updated 3/31/2005 9:07:43 AM ET 2005-03-31T14:07:43

Guest: Terry Jeffrey, Amy Goodman, William Colby, Jay Sekulow, William Donahue, Barry Lynn, Rick Santorum

DAVID GREGORY, GUEST HOST:  Tonight, time is running out for Terri Schiavo, as a federal court strikes down another appeal by her parents.  And what have Americans learned from this passionate debate about life and death? 

I‘m David Gregory, live from the White House.  Let‘s play HARDBALL.  [

Hi, everybody, once again.  I‘m David Gregory, in for Chris Matthews this week and reporting from the White House. 

For Terri Schiavo, it is day 13 without food or water.  And, as I mentioned just a minute ago, another appeal to the federal appeals court struck down, all an effort to get Schiavo‘s feeding tube reinserted.  Her family now, the Schindler family, has also again petitioned the Supreme Court, final efforts to save their daughter‘s life. 

NBC‘s Mark Potter is outside Schiavo‘s hospice in Pinellas Park, Florida, where there‘s been a certain flurry of activity this evening.

Mark, bring us up to date. 

MARK POTTER, NBC CORRESPONDENT:  Well, a short while ago, we saw the parents coming out of here with Terri Schiavo‘s brother and sister, with a priest going into the building. 

The attorney on the other side for Michael Schiavo, George Felos, has been in the building for hours.  We don‘t know why they went in there, but we‘re certain eager to find out what they have to say when they come out.  Meanwhile, as to that appeals court action today, in rejecting the request from the parents to reassert Terri Schiavo‘s feeding tube, the 11th Circuit Court of Appeals in Atlanta lashed out at Congress and the president for intervening in this case and for passing what the court believes is an unconstitutional law to save Terri Schiavo. 

Speaking for the court, Judge Stanley F. Birch defended the judiciary against those who have been railing against what they say is judicial activism.  And he also wrote—and I‘m going to quote here—“The legislative and executive branches of our government have acted in a manner demonstrably at odds with our founding fathers‘ blueprint for the governance of a free people,” a very harsh wording from the appeals court. 

But, still, the parent are insisting and are asking their lawyer now to file an appeal with the Supreme Court.  Meanwhile, David, the Reverend Jesse Jackson was back here today after visiting with Governor Jeb Bush in Tallahassee.  Jackson suggesting, after talking with lawmakers there, that perhaps the only real solution now is for Michael Schiavo, the husband, to turn over his wife to the—to her parents, as they have pleaded for years. 

But there has never been any indication that he would do that.  He has not spoken publicly today.  And, again, we‘ve seen his lawyer going into the hospice but we have not heard from him today.  So, we‘re all standing by for word on the condition of Terri Schiavo and for whatever else they might have to say—David, back to you.

GREGORY:  And, Mark, before I let you go, I think we were both struck last night by such a dramatic statement by Terri Schiavo‘s mother, pleading with Michael Schiavo and his girlfriend, with whom he has had a couple of children, to essentially let them have Terri Schiavo back, to become their guardians.  He is now the legal guardian.

He didn‘t feel any need to respond to that.  And does he feel in any way or his lawyer that the Schindlers have sort of monopolized the media attention here and sort of made him look worse? 

POTTER:  Well, they certainly believe that there has been a concerted effort on the part of the Schindlers and their supporters to make him look bad. 

Actually, the—Michael Schiavo and his attorney have been responding lately.  Michael did grant a number of interviews until the last few days ago.  His lawyer almost daily has spoken.  Today, he did not.  They have been less active than the Schindlers.  And, of course, this scene behind me is all in support of the parents.  There‘s no such thing like that from Michael Schiavo. 

They‘re getting their word out, but more quietly, perhaps more gently. 

GREGORY:  Right. 

POTTER:  And it seems that is what they‘re trying to do.  They don‘t want to be part of this and they‘re trying to set themselves aside—

David.

GREGORY:  All right, Mark Potter down outside the hospice in Pinellas Park, Florida—Mark thanks very much. 

Earlier today, I spoke to Republican Senator from Pennsylvania Rick Santorum, who has been a big supporter of the Schindler family in an effort to get feeding tube reinserted for Terri Schiavo. 

I began by asking him, since he met with the Schindler family, whether they had invited him down to Florida. 

(BEGIN VIDEOTAPE)

SEN. RICK SANTORUM ®, PENNSYLVANIA:  No.  Actually, I was scheduled to be down here on a lot of other business, including what we had originally scheduled, was a town meeting.  Senator Frist and Senator Martinez and I were to do a town meeting on Social Security here in Tampa right at this time, as a matter of fact. 

GREGORY:  Right. 

SANTORUM:  And we canceled it on Monday, but I had other plans to—and other meetings, and so I continued the trip. 

GREGORY:  Well, so what—how did you get hooked up with them? 

