updated 3/25/2005 2:23:21 PM ET 2005-03-25T19:23:21

Guest: Thilakshani Dias, Christopher Hitchens, William Donahue, Kweisi Mfume, Christopher Shays, Barney Frank, Patrick McHenry

CHRIS MATTHEWS, HOST:  The Supreme Court rejects the request to reinsert Terri Schiavo‘s feeding tube.  The debate over the role of faith in government.  Which takes precedence, a nation under God or a nation of laws?  And are we at the end of this tragic personal story, or will the political battle continue? 

Let‘s play HARDBALL.  

Good evening.  I‘m Chris Matthews. 

Terri Schiavo‘s parents are running out of legal options in the fight to keep their daughter alive.  This morning, the United States Supreme Court turned down their request to reinsert the feeding tube that keeps the severely brain-damaged woman alive.  And a state court rejected Florida Governor Jeb Bush‘s request to allow the state to take custody of Schiavo. 

Terri Schiavo has gone more than six days now without water or food, and now her parents are awaiting a ruling from a federal judge in Tampa on whether to reattach her feeding tube. 

Let‘s get the latest on the legal wrangling in the case from NBC News justice correspondent Pete Williams—Pete.

PETE WILLIAMS, NBC JUSTICE CORRESPONDENT:  Well, Chris, the parents are taking another run through the federal courts, just like the one that ended with defeat for them in the U.S. Supreme Court.  They‘re trying to raise some new claims, but it is the same path they must follow.  They‘re trying to get an injunction.  They still have the same legal standards to meet. 

And the idea that they can succeed on a second trip through with sort of second—a second batch of arguments does seem like a long shot.  I think the judges are going to be inclined to think that this has been litigated once already.  Nonetheless, the parents‘ lawyers are trying again, and they are raising some new claims this time. 

MATTHEWS:  Is this the standard legal practice, this kind of again and again and again and again, try, try, try? 

WILLIAMS:  Well, I think it‘s a little bit to some extent, yes.  But what‘s different about this case, of course, is the possibility that if they don‘t succeed, if they can‘t pull a rabbit out of a hat somewhere, then Terri Schiavo will obviously die, because the food and water have been withheld for so long. 

So, that‘s what they‘re facing.  And, obviously, they feel very strongly that they simply have to try everything within their power.  And they do have the power to try this again. 

MATTHEWS:  Is the central legal fact here that Terri Schiavo‘s husband, Michael Schiavo, said that she wanted to not have her life end a different way than this, not to be prolonged in life through this means for all these years, and the backup by his brother and his sister?  Is this the central fact, that court accepts that as testimony? 

WILLIAMS:  Yes, that‘s right, that based on that and some other things that were introduced in the numerous state trials on this, that the judge said there‘s evidence that that‘s what she wanted.  Now, in this latest filing in federal court, Chris, the family is basically asking for a somewhat elevated standard. 

The Supreme Court, in 1990, said that a state can step in here and deny the withdrawal of life-saving measures if there is not clear and convincing evidence.  What the family says here, the parents now say is that a state has to maintain that life-saving capability, unless there is clear and convincing evidence.  They want a somewhat higher standards here than exists right now.  That‘s one of the things that they‘re trying out in federal court.  They‘re trying some other claims.

For example, they say saying that husband here, Michael Schiavo, violated the Americans with Disabilities Act by not giving Terri Schiavo rehabilitation services.  They‘re saying that the state judge, Greer, violated the Eighth Amendment‘s ban on cruel and unusual punishment by denying her food and water.  They‘re trying everything they can think of. 

MATTHEWS:  OK, thank you very much, NBC‘s Pete Williams. 

U.S. Congressman Patrick McHenry is a North Carolina Republican and a supporter of the House action to allow federal review of the Schiavo case, and U.S. Congressman Barney Frank is a Massachusetts Democrat who opposed it. 

Let me ask you, Mr. McHenry, what do you want to do now? 

REP. PATRICK MCHENRY ®, NORTH CAROLINA:  I think we need to make sure that all legal means are exhausted, then take a look at the case and see if we need to rein in these federal judges that have acted perhaps inappropriately, and did not look at Congress‘ intent when we passed this law to take a de novo look at this new case, a fresh start of looking at this case and look at the federal repercussions on this case, because, at its essence, our federal government is constituted to protect life and liberty.

MATTHEWS:  Right. 

MCHENRY:  And that is really what the essence of this case is about. 

MATTHEWS:  Congressman Frank, let me ask you about the legislative role here and the judicial role.  Congress writes a law that says the federal court system should look at this case.  Did they do it properly, as far as you see it? 

REP. BARNEY FRANK (D), MASSACHUSETTS:  Well, I disagree with the law. 

And I think we have to separate it out.  There are two questions here.  One, what should be the situation with regard to this terribly tragic case of Terri Schiavo?  Two, who decides it, the courts or the Congress?  When they voted the Constitution, they made a clear distinction in the Constitution.  Congress is supposed to set general policy.  We are not well suited to make individual judgments like that.  We take politics into account.  We take public opinion into account. 

We bring our ideology to it.  We‘re supposed to.  So, no, I—frankly, this is the dilemma they had when they passed that bill.  If in fact Congress was ordering the courts to do something, the courts would have said that‘s unconstitutional, correctly.

MATTHEWS:  Right.  Wouldn‘t that be a bill of attainder, something you‘re not supposed to have under the Constitution? 

FRANK:  We‘re not supposed to do it individually.

MATTHEWS:  Right. 

FRANK:  And I think I—I differ with my colleague when he says it‘s our job to rein in the courts. 

