrition.
MATTHEWS: That would say to me they were desperate.
FLANNERY: And the judge threw it out. And he was right.
MATTHEWS: The fact that they would resort to an interpretation of a religious belief, and then, I would argue, distort it, because I don‘t know any religious belief that a woman suffers for the actions of another.
SEKULOW: The court should not be put in a situation, though, of having to play theologian. That‘s part of the problem here.
What needed to go on in that court proceeding, I think, is that you have got a quick proceeding. And the judge is obviously looking at this case. It is an emergency case however you look at it, because this woman is being starved to death one way or the other. You have got to say, look, here‘s what Congress said. Unless you find the statute unconstitutional on its face, which he did not.
MATTHEWS: Right. OK.
SEKULOW: OK? You‘ve got to look at the evidence afresh. But one of the difficulties, they didn‘t put the evidence—they didn‘t put the evidence up.
MATTHEWS: I‘ve got to ask you all, John first.
MATTHEWS: Every time the court, the Congress gets involved or the feds get involved, it is to try to straighten something out, so it doesn‘t happen again. We don‘t want the Supreme Court dealing in these cases.
MATTHEWS: There‘s hundreds of thousands of these a year, if not more.
MATTHEWS: What can they do to correct it? Do they think the federal judge or the state judge who recognized the guardianship of the husband was wrong? Who made a mistake here that would justify federal intervention?
FLANNERY: Congress led everybody to believe that they were going to save the Schindler family‘s view. And they took a position at the beginning. And because they were unfair, they have created all this trouble, which I think, ultimately, will end up with the Supreme Court doing what I think it should do, whether it does its...
MATTHEWS: Well, you mean even allowing that they were right, they may have done it wrong?
FLANNERY: Well, they certainly did it wrong, yes.
SEKULOW: The difficulty with this case is that, because you had a situation where Michael Schiavo also has another wife and two children, that‘s what made the convergence of facts here...
MATTHEWS: I wish I had an—I wish I had an hour or two with you guys.
MATTHEWS: Thank you very much, Jay Sekulow and John Flannery.
Still ahead, as the federal courts fail to order the reinsertion of Terri Schiavo‘s feeding tube, we‘ll get reaction from a couple members of the United States Congress who made the Schiavo case into a federal case.
You‘re watching HARDBALL on MSNBC.
MATTHEWS: Coming up, did Congress do the right thing by getting itself involved in the Schiavo case? We‘ll get both sides of that fight from two members of the House of Representatives when HARDBALL returns.
MATTHEWS: Welcome back to HARDBALL.
How did the Terri Schiavo case, a family conflict about the fate of a very sick woman, wind up on Capitol Hill?
U.S. Congressman Jim Moran of Virginia—he‘s a Democrat—says the Schiavos have become political pawns. Congressman Jeff Miller, a Republican of Florida, where this legal battle has raged for 15 years, practically, says Terri Schiavo‘s civil rights must be defended.
For the defense, Mr. Miller, you start. Congressman, why do you think this belonged in the U.S. Congress? Why is it going to the Supreme Court now?
REP. JEFF MILLER ®, FLORIDA: Well, I think the important thing to remember is, we‘re trying to protect somebody‘s 14th Amendment right to due process.
And it has gone through the process. Unfortunately, the 11th Circuit, I think, tried to interpret again the intent of Congress and got it wrong. The intent of Congress was to give a fresh set of eyes, to be able to look at all the facts in the case. And so now it is going to the Supreme Court.
MATTHEWS: How do you know—or tell us how you know or believe that Terri Schiavo‘s right to due process was denied by the Florida courts?
MILLER: Well, I think that the courts, while they may have been doing things according to the law, what they have not been looking at is a lot of the issues in regards to treatment, diagnosis, and the way that the external factors that have been going on outside have been involved. So, I think there‘s a lot of things that took place after the judge actually made his ruling, the judge back in the very beginning.
And there‘s a lot of things that have changed that forced it to the Supreme Court.
MATTHEWS: Let‘s go to Jim Moran.
Why do you think this shouldn‘t have come to the House?
REP. JIM MORAN (D), VIRGINIA: Of course it shouldn‘t have come from the House. We were way out of bounds on a legal, on a legislative, on a moral basis. We have no business reaching into the middle of a family tragedy and choosing sides.
And that‘s what we did, Chris.