SANTORUM:  Well, I just decided, when I got in late last night, to come down and express, you know, my sympathies to them for what they‘re going through and just give them some comfort through a very, very difficult time. 

I don‘t care what side of the issue you‘re on.  Obviously, you have a family here that is going through a very difficult, high-profile, torturous situation.  And I just thought it was appropriate.  Since I was 10 minutes away, I just couldn‘t see not going to express my sympathy for what they‘re going through. 

GREGORY:  Heartfelt as it may have been, you also put yourself in the political theater of all this as well.  Was that a wise idea?

SANTORUM:  Well, what I have said very consistently is that I thought it was appropriate for the federal government to protect.  When a court has entered into this, which is what the case is here, a state court has entered into this decision, because there was a family dispute, and when state courts enter into it and they make a decision about death, which is what happened here, which is a sentence really tantamount to a death sentence, we—many of us on both sides of the aisle felt that there should be a review of the case by the federal court. 

And we passed the statute to do that.  The judge ignored it.

GREGORY:  But, Senator, what did the state court do wrong? 

SANTORUM:  Well, that‘s for—you know, what we‘re trying to determine is in fact what the state court did wrong and if they did anything wrong.  That‘s why we called for a federal review. 

When Scott Peterson files his appeal, which he certainly will, the federal court, after the death sentence that was given to him by a jury, not by a judge, you will see lots of opportunities for the lawyers to point out what the judges did—judge and the jury did wrong. 

GREGORY:  Yes, but Congress...

(CROSSTALK)

GREGORY:  But Congress never got involved in the Scott Peterson case and said there ought to be federal review. 

SANTORUM:  Because there is a statute that provides for that review. 

There is no such statute that provides for review in this case.

GREGORY:  But what I‘m trying to understand is, you and other conservatives think that there was a mistake made.  So, what was the mistake?

SANTORUM:  The mistake...

GREGORY:  And who are you to essentially pronounce that a mistake was made in the judiciary?

SANTORUM:  The mistake is that there is no federal review for a sentence by a trial court, which is tantamount to a death sentence, where there is a dispute as to—as to whether her due process rights were protected. 

So, this is not Congress trying to impose its will on a particular case.  It is simply making sure that rights have been protected when rights have been questioned. 

GREGORY:  I‘m just curious.  In Pennsylvania, have you ever tried to get the federal government to intervene in a death penalty case because you thought there wasn‘t due process there? 

SANTORUM:  I‘m not—I‘m not familiar with a case where—where similar circumstances have been made—are similar to this. 

And, as far as death penalty cases, as you know, I mean, there‘s—there‘s plenty of statutory protection.  The estimate I think for Scott Peterson is 20 years of appeals and through the federal court to determine whether everything that took place at a state court level was protective of his constitutional rights in the federal Constitution. 

GREGORY:  You made a point, though...

SANTORUM:  All we‘re asking for is a review. 

GREGORY:  You made a point that you think the judiciary in Florida, the state judiciary, federal, I guess, too, is somehow trying to trump the other branches of government that it is an arrogance of power.  Is that what you believe? 

SANTORUM:  I said that with respect to the statute that we passed.  We passed the statute.  We came back in emergency session.  We were able to pass the statute unanimously in the United States Senate with overwhelming majorities in the House, and the district court in the Middle District of Florida, that judge simply thumbed his nose at a direct expressed intent of the Congress. 

And he did so through an extraneous, contorted logic that doesn‘t pass the straight-face test.  It was—this is a judge who simply thought that he could trump a statute.  And I don‘t believe that‘s what judges are in the business of doing. 

GREGORY:  Right.  But they—he was an appointed judge and this is the federal judiciary. 

I mean, in other words, there‘s a lot of people who look at this case and say, a lot of this sort of attack on the judiciary is because you got an outcome that you didn‘t like. 

SANTORUM:  David, I don‘t think that‘s a fair reading of what we‘re doing here. 

All we said—and I can—you can interview a bunch of Democrats who joined with me in the Senate.  All we wanted was a new trial, a de novo hearing to bring in what was a lot of evidence that was not considered originally by the original trial court.  There‘s a lot of controversy surrounding this case, as obviously people know.

And we wanted to make sure that her rights were protected and therefore we wanted a new hearing.  The judge did not do what was expressly required in the statute.  That is a problem.  Judges should abide by the law.  They‘re not above the law.

GREGORY:  What about—what is Congress going to do next?  What options do you have and what do you think is going to happen next week? 

SANTORUM:  Well, I don‘t think anything necessarily is going to happen next week.  I mean, Congress—the only other statute—proposal that has been on the table was one the House passed that the Senate could not pass.  But it did the same thing. 

It called for a federal review of the case.  This judge ignored it once.  My guess is, if he has ignored it once, he‘ll ignore it again.  So, I‘m not too sure there‘s any recourse left on the—in the part of the Congress. 