No, the Supreme Court of the United States does that.  The Supreme Court of the United States, including Justice Thomas and Justice Scalia and Chief Justice Rehnquist just said, no, this is not what we‘re going to do in this case and it is not—we can change the policy if we wanted to.  But we should not be individually intervening in a particular case.  And it is not our job to be the high court of appeals that overrules what courts do, state courts and federal courts now, in a particular case. 

MATTHEWS:  Is this—Congressman, isn‘t this favoritism for the Congress to intervene in a legal proceeding and say, we want a certain result here?  We don‘t like the way the courts are operating in this case.  We want a different result in this case.  Isn‘t that what you‘re saying? 

MCHENRY:  No.  What we‘re saying is, the federal courts should take a look at protecting life.  And as you all...

(CROSSTALK)

MATTHEWS:  They have, haven‘t they?  Haven‘t they done that? 

MCHENRY:  Well, no, the state courts don‘t often act in the best regard for protecting life.  The federal government is constituted for are that purpose.  It‘s written into the Constitution, protect life, liberty and the pursuit of happiness. 

And, as a Congress, as a people, we want to make sure that everyone has the option, the opportunity, to go to the federal courts and pursue a way to protect themselves and their rights. 

(CROSSTALK)

MATTHEWS:  Wait a minute.  I think the federal court‘s job is to ensure that the people aren‘t denied their constitutional rights. 

MCHENRY:  Absolutely.  And...

(CROSSTALK)

MATTHEWS:  You‘re saying that Congress‘ job—you‘re saying the Congress has a right to do that. 

(CROSSTALK)

MCHENRY:  ... protection.

MATTHEWS:  In other words—go ahead, Congressman Frank. 

FRANK:  Well, I‘m just struck by the sweeping condemnation of the state courts we‘ve just heard.  And I think this is what happens when people understandably emotional—and, you know, the parents are acting exactly as parents should.  And no one should be criticizing what they‘re trying to do. 

But the question is, what are the rules and what‘s the proper role for other people?  This condemnation we‘ve just heard that the state courts don‘t protect life is really quite unfair, I think, and inaccurate.  The state courts have the same responsibility as the federal courts.  The federal courts have had a kind of...

MCHENRY:  No, actually, the state courts are...

(CROSSTALK)

FRANK:  Excuse me, sir.  Please, Mr. McHenry, I did—Mr. McHenry, I did not interrupt you.  And it‘s probably—I understand this is an emotional thing.  If we don‘t interrupt each other, we‘ll do better. 

The state courts have their responsibility.  The federal courts in these areas have had a supervisory role.  The notion that the federal courts would be ordered by Congress to disregard everything the state courts did, all the evidence they took, etcetera, and simply issue an injunction, which is what people wanted to do, based on no chance to hear any evidence, is really quite an extraordinary denigration of the state courts. 

MATTHEWS:  Congressman McHenry, I‘m stunned.  I‘m stunned the fact that two-thirds of the people who identify themselves as evangelicals and conservatives in this country say they think Congress should have butted out of this thing.  I‘m amazed.  These are conservatives talking. 

MCHENRY:  Look, let‘s—let‘s look at the votes.  Let‘s look at the votes in Congress, though; 80 percent of my colleagues agree with my position, that we should step in and protect the life of Terri Schiavo. 

MATTHEWS:  Why does the public disagree with you? 

MCHENRY:  Eighty percent of my colleagues, including, including a diverse number of Democrats. 

(CROSSTALK)

MATTHEWS:  I know.  But why is the conservative base opposed to this? 

MCHENRY:  I don‘t know.  I can‘t speak to that. 

All I‘ve got to tell you is that, on this matter, it‘s a mater of conscience for our Congress.  And that‘s why we acted in this way.  We‘re wrestling with this issue, just like families wrestle with it.  It‘s an intensely emotional issue.  And I don‘t want to really engage in the legalese of it.  After all, certainly, Congressman Frank is a well-trained attorney, having been Harvard-educated.

So, I‘m not going to speak to those legalistic terms.  But in terms of overall policy, at its essence, our federal government needs to protect life.  And that‘s something that we need to look at as an overall policy and going forward, protecting life. 

(CROSSTALK)

FRANK:  This is what‘s so—this is what‘s so disturbing, legalese.  Legalese is very important to this country.  This denigration of being a country of laws, Chris, you said it in your opening.  Are we going to remain a country of laws?  That‘s a way of denigrating the notion that you do it by rules.  What does legalese means? 

It mean that you had a very thorough set of hearings in Florida where evidence was presented.  A guardian, a neutral guardian was appointed and made a report.  Doctors examined her.  What do you have in Congress instead?  People in—we have people calling us telling us what to do.  We are supposed to take public opinion into account.  We bring to it our own ideologies.  Judges are not supposed to do this.  So, this is—this is what‘s disturbing about this, and I understand the emotion. 

MATTHEWS:  Thank you very much, U.S. Congressman Barney Frank of Massachusetts and U.S. Congressman Patrick McHenry of Virginia. 

Let‘s get an update.

MCHENRY:  Great to be with you.

MATTHEWS:  Thank you, sir.

MATTHEWS:  Let‘s get an update from outside Terri Schiavo‘s Florida hospice right now from NBC‘s Mark Potter, who is standing by—Mark. 

MARK POTTER, NBC CORRESPONDENT:  Hi, Chris. 