MATTHEWS: Well, if you knew someone‘s life was going to be lost because of a failure to act properly at the local state level, don‘t you feel that we should try?
MORAN: How do I know what the circumstances of the situation are? Ten court cases reviewed this, 19 judges, many of them Republican conservatives. We have no reason to believe that they were prejudiced, that they did not act objectively.
But we act subjectively. I know that. I know that we didn‘t know the facts.
MORAN: We hadn‘t heard from both sides. We hadn‘t been able to weigh the evidence like the courts did. And we violated states‘ rights. I think that there‘s a real question of the separation of church and state. But that‘s been going to in a lot of issues. But I think it is immoral for us to be doing this kind of thing.
The other issue is, our law says that, when you get married, the spouse is responsible. And here we‘re choosing to let the parents be responsible.
MATTHEWS: Let me get Congressman Miller‘s response to that.
You know, Congressman Moran said that the House is not really familiar with the case to begin with. I heard a lot of members on Congress on Sunday night who hadn‘t even gone to the trouble to find out how to pronounce Terri Schiavo‘s name. They hadn‘t put the time in to this case required to simply know her name was Schiavo. They didn‘t even bother to learn.
MILLER: I don‘t think the pronunciation of her name was all that important, Chris.
MATTHEWS: No, it is.
MATTHEWS: Let me tell you why it is important, Congressman. Here‘s why it is important. If you don‘t do that much homework...
MILLER: I think what is important is that you are giving Jim Moran the opportunity to talk about immorality.
MILLER: And this is a gentleman that stands on the floor of the United States House and doesn‘t even say the words “under God” in the pledge of the United States.
So this is something that we do in fact have constitutional authority to have control over.
MORAN: He is confusing me with McDermott. Us white-haired Irish guys, they all look the same.
MORAN: That‘s not me. It‘s Jim McDermott that you‘re talking about.
MATTHEWS: Congressman, let me ask you, what did you just say about Congressman Moran? I want you to repeat it.
MILLER: No, he‘s right. I did.
MATTHEWS: What did you just accuse him of?
MILLER: And I apologize.
MATTHEWS: OK. Let me ask you about homework, because that‘s what I‘m talking about.
Should a person involve themselves, a U.S. congressman or woman, in a case in Florida if they‘re from somewhere like New Mexico, and spend at least a couple of hours studying the case before they go on the House floor? Is that a fair enough request?
MILLER: You know, I think the interesting thing is...
MATTHEWS: Is it fair enough?
MILLER: Sure. I think we all should take the opportunity.
MATTHEWS: Well, why don‘t they learn how to pronounce her name?
MILLER: Again, I don‘t think that‘s the important issue at this point, Chris.
MATTHEWS: Wouldn‘t you ask? Wouldn‘t you ask?
MATTHEWS: It‘s evidence of a lack of preparation.
MILLER: I know how to pronounce her name.
MATTHEWS: It‘s evidence—it‘s a lack—it‘s evidence of a lack of preparation.
MILLER: We‘re talking about somebody—we‘re talking about somebody trying to pronounce the name as it is spelled, but you‘ve got to look at the fact that we‘ve got somebody who is dying of thirst right now. And to be talking about how to pronounce their name is ludicrous.
MATTHEWS: No, it‘s nothing to do with—let me go ask.
Let‘s talk about her condition. According to evidence we‘ve gotten from everyone involved in this case, this woman has no functioning cerebral cortex, the her in her. The personality, the mind, whatever you want to call it, the personality, everything of—the awareness of life isn‘t in that person anymore. Do you accept that? Do you stipulate that? Or do you think that‘s not true?
MILLER: No. I think that you have got people that will say that and I think you have got people that will deny that. And that‘s the important reason that we should have a fresh...
MATTHEWS: Who are these people denying it?
MILLER: You‘ve heard the debate on the floor of the House, Chris.
MATTHEWS: OK, we have got to come back. We will come back to Congressman Miller.
You‘re first when we come back.
I want to know what evidence you have that the courts and the doctors are wrong about this case. We‘ll be back in a minute.
MATTHEWS: We‘re back with U.S. Congressman Jim Moran of Virginia and U.S. Congressman Jeff Miller of Florida.
Mr. Miller, I want to give you some time here. You‘re from Florida.
You know the situation. You know the politics of the judges down there. You know much more about this case than other people. What is wrong with the judicial system down there that kicked this up to the Supremes?