(CROSSTALK)

GREGORY:  Nothing more for the Schiavo case.

SANTORUM:  Right. 

GREGORY:  Maybe there‘s more to look at for the future. 

You think that, basically, Congress can do nothing more for Terri Schiavo. 

SANTORUM:  I believe that is the case.

I do believe that we need to study this issue very seriously.  This is

·         one of the things I am more aware of as a result of this case is the frequency in which feeding tubes are removed and end-of-life decisions are made.  And, again, if someone has expressed their will on those things, that‘s certainly legal and we would support that decision. 

GREGORY:  All right. 

SANTORUM:  But where there are disputes, there needs to be safeguards of people‘s rights.  And, right now, that is not in place.

(CROSSTALK)

GREGORY:  We‘re to take a break.  And I want to pick up with that when we come back on the other side, more with Senator Rick Santorum when we return. 

You‘re watching HARDBALL, only on MSNBC. 

(END VIDEOTAPE)

(COMMERCIAL BREAK)

GREGORY:  Coming up, more of my conversation with Republican Senator Rick Santorum.  And, later, has Terri Schiavo been denied her religious rights?  We‘ll have that debate coming up, when HARDBALL returns.

(COMMERCIAL BREAK)

(NEWS BREAK)

GREGORY:  I‘m back with Republican Senator from Pennsylvania Rick Santorum. 

Senator, what would you like Americans to be thinking about after, even after Terri Schiavo dies, this tragic story plays itself out?  What should we be thinking about as a country and what laws do you think you and others in Congress should be passing to deal with this kind of situation? 

SANTORUM:  Well, obviously, I think it is important that people, you know, discuss these kind of decisions.  We now have extraordinary means for it to be—for people to be kept alive and even less than extraordinary mean, simple things like a feeding tube, that people need to discuss.

GREGORY:  Is that an extraordinary measure, by the way, to you? 

SANTORUM:  I would argue—I would argue food and hydration is not an extraordinary measure at all. 

And it is a very simple procedure and one that is not by any means extraordinary.  And so, obviously, a ventilator and a whole bunch of other extraordinary measures are, by definition, extraordinary.  But I don‘t believe food and hydration is.  That‘s No. 1. 

No. 2, as far as how we look at issues in the Congress, I wish I knew the answer.  I don‘t know the answer.  I mean, this is a new issue to me.  It‘s a new issue to I think many of us.  And having talked to Democrats and Republicans in the Senate, it‘s one that troubles a lot of us. 

And, No. 1, because of the implications of doing so.  And, obviously, having the federal government have—the federal courts have a review of this.  But we also believe, as I said before, that, if there is a dispute, and you have an individual who has not expressed their will and you have a dispute in the family, you know, there has to be someone there to make sure the constitutional rights, federal rights, federal civil rights and statutory rights are being protected. 

And that has historically been the purview of the federal courts. 

GREGORY:  Senator, let me ask you this.  If you believe in a culture of life, and if Terri Schiavo has become, in many ways, the new face for the right-to-life movement in this movement, then what is the effect of all of that?  You‘ve talked about rethinking your view about the death penalty.  Does this have larger political implications in terms of where conservatives are on the death penalty and other aspects of the right-to-life debate? 

SANTORUM:  I don‘t know.  I think—I think what we see in this case is someone with diminished capacity who people have said, because she is of diminished capacity, she doesn‘t have as many rights as other people. 

And that‘s troubling.  It is troubling to me that someone, because they‘re not, you know, all there one way or another, not normal in the eyes of people, they‘re the least among us, that they are somehow less deserving of life and less to be respected as life.  And I think that‘s a very dangerous slope.

GREGORY:  Right. 

SANTORUM:  And, obviously, you‘ve heard me talk about this in the past with respect to abortion. 

But it is a slippery slope.  And I think we‘ve—we‘re starting to reach the bottom. 

GREGORY:  Why have you rethought your views on the death penalty? 

SANTORUM:  Well, in principle, because of the DNA evidence that turned up.  And I‘ve been a strong supporter of making sure that everyone gets DNA testing. 

And we are a society now that I think is so preoccupied with death. 

And these issues are not new. 

GREGORY:  Right. 

SANTORUM:  To many people, that we need to be very cautious about how the government goes about executing people. 

GREGORY:  I‘ve got 20 second left. 

Howard Dean, new chair of the DNC, says you are a marked man, that: 

The party would do anything we can to defeat Santorum next year in Pennsylvania. 

And you could be a guy who runs for president, too.  Why has he got his sights on you? 

SANTORUM:  Well, I mean, I‘m in—I‘m in a tough state.  They recruited a candidate against me.  But I feel very good about our chances in Pennsylvania.  I‘ve worked very, very hard.  I do my best to represent the interests of the people in that state.  And I am going to work hard to do so for the next two years and six after that.. 