Well, once again, people are standing by outside the hospice awaiting another ruling, yet another ruling from federal court.  At this hour, a hearing is under way in the Tampa courthouse before the same judge who, not long ago, refused to reattach Terri Schiavo‘s feeding tube.  That‘s Judge James Whittemore.  The same lawyers are before him once again, this time making new constitutional arguments on either side of this fight, David Gibbs representing the parents of Terri Schiavo, who are still fighting desperately to keep her alive, and George Felos, representing Michael Schiavo, the husband, who is arguing that his wife should be allowed to die with dignity. 

Because that hearing is still under way, we do not know when this judge plans to rule.  Last time and just a couple of days ago, he ruled at 6:30 the next morning.  So, again, it could be a long night for everybody, waiting to see what he has to say this time. 

On another front, Florida Governor Jeb Bush says today that he will not violate a court order that was issued yesterday that prohibits state officials from taking custody of Terri Schiavo, as they suggested they might want to do.  They said that yesterday.  But, again, the governor says he will not violate that order.  A lot of people here at the hospice are seeing the governor as their last hope and they‘re urging him to take action.  The governor says that he has restraints, although he‘s fully aware of the passionate emotions involved with these protests. 

Let‘s listen to what he had to say. 

(BEGIN VIDEO CLIP)

GOV. JEB BUSH ®, FLORIDA:  I understand what they‘re—they‘re acting on their heart, and I fully appreciate their sentiments and the emotions that go with this. 

But I cannot go—and as I‘ve been consistently saying, and I guess you guys haven‘t been listening and repeating it back.  I‘ve consistently said that I can‘t go beyond what my powers are, and I‘m not going to do it. 

(END VIDEO CLIP)

POTTER:  Now, late this afternoon, Terri Schiavo‘s parents visited her in the hospice behind me.  They say that she is deteriorating rapidly physically on this, her seventh day without food and water.  They‘re worried soon that she will suffer irreparable kidney damage—back to you. 

MATTHEWS:  Thank you very much, NBC‘s Mark Potter. 

Is the Schiavo case splitting the Republican Party?  When we return, Republican Congressman Chris Shays says his party is becoming—not that he likes it—the party of theocracy. 

And, tomorrow, former New York Mayor Rudy Giuliani is Don Imus‘ guest on “IMUS IN THE MORNING” here on MSNBC.

You‘re watching HARDBALL, only on MSNBC. 

(COMMERCIAL BREAK)

MATTHEWS:  Coming up, is the Schiavo case causing a rift on the right?  Republican Party Congressman Chris Shays says his party is becoming a party of theocracy.

HARDBALL returns after this.

(COMMERCIAL BREAK)

(NEWS BREAK)

MATTHEWS:  The Republican Party is in a bit of a split over this question about how to handle the Terri Schiavo case.  About five people in the Republican Congress—members of the Republican side of Congress voted against the measure on Sunday. 

But, more importantly, if you look at the numbers out there, two-thirds of conservatives and evangelicals are saying they don‘t like to see what the Republican Party is doing right now.  They want to butt out of this thing, see it as a local.  They see it as a family mater. 

Chris Shays‘ quote said—he‘s a congressman from—from Connecticut.  He says: “My party is demonstrating that they are states-rights parts 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 way.  The government is getting involved in their personal lives in a way that scares them.”

U.S. Congressman Chris Shays of Connecticut joins us now from Stanford, Connecticut. 

It used to be the Republican Party was a party of smaller government, especially at the federal level.  Why is it getting involved here? 

REP. CHRISTOPHER SHAYS ®, CONNECTICUT:  Well, frankly, I didn‘t know why it was getting involved, because my party does believe in smaller government. 

And here, we‘re taking a case and it‘s focused on just one person, which makes you wonder if there are similar cases, as there are, will we then pay attention to those and call a special session and so on?  The bottom line is, there is no good vote here.  It doesn‘t help anyone.  That‘s the irony of this.  And my party constantly talks about appealing to the base. 

Now, the base, if it‘s just a religious base, is a very small base.  Now, if they‘re saying they‘re going to appeal to the base because that‘s where the passion is and ignore the numbers of Republicans who aren‘t as passionate, it‘s going to be an interesting thing to see how that unfolds for us in the years to come. 

MATTHEWS:  Are you amazed that 74 percent of the people, as opposed to 13 percent, believe this is pure politics by the Republican Party? 

SHAYS:  No. 

I mean, when you have a memo that basically gives the impression that it‘s politics—I do know—and, Chris, I want to say this.  I think most members, the vast majority, this was a conscious vote—a conscience vote for them.  But there were some who voted to bring the federal court in who didn‘t want to, but they wished that our leadership hadn‘t put this vote before them. 

MATTHEWS:  This vote by Congress on Sunday was supposed to bring this matter up to the federal court level.

SHAYS:  Yes. 

MATTHEWS:  And it was supposed to create a new trial, a de novo trial, de novo, brand new, all new evidence, all new discovery, trial by jury, and then a decision by a federal court.  Are you surprised it hasn‘t led to that; it‘s simply led to more frustration by those pushing involvement by the federal government? 

SHAYS:  Well, I was very surprised by that. 

And it also—it—you know, just like we‘re for, you know, a small government and local decision-making, unless we don‘t like the decisions made on the local level, we‘re against activist courts.  And yet, we wanted now the federal court to become quite active in this issue.  So, it is a little bit perplexing. 

The bottom line is, we should have stayed out.  We should have respected the lower court‘s decision.  Excuse me.  We should have respected Florida‘s court decision that this was Terri‘s choice, and that‘s the bottom line.  I mean, I had my own family members, my wife and my daughter, who wrote me e-mails basically telling me what they want to have happen if they‘re in this kind of circumstance. 

MATTHEWS:  Wow.