MILLER: I don‘t know if you would say there‘s anything wrong with the judicial system. It is just the way that a certain judge decided to interpret it.
MATTHEWS: No, no, I meant the state judges. I meant all the judges that have been handling this case for almost a decade now.
MORAN: Nineteen judges.
MATTHEWS: Why couldn‘t they handle this and get it—put it behind us?
MILLER: And you hear the number of 19 judges. There‘s been one judge that has been involved in the entire process. The 11th Circuit did not look at all of the evidence that was presented. You have one judge that is out there that has made this decision.
MATTHEWS: Well, what—you‘re talking about the federal judge at the district court in Tampa.
MILLER: No. I heard my colleague in the background talk about 19 judges actually reviewing this case.
MORAN: Nineteen did.
There was one judge that has seen all of the evidence. And that‘s what Congress is trying to get the federal courts to be able to do.
MILLER: Well, then what‘s wrong with relying upon his judgment?
Then, Jeff, what‘s wrong with relying upon his judgment?
MATTHEWS: What would you like to see happen, Congressman Miller? I want you to get this all the way through.
MATTHEWS: What would you like to see happen tonight? What would you like to see happen in the next 24 hours?
MILLER: I think an all writs act injunction needs to be put in place to put the feeding tube back in, so that the United States Supreme Court can all look at the evidence with a fresh set of eyes, not just from a judicial standpoint, but from an evidentiary standpoint. Congress doesn‘t have the evidence.
MILLER: The judges do.
MATTHEWS: OK, thank you very much, Congressman Jeff Miller of Florida, Congressman Jim Moran of Virginia.
Coming up, Pat Buchanan and Katrina Vanden Heuvel on the politics of the Schiavo case.
You‘re watching HARDBALL on MSNBC.
MATTHEWS: Welcome back to HARDBALL.
A brewing debate is emerging on the political fight over how to handle the Terri Schiavo case, the political fight. Some conservatives believe there isn‘t a federal role in the case. and one House Republican, Chris Shays, had this to say in “The New York Times” today: “My party is demonstrating that they are states-rights-ers unless they don‘t like what the states are doing. This Republican Party of Lincoln has become a party of theocracy. There are going to be repercussions from this vote. There are a number who feel that the government is getting involved in their personal lives in a way that scares them.”
Pat Buchanan, a man of the right himself, is an MSNBC political analyst. And Katrina Vanden Heuvel is editor of “The Nation” magazine, which speaks for itself.
Katrina Vanden Heuvel, was this a good move for the U.S. Congress on Sunday to get involved in this Schiavo case?
KATRINA VANDEN HEUVEL, EDITOR, “THE NATION”: I‘ve never seen such an he egregious act of political opportunism or shameless trafficking in human misery, a personal, gut-wrenching, human, personal family tragedy.
I think, Chris, when the smoke clears, we will see that these Republicans, DeLay, Frist, the party of theocracy, has overreached, has overplayed its hand. We already see a broad and strong opposition to federal government intervention in these matters of personal tragedy. And the pandering and the exploitation of a personal tragedy will fill the air more clearly even than now with the circus and the amorality of Tom DeLay.
MATTHEWS: We‘re short of time here. An ABC poll shows two-thirds of the American people think this is all politics.
PAT BUCHANAN, NBC POLITICAL ANALYST: Well, I think they‘re dead wrong with regard to the president of the United States.
What George Bush ought to do right now is send federal marshals in and pick up Terri Schiavo and put that breathing tube back into her—excuse me, the food and hydration tube back into her, as this is taken up to the United States Supreme Court. He took an oath, Chris, to defend the Constitution of the United States. He has got an obligation, as well as these judges do, to defend that Constitution. And that means to protect this woman‘s life.
MATTHEWS: What happened to the 10th Amendment?
BUCHANAN: Look, the 10th Amendment has been dead as a door nail, Chris.
MATTHEWS: Well, it‘s our Constitution.
BUCHANAN: The point is, the president of the United States—there‘s a woman dying, sentenced to death because she‘s brain-damaged. She‘s committed no crime. She‘s having food and water denied to her. That is a violation of human rights and the president of the United States has an opportunity, as does the governor of Florida, to step in as executives and act.
MATTHEWS: Should the president of the United States reviews every case in which a family is deciding when to stop feeding a beleaguered, dying family member and bring in federal marshals in such cases?
BUCHANAN: If a husband and a judge have conspired to kill a woman who is simply brain-damaged.