SHAYS:  And they basically said, and I want you to tell Congress to stay out. 

MATTHEWS:  Well, I think that‘s happening in a lot of places, Congressman, right now. 

SHAYS:  Yes. 

MATTHEWS:  People are getting—are learning a lesson from this case. 

Thank you very much.   

SHAYS:  Thank you. 

MATTHEWS:  Have a nice Easter weekend, Congressman Chris Shays, Republican of Connecticut.

Still ahead, former NAACP president and U.S. Senate candidate Kweisi Mfume on the Schiavo case. 

You‘re watching HARDBALL on MSNBC. 

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to HARDBALL. 

When the Democratic Senator from Maryland Paul  Sarbanes said he wouldn‘t run again for the Senate, Kweisi Mfume was the first to formally announce his candidate—candidacy for the seat.  Mfume represented his Maryland district in Congress from 1987 to 1996, then ran the NAACP until last year. 

Mr. Mfume, what did you think of your party‘s behavior in this whole Schiavo case? 

KWEISI MFUME (D), MARYLAND SENATORIAL CANDIDATE:  Well, I thought the Democratic Party did pretty much what the American public was doing.

And it‘s a reminder to everybody that federalism has a right to life also.  I mean, at some point in time, after a person or family has exhausted all the available remedies, you‘ve got to let the process play out.  And I think what we see here is an opportunity and an event where the other party, the Republicans, have decided just to get in the middle of this.  I think it sets a very dangerous precedent. 

Why have all these rules in place and give states these powers to make decisions on this?  They exhaust that.  The Supreme Court says, we don‘t want to have anything to do with it, and you say, well, 12:30 in the morning, I‘m going to do something about it anyway.  I just that...

MATTHEWS:  Doesn‘t that clash, however, with the history of the Democratic Party and liberals generally, who have said bring in the federal government when you think something is going wrong at the local level, the whole civil rights legacy? 

MFUME:  Well, it does.

I think what you see here is a play on history and the fact that Republicans have done just the opposite and now seem to be assuming a new role in all this.

MATTHEWS:  They‘re now—they‘re now—they‘re big government in Washington types. 

MFUME:  It is. 

But, you know, maybe it‘s not a bad thing for Democrats sometimes not to be so predictable.  And, in an instance like this, I just think it‘s right.  When you have a process in place—and it‘s played out over and over again.  I mean, there‘s just been tons of appeals on this.  At some point in time, you‘ve got to take yourself out of it, not insert yourself into the middle of this. 

MATTHEWS:  You have two U.S. congressmen from Maryland who disagree with you on this, Elijah Cummings and Albert Wynn.  Both voted with the Republican majority this Sunday night.  How do you explain that?  They‘re colleagues of yours. 

MFUME:  Well, I don‘t—yes, I think they would have to explain it. 

But I couldn‘t explain it.

I just simply believe that, in this particular instance, when we do this, when we go down this slippery slope, we create a situation where, let‘s face it, everybody who has a situation like that will feel like they have a right to appeal to the Congress. 

MATTHEWS:  Where was Barbara Mikulski last Sunday?  Where was Paul Sarbanes last Sunday?  They allowed the Senate to sweep this through in a so-called voice vote with Rick Santorum of Pennsylvania reading the prayer.  He played chaplain.  There wasn‘t anybody in that chamber when they had a voice vote and Harkin went along with it. 

(CROSSTALK)

MFUME:  Rick read the prayer? 

MATTHEWS:  Yes.  He read the...

MFUME:  Oh, my goodness.

(LAUGHTER)

MATTHEWS:  He was the chaplain.  So it means they wanted it done.  The Democrats, where were they? 

MFUME:  I don‘t know.

MATTHEWS:  Where‘s your party?  They didn‘t show up for the vote. 

MFUME:  Well, I think there was an effort to try to keep people away and to not tell them when the vote was coming.  So, when the vote was called, there weren‘t that many people there.  But I don‘t know where they may have been.

MATTHEWS:  How would you have voted? 

MFUME:  I would have voted where—the same way that most people in the American public see this, that this is too much government intervention in a situation that sets a very dangerous precedent.  And I think the president, in this instance, was wrong and the Republican leadership in the Congress was wrong. 

MATTHEWS:  Are you ready for the United States Senate? 

MFUME:  I am. 

MATTHEWS:  Are you going to win? 

MFUME:  I hope to. 

MATTHEWS:  What‘s the hardest part, winning the nomination or winning the general?  

MFUME:  I think winning the nomination. 

(LAUGHTER)

MATTHEWS:  It‘s a Democratic state still, Maryland. 

MFUME:  Well, it‘s 2-1, but, you know, we‘ve got a lot of independents in the state and a lot of Democrats that sometimes will go both ways.  But I‘m convinced that the real election, first and foremost, is the primary. 

MATTHEWS:  What‘s the last thing the United States Senate has done in history worthwhile, talking about? 

MFUME:  Oh, Chris. 

MATTHEWS:  Name a bill that passed.  I‘m talking go back as far as you can.  Can you think of a significant decision the United States has...

MFUME:  You mean other than the appropriations bills.

MATTHEWS:  Anything besides spending and taxing, anything they‘ve done that really changed American life? 

MFUME:  Well...

MATTHEWS:  I will contend you‘ve got to go back to the Voting Rights Act, you‘ve got to go back to the Civil Rights Act of the 1960s.  And for 40 years, the Congress has basically done what the president wanted. 

MFUME:  And the Public Accommodations Act. 

(CROSSTALK)

MFUME:  I think it‘s basically been signing off on appropriations bills. 

MATTHEWS:  Yes.  Well, why do you want to be a senator?  That‘s all they do. 

MFUME:  Well, I want to change some of that.  I want to—not only that.  And I think you need strong voices in the Senate, people who are not worried about, can I get elected the next time, but what‘s right, and to be honest with people and straightforward and then let them vote you up or down based on your merits. 

MATTHEWS:  Haven‘t you noticed the Senate has been kind of lachrymose

·         or not lachrymose—laconic? 

MFUME:  Robotic?  You‘re trying to say robotic?

(CROSSTALK)

MATTHEWS:  I‘m trying to think of the right—I‘m trying to find the right Latinate word here to describe a body that‘s not the one we grew up with, with Hubert Humphrey and heavyweights like that in there and Everett Dirksen. 

MFUME:  It‘s not.  But I think it‘s because too many people are looking down the road at the next election.

MATTHEWS:  Yes. 

MFUME:  Instead of sometimes looking beyond that and saying, I feel this is right.  The American public, if they don‘t think it‘s right, will vote me out.  But I have to vote my conscience. 

MATTHEWS:  They spend the day over the Democratic club and the Republican clubs on the phone raising money. 

MFUME:  Well, unfortunately, that‘s the system that we have, where you‘ve got to raise tons and tons of money.  I don‘t knock the Senate.

MATTHEWS:  I hope you can change it.  Thank you, Mr. Mfume.

MFUME:  But thank you.

MATTHEWS:  Thanks for joining us. 

MFUME:  I‘m going to say the prayer the next time. 

(LAUGHTER)

MATTHEWS:  That will save money.

(LAUGHTER)

MATTHEWS:  Up next, did Congress blur the line between separation of church and state when it got involved in the Schiavo case?  The Catholic League‘s William Donahue and author Christopher Hitchens, an atheist, will be here to debate that one. 

You‘re watching HARDBALL on MSNBC. 

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to HARDBALL. 

With all options exhausted, it seems, to save Terri Schiavo‘s life, what can be done now? 

Christopher Hitchens is a regular columnist for “Vanity Fair” and Slate.com.  His latest book is titled “Love, Poverty and War: Journey and Essays.”  And Bill Donahue is president of the Catholic League For Religious and Civil Rights.

Bill, what do you think of Pat Buchanan‘s idea on this program, HARDBALL, last night, where he suggested that President Bush send in federal marshals and simply do it, save the life of Terri Schiavo? 

WILLIAM DONAHUE, PRESIDENT, CATHOLIC LEAGUE:  Well, I share Pat Buchanan‘s outrage, but I don‘t share his remedy.  We‘ve got enough moral anarchy in this country without bringing in the National Guard, who‘s supposed to be worried about hurricanes and cleanup and civil disorder. 

As soon as we do that, every liberal governor in the country, just to save some serial killer who is about to be fried, is going to bring in the National Guard as well.  That‘s not a prescription for order. 

MATTHEWS:  Let me go to Christopher Hitchens,

Christopher, what do you think should have been the federal role in this case? 

CHRISTOPHER HITCHENS, “VANITY FAIR”:  Well, if you‘re a federalist, of course, which people like Mr. Justice Scalia say they are, then you should not want to be invoking Congress and the Supreme Court to overrule state decisions. 

The thing is, there‘s no role for anyone in this case, because there isn‘t a life, unfortunately, to save.  Mrs. Schiavo is dead and has been for some time. 

DONAHUE:  No, she‘s not.

MATTHEWS:  What do you mean by that? 

HITCHENS:  And so, all of this is a very bad test and I think a very vulgar and opportunistic test of what ought to be a serious proposition.  Namely, should we have a consistent bias for life and a consistent life ethic? 

MATTHEWS:  Bill, you want to respond that? 

DONAHUE:  Yes.  Yes.  I mean, this—Christopher is just simply flatly wrong.  Get your facts straight, Christopher.  You can pick any position you want, but get your facts straight.

The woman is alive.  She‘s not even in a coma.  She‘s in a vegetative state.  She‘s been denied any type of rehabilitation and therapy because of her cheating husband, who came up with this idea that she told him, allegedly, she didn‘t want this help.  She‘s not brain-dead.  She‘s brain-damaged.  She‘s disabled.  She‘s entitled to the same type of care that anybody else in this country is.

And there are millions of people who are disabled and mentally retarded who need our help.  And we don‘t throw them out with refuge.  That‘s what they did in some countries.

HITCHENS:  I can hear you perfectly well, Mr. Donahue.

DONAHUE:  Yes. 

HITCHENS:  No need to shout. 

I don‘t know whether Mr. Schiavo was able to interpret his wife‘s wishes or not when she was alive.  But she‘s now dead.  We—you and I have had theological disputes before. 

DONAHUE:  It‘s not a theological—it‘s biological.

HITCHENS:  I‘m a materialist.  We don‘t have bodies.  We are bodies.  When the brain is gone, you are gone.  No physician who‘s attended her in any capacity has said that she‘s anything but totally brain-dead.  She‘s not disabled.  She‘s gone.

DONAHUE:  She is not brain-dead.  She is brain-damaged.  I went with this Al Franken last night.

HITCHENS:  No.

DONAHUE:  Both of you men are ignorant.  She is brain-damaged, not brain-dead. 

MATTHEWS:  Well, let me suggest what I‘ve read from the doctors.  And I‘ve tried to get the information I can, like I guess both of you guys have.  The information I‘ve gotten, Bill, is that she‘s awake, but not aware, that her eyes can flutter.  She can have reflectiveness, reflexiveness to whatever, which goes on all day, but she doesn‘t relate emotionally to people.  She doesn‘t have any consciousness.  She doesn‘t have any personality. 