BUCHANAN: Exactly. They‘ve worked together on this thing.
MATTHEWS: Pat, I thought you were a strict constructionist. What happened to the 10th Amendment?
BUCHANAN: I‘m in favor of human life, if innocent life is being taken, Chris.
MATTHEWS: What does the 10th Amendment say?
BUCHANAN: The 10th Amendment said the rest of the rights belong to the states and the people.
VANDEN HEUVEL: But this case has been litigated for seven years. It has been heard by 19 judges in six courts.
VANDEN HEUVEL: It has gone to the Supreme Court three times.
BUCHANAN: It is irrelevant.
VANDEN HEUVEL: But, you know, Pat, what is happening is, you‘re seeing the implosion of your party.
BUCHANAN: I don‘t give a damn about the Republican Party. I care about a woman being put to death.
VANDEN HEUVEL: You are seeing the violation—but you‘re seeing the violation—these—these people can never be called conservatives again.
BUCHANAN: Well, let them call them what they want.
VANDEN HEUVEL: They have violated every conservative principle of limited government, of the sanctity of marriage, of states‘ rights.
BUCHANAN: We appreciate your defining conservatism for us.
VANDEN HEUVEL: No, but it is—but—you should be concerned about
· this is a personal tragedy. It has—but—but—but the other...
BUCHANAN: Oh, it is a personal tragedy all right.
VANDEN HEUVEL: But the other factor—two factors, Pat.
One is that George Bush, when he was governor, signed a right-to-die law. He—maybe you believe he violated his oath then.
VANDEN HEUVEL: And, secondly, if you believe in morality, Pat, what about those Congress people who sat idly by while 40 million go without health insurance in this country or they cut the Medicaid that has helped Terri Schiavo stay alive?
BUCHANAN: For heaven‘s sake, Katrina, a judge has sentenced a woman to death.
VANDEN HEUVEL: It‘s a tragedy. It‘s a personal...
BUCHANAN: She is dying tonight. She is dying tonight. It can be stopped.
VANDEN HEUVEL: It‘s a personal tragedy.
BUCHANAN: And the president ought to send...
MATTHEWS: I want Pat to back up what you suggested.
MATTHEWS: If the president of the United States sends federal marshals into that town down there in Florida.
BUCHANAN: Takes her.
MATTHEWS: Grabs her, put her—takes control of her body, I guess, takes control of her, under what authority?
BUCHANAN: He does it. He‘s a—look, a woman is...
MATTHEWS: Under what authority of the law?
BUCHANAN: I‘m president of the United States. I have got to upheld the Constitution. An American citizen is being put to death by a judge in a wrongful decision. I think it‘s wrong.
Jefferson threw out—he put every—let everybody out of prison. Jefferson said, I‘m not prosecuting anybody under the Alien and Sedition Act. Action, Chris, creates consensus. What do you think Congress would do? They would accept it. The president then should send a law to Congress saying, look, when you have a case where parents, husband and a woman who is simply brain-damaged, we do not put them to death in the United States.
MATTHEWS: And, in other words, the president can do what he wants to do.
VANDEN HEUVEL: There are millions of people sitting around their kitchens. There are millions of people sitting around their kitchens in this country today deciding how they want to end their lives, drawing up living wills, because they don‘t want Tom DeLay on their lawn. And they don‘t want a circus that this tragedy has become.
MATTHEWS: It—it just sounds to me like Richard Nixon says, go blow up the Brookings Institution. It‘s outrageous use of the office.
BUCHANAN: If he said, go save a life, you would have a different opinion...
MATTHEWS: OK. OK. Thank you very much, Pat Buchanan, Katrina Vanden Heuvel.
I think that was a strong ideological dispute.
When we come back, what‘s motivating conservative Republicans on Capitol Hill to get involved in the Schiavo life-and-death case? We‘ll go inside the politics of the Schiavo case. This is HARDBALL, only on MSNBC.
MATTHEWS: Coming up, inside the politics of the Schiavo case. Plus, one of this country‘s most prominent pastors, Rick Warren, will join us.
HARDBALL returns after this.
MATTHEWS: A lot of Americans believe that the life-and-death tug-of-war over Terri Schiavo is pure politics. House Majority Leader Tom DeLay recently spoke to the Family Research Council, a conservative Christian group, about the Schiavo case. And the speech was taped by the group Americans United For the Separation of Church and State.