The cerebral cortex of her brain, which is the we in us and the us in us and the her in her, is filled with fluid, like in a very late-stage Alzheimer‘s victim.  That‘s where she is at in terms of her health.  Do you believe that constitutes a person who should be sustained like that indefinitely or not?  I guess that‘s the question. 

DONAHUE:  No, no, no, no, no.  I didn‘t say that.  I said, first of all, she‘s not brain-dead, because if she were brain-dead, then she‘d be dead.  That‘s the legal definition.  The doctors have said, not me or Christopher, that she‘s brain-damaged. 

Now, my point is this, if she‘s going to be dead imminently, if she‘s an elderly person and she‘s been on—a vegetative state and nothing can help her and she‘s on some extraordinary means, like all these—incredible technology to keep people alive indefinitely, then that‘s a different story altogether. 

All I‘m saying is this.  No human being can live without food and water.  That‘s all that she has.  She‘s not asking for access to anything else.  And her family says, give the girl to us.  We‘ll provide for her.  Why is the state standing in the way of the family? 

MATTHEWS:  Let me try to get—let me go back to Christopher. 

Do you want to respond to that?  Because I‘ve read the literature on Alzheimer‘s victims.  And what happens near the end, if you reach the ultimate state of basically almost to the fetal position, the final stages of Alzheimer‘s, they do discuss having—not continuing the intravenous feeding and hydrating. 

This is what they do, Bill.  This is what goes on, Bill, in the real world. 

HITCHENS:  Wait, who are you asking now?

MATTHEWS:  Well, I want to ask Bill. 

Do you know that is what goes on now?

(CROSSTALK) 

HITCHENS:  Wait.  No.  You were asking me first.  I preferred that. 

MATTHEWS:  Well, you want to go first, Christopher.  Go ahead.

HITCHENS:  Right.  Yes, you asked me first.

Look, Alzheimer‘s is a disease that can arise in nature.  This unfortunate woman had, when she was a woman, a crisis that cut off the oxygen to her brain.  Her EKG is completely flat.  There‘s no physician who has testified otherwise.  There are lots of people who think that they can diagnose her by video.  I don‘t believe them.  I‘m not a physician myself. 

Her brain has shrunk to a point where it‘s no longer human.  As you say, the—full of fluid.  All people want to know at the point like this is how one can decently put an end to it.  I must say, I find it revolving, the idea of—even if she can‘t feel anything, something in me rebels against the idea of, as they say, starving her.  If I was a physician, I would just give her a morphine injection.  And that is what is often done. 

DONAHUE:  Oh, that‘s great.  Oh, we‘re making—you‘re progressive, too, boy.  Wow.  I hope I don‘t get sick on your watch. 

HITCHENS:  Well—and, by the way, I think it‘s not fair, unless you know him very well, to describe her husband as a cheating guy. 

(CROSSTALK)

DONAHUE:  No, he is a cheater. 

HITCHENS:  If he hasn‘t a right to life, he has a right to a life, surely.  And he‘s—there‘s no reason why he should be a martyr to someone who is no longer, in any real sense of the word, alive.  Meanwhile, her parents...

(CROSSTALK)

DONAHUE:  What I‘m saying is that he‘s been involved with another woman. 

HITCHENS:  Her parents, Mr. Donahue, who you ask to be given her care, are asking the courts to enforce Vatican rules on where her soul is going to go.  And they‘re saying that courts are condemning her to purgatory or hell.

DONAHUE:  I didn‘t say that. 

HITCHENS:  Now, I‘m sorry.

DONAHUE:  I didn‘t say that. 

HITCHENS:  We‘re not going to allow the courts in this country to be subject to the kind of ridiculous dogma that her lawyer is demanding be enforced.

MATTHEWS:  Well, what do we make of David Gibbs‘ assertion that the fact that she‘s dying in this way, Bill, would lead her to spend extra time in purgatory?  Where do we get a theology like that? 

(CROSSTALK)

HITCHENS:  Monstrous, medieval rubbish. 

(CROSSTALK)

HITCHENS:  The courts are not—the courts are not to be clogged with this kind of nonsense. 

DONAHUE:  Yes.  Yes. 

Look, I understand people reaching out.  But, quite frankly, I know the statement that was in the court document, that she is going to suffer damnation.  Obviously, the Catholic Church believes that you‘re not going to be damned unless you commit a mortal sin.  You can‘t commit a mortal sin unless you have a grave offense and you have absolute consent. 

Well, obviously, that simply, what that lawyer said was wrong.  She‘s not going to hell.  But that doesn‘t empty the moral considerations. 

(CROSSTALK)

HITCHENS:  Only the people who are asking for her life to be—her nonlife to be—are going to go to hell, presumably.

DONAHUE:  Her nonlife?  She‘s alive. 

HITCHENS:  We‘re all murderers in the eyes of people like this. 

(CROSSTALK)

HITCHENS:  This is nonsense.  It‘s fantastic.  And what‘s being missed is the chance to have an intelligent discussion about a proper life ethic. 

(CROSSTALK)

MATTHEWS:  I want to come back.  I want to go back, Bill, to some of this testimony.  And it‘s not just the lawyers that are saying things that I don‘t recognize to be the truth, or you, I don‘t think, either.  But let‘s get back.  There‘s some people saying some things on both sides, I guess, that are getting out of hand.  And I would argue, on the basis of what I‘ve read, the parents are getting some lousy representation here. 

Coming up, more with Christopher Hitchens and Bill Donahue. 

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

(COMMERCIAL BREAK)

MATTHEWS:  Coming up, does religion trump the rule of law for some on the conservative right?  Back with Christopher Hitchens and the Catholic League‘s William Donahue in the Schiavo case.

(COMMERCIAL BREAK)

(NEWS BREAK)

MATTHEWS:  We‘re back with Christopher Hitchens and Bill Donahue.

Let me ask you, Bill, this is a tough question.  But I‘m—I‘m very skeptical about what‘s taken as belief, what‘s taken as Catholic belief these days.  Do you believe the Catholic Church would maintain feeding and high hydration intravenously with the holy father if he were in this condition for 15 years? 

DONAHUE:  I think that, when it comes to food and water, they would, because the holy father has just made that clear last year, that because food and water are ordinary, you‘ve got to give that to a person, independent of their state. 

It‘s when you get into the area of respirators and hydraulic and all this other machinery that the Catholic Church says, no, that is extraordinary and that‘s denying the will of God.  So you don‘t need to go there on that.

MATTHEWS:  Bill, that of course was not what we were taught in the ‘50s.

(CROSSTALK)

MATTHEWS:  In the ‘50s, we were told the intravenous feeding was itself—was extraordinary.  That‘s changed, right? 

DONAHUE:  Well, yes, because there‘s many ways in which you can get nutrition.  The question is, since no individual can live without nutrition, without hydration, to deny it is to essentially to cause their death.  And that would be a form of murder. 

MATTHEWS:  Christopher, I read the—the deposition of a nurse who claimed—and this is how a lot of this has got into the air—that Mr.  Michael Schiavo would be so despondent over his wife‘s longevity, her continued life in this state, that he would come into the hospice and say things like, when is the bitch going to die?

What impeaches her witness, this nurse‘s witness, is she also claims that she was feeding Terri Schiavo milkshakes and puddings, all of which are absolutely impossible for her to consume in her current state, and that‘s why she‘s on these tubes.  Is everybody here lying?  What is going on in this case?

(CROSSTALK)

HITCHENS:  There‘s a lot of needless fanaticism here, hysteria. 

And I‘d just like to actually take up Bill Donahue‘s point about what‘s natural and what‘s mechanical, as he put it.  The church describes the only contraception that actually works as artificial, as if there was another kind.  This is a victimhood to dogma.  He‘s not my holy father, but I would say of the present pope that he‘s gone a great distance to make an effort at a consistent life ethic on one point particularly, that of capital punishment. 

I believe that‘s part of the accidental byproduct of what‘s been a very useful debate over the rights of the unborn.  The church has moved to try and make its position more consistent.  It heard the criticisms and it sort of answered them.  Now, here we have a case that proves nothing, where there‘s no one to save, there‘s no life to preserve, and where people are becoming aggressive, and, as you say, hysterical about it.

We could be learning a huge amount over this, about how to recognize when life is over, and also how to get people to prepare for it when they do have their faculties and when it isn‘t left to other parties, who may be interested or not, to speak for them. 

MATTHEWS:  Right. 

HITCHENS:  But if everything has to be done for her, including this, quite clearly, she has—I don‘t want to sound callous—but she has ceased to exist. 

(CROSSTALK)

MATTHEWS:  Do you accept the law here, Bill, of—under Florida law, Bill, I think many states, my guess, that you can leave a living will in written form or even oral form, where you make it clear to your relatives, for example, including your parents, that you do not wish to be kept going with these tubes in you and that sort of thing?  Do you accept the morality of that sort of decision, that life will, living will, it‘s called? 

DONAHUE:  Well, of course they do.  And the Catholic Church has no problem with that.  But, quite frankly, living wills aren‘t worth much these days.  What you really need is a health proxy.  But you know what the real issue here...

MATTHEWS:  Well, in other words, if the husband were telling the truth in this case and you accepted his testimony and those of his brother and his sister that Terri Schiavo did in fact evidence a clear-cut verdict on how she wanted to be treated in such a situation...

DONAHUE:  Yes. 

MATTHEWS:  ... would you go along with it? 

DONAHUE:  Absolutely.

MATTHEWS:  If you trusted the guy.  But you don‘t believe him, his brother or his sister? 

DONAHUE:  Well, my point is simply this.  You‘re getting close. 

Here‘s where I‘m at.

I‘m simply saying this.  Nobody can speak for somebody else.  The woman is alive.  She‘s not dead.  I‘m not going to accept anybody as a proxy unless we have evidence.  If in fact she had a proxy, a power of attorney, she gave it to her husband, even though it‘s an estranged situation, and she said, I don‘t want feeding tubes, then that‘s OK with me. 

But that‘s not what the Florida legislature assumed.  They‘re erring on the side of death.  But you know what‘s behind this issue?  It‘s not euthanasia.  It‘s abortion.  It is—the fault lines on this is that the whole feminist community and all of the abortion rights enthusiasts, every one of them are either against Terri or they‘re keeping their mouth shut, because they know, if you scratch a little bit on the question of when does live end, you‘ve got to get to the question of when does it begin. 

HITCHENS:  Well, that‘s a kind of half-truth, I think, and it could have been a useful one. 

I mean, look, the church says it has a special concern for the poor.  We know very well that, in Texas, where Governor Bush used to love signing nothing better than death warrants, indigent people have their tubes pulled all the time, even if their families don‘t want it and say they don‘t, and even if they‘re infants, who couldn‘t possibly have given permission. 