Let‘s hear a bit of what Tom DeLay said at that meeting.
(BEGIN VIDEO CLIP)
REP. TOM DELAY (R-TX), MAJORITY LEADER: This is exactly the issue that is going on in America, that—attacks against the conservative movement, against me and against many others.
The point is, is, the other side has figured out how to win and to defeat the conservative movement. And that is to go after people personally, charge them with frivolous charges, and paint—link that up with all these do-gooder organizations funded by George Soros, and then get the national media on their side. That whole syndicate that they have going on right now is for one purpose and one purpose only. And that‘s to destroy the conservative movement.
(END VIDEO CLIP)
MATTHEWS: Attorney Ken Connor is the former president of the Family Research Council. And Barry Lynn is the executive director of Americans United For Separation of Church and State. It was Mr. Lynn who recorded DeLay‘s remarks at that meeting.
Why did you do the Peeping Tom number here with the tape recorder?
BARRY LYNN, EXEC. DIRECTOR, AMERICANS UNITED FOR SEPARATION OF CHURCH
AND STATE: Well, I actually wasn‘t there. We did obtain the tape. And I‘m...
MATTHEWS: What do you mean obtain it? Did you have one of your people in there as spies?
LYNN: Well, no. I‘m not in the business of revealing my sources for the tape.
LYNN: ... I think clearly authentic.
MATTHEWS: Why won‘t you tell us?
LYNN: Well, because I think the important thing is what‘s on the tape. Here‘s Tom DeLay...
MATTHEWS: OK. Can we assume that one of your people taped the meeting?
LYNN: Well, you can assume anything you want. But I‘m not going to verify. I‘m not going to talk about anything.
MATTHEWS: Well, that seems like a comfortable assumption, Ken.
Let me ask you about the meeting. Tom DeLay there sort of identified himself with the—it was almost like Dan Rather identifying himself with 9/11 and all those other horrendous things when he had to go. It seems odd that Tom DeLay would identify the attacks on his ethics by his own Congress, the Ethics Committee looking into it, the newspapers obviously looking into it, not just Republicans, and then to say that this Schiavo case is somehow related.
KEN CONNOR, FORMER PRESIDENT, FAMILY RESEARCH COUNCIL: Well, I suppose the answer would be any port in the storm. Mr. Delay is under considerable pressure. Accusations have been made. He ought to be presumed innocent until proven guilty.
CONNOR: The notion that there would be political motivations coming out of the Congress is certainly not surprising.
MATTHEWS: No, it isn‘t.
CONNOR: But I don‘t doubt that he‘s trying to whip up support and rally the troops...
MATTHEWS: It wasn‘t the left—it wasn‘t the left that brought the Terri Schiavo case to the attention of the American people. It was Jeb Bush. It was the organization—a Republican congressman in that city, Weldon. There was a lot of people that brought it. Fair enough. But I don‘t think anybody—you would not say that the liberals raised the Terri Schiavo case.
CONNOR: Well, in fact, I would say that, just earlier in that meeting, that I had some sharp words to say about the Republican leadership as well for their failure to pass the bill on Thursday night when the Senate asked them to stay in session.
CONNOR: I‘m just disappointed that Larry (sic) did not have his agent tape my speech.
LYNN: You know, listen, the important thing is what‘s on the tape.
And what is on the tape is this. Tom DeLay is basically saying to the religious right, listen, I am going to carry your water on every important social issue that you care about. But I want, in return, you to protect my back when I‘m facing these ethics charges. And I don‘t think there‘s any doubt if you listen to the whole tape that was the message that Tom DeLay was delivering.
MATTHEWS: He said he was being targeted because of his political and cultural beliefs, not because of his misbehavior, if there is any, right?
LYNN: Yes. Well, if there is any, then it ought to be explored. He should not be trying to find a Family Research Council or any other religious group to try to give him the cloak of Christian cover for any wrongdoing.
MATTHEWS: Let me ask you, gentlemen.
MATTHEWS: Let me get back to the bigger picture.
Most people—very few people care much about Tom DeLay. I have got to break it to you. Maybe 20 percent of the country has ever heard the guy. And let him fight out his own ethics matters. And they may—he may be using the politics. What I find interesting here is the American people on this thing. You know, two-thirds of them say they think it is politics.
CONNOR: Well, look...