The reason why the focus is on this is precisely the opposite, actually, of what Mr. Donahue honorably implies, that it‘s to due with the right to life debate.  It‘s an occasion for the theocratic right to make—to make a noise and to get people jumping up and down.

(CROSSTALK)

MATTHEWS:  Where can we get on the record, Christopher?  Christopher, where can we find that written down by an authoritative source that, in Texas, poor people have their tubes pulled? 

HITCHENS:  Well, I can...

MATTHEWS:  Where would we find that out? 

HITCHENS:  I‘m in the Washington, D.C., telephone book. 

MATTHEWS:  No, no, how did you find it out? 

HITCHENS:  Oh, how did I find it out?  I found it out thanks partly to the excellent researchers of your show and my own knowledge of what‘s been going on in Texas. 

DONAHUE:  Yes, but that should outrage you, but—unless you think that they‘re dead.

HITCHENS:  It does.  It certainly does.

I think we need to have a much clearer idea of when people have given permission.

DONAHUE:  Yes. 

HITCHENS:  When their life is at an end, and whether or not we‘re ever going to have anything like a national health care service that does treat people with reverence, instead of as the meat. 

(CROSSTALK)

HITCHENS:  Of course, it‘s revolting to see people being treated like Ms. Schiavo being treated as if she was just an object.  But, unfortunately, that‘s what she‘s become. 

MATTHEWS:  OK. 

DONAHUE:  But she‘s alive. 

MATTHEWS:  Thank you, Bill Donahue of the Catholic League and Christopher Hitchens of “Vanity Fair” magazine.

When we return, we‘ll be joined by a Sri Lankan college student and tsunami aid worker who says Americans shouldn‘t donate cash because corrupt officials in her homeland are lining their pockets with tsunami relief money. 

This is HARDBALL, only on MSNBC. 

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to HARDBALL. 

The most powerful earthquake in more than 40 years struck beneath Indian Ocean‘s surface the day after this Christmas, creating a tsunami that killed over 200,000 people.  In Sri Lanka alone, over 30,000 people perished and another 100,000 families were left homeless. 

Our next guest, Tilli Dias, was in Sri Lanka that fateful day and is now trying to help a few of her fellow citizens rebuild their lives. 

Tilli, thanks for joining us.  You‘re a friend of our family.  You go to school with my son, Michael, up at Brown. 

I was struck by that front-page article in “The Providence Journal” the other day where you questioned the appropriateness of we Americans kicking in to the funds being pushed by former Presidents Bush and Clinton. 

What should we do? 

THILAKSHANI DIAS, TSUNAMI RELIEF FUND RAISER:  Well, I think that the relief effort always has been just extremely kind of congested towards right after the tsunami.  And I think that spreading it out a little bit is a little more effective, because there is a problem with redistribution.  The money always ends up in one place. 

And then, you know, getting it to the people that need it is often the challenge.  And the project that I have created was basically to deal with that problem exactly by linking donors with the recipients, so that you kind of get rid of that congestion right after—you know, right after the event. 

And so I think that the thing to do is to keep your eye out, look for projects that are focusing on long-term reconstruction and rebuilding, because this is a problem that, you know, yes, it falls off the face of the news after a month or so, but it is still very real to a lot of the people in the country.  So, yes, that‘s what I would say. 

MATTHEWS:  Well, you know, when I was with the Red Cross the night that NBC really pushed the tsunami relief effort on Saturday night in New York, I asked the head of the Red Cross, I said, what percentage of the money that Americans contribute actually reaches its way to victims?  Are you saying that that normally doesn‘t work, that a lot of the money gets diverted elsewhere from these organizations? 

DIAS:  Well, I mean, I have never worked for an NGO or anything like that, but I‘m pretty certain that the absorption—I mean, how cost-effective it is to actually send money from one place to another.  There‘s always an amount that is going to get absorbed in that transition. 

And that‘s inevitable.  But some organizations I think are making a special effort to basically reduce that cost and to make as much money go to the recipients as possible.  And this project, I mean, the aim is to do that. 

(CROSSTALK)

MATTHEWS:  OK.  Two seconds.  I only have time for two questions. 

First of all, name me who you think people should send their money to and it will reach victims. 

DIAS:  I‘m sorry.  I could not hear that. 

MATTHEWS:  Who should we send our money to that you know will reach the victims? 

DIAS:  Well, there is a project set up at Brown University that is dealing with that.  It is building houses for six to eight families in the southern coast—southern coastline. 

And, basically, what happens is, people can donate money to Brown and the goal of the project is to link the donors with the recipients and basically involve the donors in the process of the reconstruction and bring the two people closer together and just understand exactly what the money is going towards.  And it is also—the focus is on finding donors—finding recipients that would technically be missed by a lot of other people. 

So, for example, the first recipient is a landowner with a job.  And that‘s the type of person that would fall through the cracks in any situation, because if you‘re looking at thousands and thousands of people that have lost their homes and their food and their families and everything, when you see somebody with—who is a landowner and employed, your first instinct is to kind of discount the need of that person, when that isn‘t really the case.

So, I‘m trying to handpick.  That‘s a value that I can add.  I live in the country.  I have traveled the areas.  I can speak the language.  And I can pick out the people that will fall through the cracks and sort of make that—their experience better. 

MATTHEWS:  OK.  OK.  Great.  Thank you very much, Tilli Dias.

For more on Tilli‘s relief efforts, go to Brown.edu/sao/tsunami_relief.

Tomorrow on HARDBALL, we‘ll talk to a woman who went through a case similar to the Schiavo case, Michele Finn, who fought her brother-in-law for the right to allow her husband, Hugh, to die. 

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

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