MATTHEWS: They think the Republicans are using it for political reasons. And if you look at the speaking on the floor, no Democrat spoke for the president‘s position and no Republicans, I think with maybe one exception, Chris Shays, voted for the Democrats‘ position.
So, even though there was a split vote in the Democratic side and a handful of Republicans voting against the president, the fact of the matter is, this is a partisan issue, in terms of what you saw on C-SPAN and watched here on our program Sunday night watching this thing.
CONNOR: Well, Chris, as a practical matter, good policy makes good politics.
MATTHEWS: But why is it a partisan issue?
CONNOR: Well, I don‘t know that it is a partisan...
MATTHEWS: It is.
CONNOR: Well, you got unanimous consent in the Senate.
MATTHEWS: The Republican Party...
MATTHEWS: No, because nobody really opposed.
CONNOR: Unanimous consent in the Senate.
MATTHEWS: No, because no Democrats opposed it.
CONNOR: When have you had the Senate, the most fractious—at the most fractious period perhaps in American history, wind up with unanimous consent?
MATTHEWS: Sir, let‘s stipulate some common sense here. The Senate met on Sunday night, Sunday. They had Rick Santorum read the prayer, the senator from Pennsylvania, because there wasn‘t any chaplain present. There was only three or four people there, and they had a voice vote.
CONNOR: If somebody in the Senate had been intent on derailing it, it would have been an easy thing to do.
MATTHEWS: Will you allow the fact that this was an Republican initiative?
CONNOR: I certainly believe it was an initiative where Republicans and Democrats, liberals and conservatives, could get behind the notion that an innocent person like Terri Schiavo...
MATTHEWS: Why are you saying this?
LYNN: That‘s ridiculous.
MATTHEWS: Which liberals got behind this? Which liberals got behind this?
CONNOR: How about Tom DeLay? Excuse me.
LYNN: He‘s not a liberal.
CONNOR: How about Tom Harkin?
MATTHEWS: You won‘t even stipulate to the commonsense fact here that this was driven by Tom—by Hastert, the speaker of the House, by Tom DeLay, by Bill—Dr. Frist. Those were the ones that pushed this measure through the Congress.
CONNOR: Almost half the votes in the House were by Democrats. And Tom Harkin...
MATTHEWS: And none of them—and, sir, none of them spoke out for the bill.
CONNOR: Well, they didn‘t speak against the bill either.
MATTHEWS: It‘s called CYA.
CONNOR: And that‘s because they understood that...
MATTHEWS: What I like about this show, sir, is when somebody comes on and doesn‘t even speak the truth, because then I can show them for what they are. You don‘t allow that this is a Republican initiative, backed by the president, who flew back from Texas to push this thing?
CONNOR: I do allow for the fact that the Republicans showed leadership on the issue.
MATTHEWS: This is a Republican issue which Democrats were afraid to fight.
CONNOR: And the Democrats were afraid to fight...
CONNOR: ... because they knew, as a matter of policy and a matter of politics, that they would suffer for it.
MATTHEWS: Admit the fact that there was a partisan advantage for the Republicans. The Democrats saw it was a loser and shut up.
CONNOR: But now, now that says that good policy is good politics.
MATTHEWS: But it also says that this issue was a partisan Republican issue.
CONNOR: Well, certainly Republicans took the lead. There‘s no question about that.
MATTHEWS: Thank you.
LYNN: This is completely insane, because, you know, there‘s not one in 100 people who believes that any group of members of Congress ought to be deciding the most intimate family matters in their life or the life of anybody else.
So, there may have been a big political miscalculation here, because the American people, even by a narrow margin, evangelical Christians do not believe that this was anything but politics. And they know exactly kind of politics it is.
MATTHEWS: I recall the federal government got involved with the Elian Gonzalez case.
MATTHEWS: And I don‘t think that hurt that the Republicans among the Cuban Americans, did it?
MATTHEWS: The people who cared most.
LYNN: I‘ll tell you, but...
MATTHEWS: Sometimes getting involved with one single case does in fact help a political party.
LYNN: Yes, but the difference with Elian Gonzalez is, most people never expected themselves to find themselves in that situation.
Almost every American assumes that, at some point, they‘re to have deal with these life-or-death questions.
MATTHEWS: Why do you think 100 Democratic House members stayed home, never came in to vote on Sunday night?
LYNN: Because I don‘t think they wanted to participate in a charade of long-distance doctrine being done by people who have no background in the issue.
MATTHEWS: Why did you think 100 Democrats stayed out of this thing?
CONNOR: I think because they didn‘t want to take the political hit by virtue of the position they took.
I think common sense and good judgment says that a person who is utterly innocent of any wrongdoing ought to be able to get the same kind due process protections as Ted Bundy and people on death row.
MATTHEWS: You know what? This is terra incognita, though, for all of us. We‘re all trying to figure out how the courts are going to rule on this. How they have ruled so far, everything we‘ve seen is, they don‘t want to touch it at the federal level. And they didn‘t want to touch it years ago, Ken, when it came up, this same case.
LYNN: And they shouldn‘t touch it at the federal level.
MATTHEWS: This isn‘t new to the federal level, you know. The courts have looked at this before.
LYNN: They shouldn‘t touch it at the federal level.
MATTHEWS: And they didn‘t want to get involved.
CONNOR: I think this—I think this case is going to be exhibit A, as the Republicans move forward on trying to rein in an active judiciary. They have absolutely...
MATTHEWS: You‘re trying to activate the judiciary.
LYNN: What‘s he‘s trying to do...
CONNOR: They have sought to thwart the intent of Congress by refusing to exercise the jurisdiction...
MATTHEWS: Aren‘t you surprised the courts wouldn‘t do what the Congress wanted them to do?
LYNN: No, not at all.
But what he‘s trying to do is say, he doesn‘t like activist judges at the state level if they don‘t agree with him. He doesn‘t like them at the federal level if they don‘t agree with him. There‘s total hypocrisy here.
CONNOR: On the contrary. As the dissent on the 11th Circuit pointed out...
LYNN: Ken, you do not federalize the law of families and who is able to make a decision in a life-or-death circumstance. You don‘t change it by act of Congress.
LYNN: And the debate lasted about an hour and a half.
MATTHEWS: I think this is not going to be resolved here tonight. But I think we do agree, it is a partisan issue.
Thank you, Ken Connor and Barry Lynn.
When we return, Rick Warren on the Schiavo case and how his book “The Purpose Driven Life” helped end that deadly string of attacks down in Atlanta.
This is HARDBALL, only on MSNBC.
MATTHEWS: When Ashley Smith was held hostage by the man accused in the Atlanta courtroom shootings, she read a passage from the self-help book “The Purpose Driven Life” by pastor Rick Warren to convince him, the man who was holding her, to surrender. Incredibly, it worked.
Pastor Warren is here with us for our weeklong special reports on faith in America.
Do you have any thoughts about the Schiavo case that we could benefit from, Rick?
RICK WARREN, AUTHOR, “THE PURPOSE DRIVEN LIFE”: You know, Chris, I think there‘s a connection between a lot of these things we‘re seeing in the news right now.
And that is, one of the fundamental needs people have is this need for a reason for hope.
WARREN: And when people lack hope, they act in hopeless ways. And one of those ways sometimes is to become an advocate of death. And that doesn‘t make any difference whether it is a boy in Minnesota or a man in Atlanta or even a husband in Florida.
In each of those cases, people were acting in a hopeless way. Terri Schiavo‘s husband has no hope that she‘ll ever recover. And so he is acting in a hopeless way.
MATTHEWS: Well, what happens if he has the medical information that her cerebral cortex, the her in her, the personality in her, in us, the cerebral cortex, is basically an inkwell, it‘s basically just a bottle of ink now, that the only thing left of her is not her personality or her conscious humanity, but basically part of her organic existence which allows her to keep breathing and seeming to smile?
MATTHEWS: What do you do in that situation, after four or five years of sitting in a room with a person, in this case, 15 years of being in a room where he knows, when he goes in that room, there is not going to be another person in there? What do you do for hope?
WARREN: Well, my first question is, I wonder why he is in a hurry to pull the feeding tube on her. In the first place...
MATTHEWS: Fifteen years is a hurry?
WARREN: Well, he has already began his own life. He is living with another girl.
WARREN: He has got two kids.
MATTHEWS: But why—well, how long should he keep the—how long should he keep the tubes into her? Fifteen years and counting. How far should he go with hope?
Well, my question is, Chris, when there are probably millions of Americans who are willing to feed Terri, and including her parents, why he insists on pulling the plug. This is a woman who is not—this is not a right-to-die issue, in my opinion, because she is not dying. She wasn‘t dying until somebody decided to starve her to death. She‘s not brain-dead. She is in a vegetative state.
And, as most doctors will tell you, that that can go 15, 20, 30 years. It is very rare that anybody comes out of that. But it does happen. And I always want to err on the side of hope. And if were in a vegetative state, I would hope that those who loved me would keep feeding me in case I did come out of it. My daughter last night said, you know, dad, if we‘re just going to let people die who can‘t feed themselves—and that‘s really all the problem with Terri. She can‘t feed herself. Well, then we are going to let all the children die, all the babies die, because they can‘t feed themselves.
MATTHEWS: How should we—how should—we have to come up with a general rule here, Rick.
MATTHEWS: And the president can‘t get involved in every case, and nor can Congress or the Supreme Court.
WARREN: Right. Right.
MATTHEWS: Don‘t we need some sort of rule here? And if it is not the house, the spouse, who decides these things...
MATTHEWS: ... who does decide? You say the husband has moved on, but he is still the guardian. Is this a case where we have the wrong guardian? What is it? Let‘s try to fix the system.
WARREN: Well—well, I‘ll just tell you, frankly, I doubt his veracity in the things that he said. I would question why he is in such a hurry.
MATTHEWS: So, the judges are wrong. So here—I‘m just trying to fix this. What do we learn about humanity? The judges were wrong to trust him? What went wrong here, as you see it?
WARREN: Well, I—again, I‘m not a politician. I heard the previous debate. And it is unfortunate this thing has become a political and partisan football, because I think the person is being left out of it, and that this is a real person who does smile, does laugh.
Barbara Weller wrote recently just—she said—sent this to me. It said: “Just before I left the room, I leaned over to Terri and spoke in her right ear. I told her I was sorry I hadn‘t been able to keep the feeding tube from being taken out and I was sorry I had to leave her alone. But I reminded her that Jesus would stay right by her side when no one else was there with her. And when I mentioned Jesus‘ name, Terri laughed out loud. She became very agitated and became—loudly trying to speak to me again.
“As Terri continued to laugh and to try to speak, I quietly prayed in her ear, kissed her and placed her into Jesus‘ care and left the room. Terri is now alone. As I write this last narrative to you, it is 5:00 a.m. in the morning of March 19. Terri has been without food and water for nearly 17 hours. And I‘m sure she is beginning at least to become thirsty, if not hungry. And I am left to wonder how many other people care?”
My advice would be, if somebody cares, let them care for her.
WARREN: Why insist that she not be cared for? There are people—the government doesn‘t need to care for her. There are millions of people in this country who will care for Terri Schiavo.
MATTHEWS: Why do you think the husband—why do you think the husband would not allow that? Why do you think he is keeping that decision to himself? He is not getting any money.
MATTHEWS: There‘s no insurance money. The malpractice money is gone now. That‘s behind us. There‘s nothing ahead of him in terms of money. I mean, he is certainly not going to write a book about this. That wouldn‘t sell.
MATTHEWS: I don‘t know if anybody‘s book will sell in this case, because it takes six months for a book to come out. And people won‘t be following the case anymore.
WARREN: Right. Right.
MATTHEWS: So why is he doing this, do you think?
WARREN: I have no idea. Well, I don‘t know.
There‘s 1,000 reasons could you speculate. What if she came back out of the—out of this state and had something to say that he didn‘t want said?
MATTHEWS: Yes, but, you know, I—I got to go back to the medical information is that their...
MATTHEWS: Her cerebral cortex is—you‘ve seen these CAT scans on TV. There‘s nothing there. It‘s almost like she is just gone.
WARREN: Yes. Did you hear about the Mayo Clinic doctor who again saw her today and felt that she had been misdiagnosed.
MATTHEWS: He didn‘t see her. Was it the Mayo Clinic or was it the doctor from Jeb Bush‘s doctor who saw her records?
MATTHEWS: I agree with you. Look, there‘s a dispute here. It is a dispute.
Rick Warren, congratulations.
WARREN: Thank you.
MATTHEWS: You‘ve got quite a following out in the country. “The Purpose Driven Life,” what a book.
WARREN: Thanks a lot.
MATTHEWS: Thank you for coming on HARDBALL.
WARREN: See you.
MATTHEWS: Join us again tomorrow night at 7:00 Eastern for more HARDBALL. Our guests include former NAACP President Kweisi Mfume, who is running for the Senate in Maryland.
Right now, it‘s time for the “COUNTDOWN” with Keith.
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