GREGORY:  Are you worried about Howard Dean? 

SANTORUM:  Ah, well, I think the Democrats should worry more about Howard Dean than me. 

GREGORY:  Senator Rick Santorum, thanks very much.  Appreciate you coming on. 

SANTORUM:  Thank you. 

GREGORY:  We‘re going to have much more on the Terri Schiavo case when we come back.  You‘re watching HARDBALL on MSNBC. 

(COMMERCIAL BREAK)

GREGORY:  We‘re back on HARDBALL and the debate about whether Terri Schiavo has been denied her religious rights as she clings to life in that Florida hospice. 

Yesterday, according to her family, a Catholic priest was threatened with arrest while trying to offer holy communion, a concentrated drop of wine on her lips.  Her parents, many supporters, saying that this is a violation of her rights. 

I‘m joined now by two guests who will debate the issue and talk about it with me.  William Donahue is the president of the Catholic League.  And Reverend Barry Lynn is the executive director of Americans United For Separation of Church and State. 

Mr. Donahue, Let me begin with you. 

By court order, over the weekend, she was given, Terri Schiavo was, last rites and communicate.  Why do you think, this instance, that wasn‘t enough? 

WILLIAM DONAHUE, PRESIDENT, CATHOLIC LEAGUE:  Well, I guess that comes down to the wishes of the parents, as to what they would like to see done. 

I mean, after all, whatever one says about this, the request is rather modest.  One wonders, why is Michael Schiavo not going to accede to this minimal request?  After all, he can still get his way.  She‘s going to be starved to death.  Why can‘t she be starved to death by getting holy communion?  It seems to me...

GREGORY:  But he has not denied it.  I mean, let‘s be fair here.  She received it over the weekend. 

DONAHUE:  He doesn‘t want it.  There‘s been no indication that he has implored the judges to say, please—and by what right, anyhow, to judges have to say that a sacrament of the Catholic Church cannot be administered? 

I mean, after all, they‘re saying that, if she gets holy communion, she may choke.  Well, talk about selective sensitivity.  My God.  The only reason they want her to die is because they don‘t think she is going to get out of this particular state.  And now they‘re worried she might choke? 

GREGORY:  Reverend Lynn, comment?

BARRY LYNN, EXEC. DIRECTOR, AMERICANS UNITED FOR SEPARATION OF CHURCH

AND STATE:  Yes. 

I think what Bill Donahue is doing is using holy communion as a weapon.  Not only did—was communion given to Mrs. Schiavo before the feeding tube was extracted the day that it was extracted.  But on Easter Sunday, there were two services.  One involving the full last rites of the church, including holy communion, that she participated in with her siblings and then, later in the day, a sacramental blessing involving Michael Schiavo and his wife. 

So, what I‘m afraid is happening here is that people like Bill Donahue, Randall Terry down in Florida, are trying to turn this into a religious liberty debate, when all it is, is a family law debate, the same kinds of issues that have been resolved over and over again. 

Mr. Donahue does not like the conclusion that 25 courts have now come to in this case.  So he would like to find some red herring to throw into the argument.  And, frankly, I don‘t think it is going to work. 

GREGORY:  It‘s not just communion.  There‘s also a fight about what happens after death.  And Michael Schiavo has made it clear that he will not accede to the wishes of her parents and have Terri Schiavo cremated.  He want her with his family plot outside Philadelphia. 

Mr. Donahue, do you think he ought to give up on this point or should he have the right, as her spouse, to make that decision? 

DONAHUE:  Well, look, legally, he may have the right. 

All I‘m saying is this.  And Barry misses my...

(CROSSTALK)

GREGORY:  Morally, does he have the right?

DONAHUE:  I did not say that there was a constitutional right to communion. 

I‘m simply saying this, that a decent man would allow his starving wife to have this, the request of the parents, to give her holy communion.  And a decent man would allow Christian burial.  Why is he so mean-spirited? 

LYNN:  Bill...

DONAHUE:  After all, he is getting his basic wish.  She is going to be starved to death.  Why not accede to this? 

LYNN:  Listen, listen, Bill, I—so many people have talked about this man as an indecent man or worse, a murderer, a killer. 

DONAHUE:  Oh, you like him. 

LYNN:  No. 

What I‘m saying is this.  He has allowed repeatedly members of the family, including the parents, many of their spiritual advisers, to go into that hospice room with Mrs. Schiavo, knowing full well that they will go out, talk to the press, and absolutely, through their spokespeople, directly in many instances, refer to him as a killer or someone that is interested in murder. 

(CROSSTALK)

LYNN:  What more do you want this man to do?  He has allowed the religious rituals of the church.  He has allowed the visitation of all of these individuals. 

(CROSSTALK)

DONAHUE:  Why did he deny her therapy all these years? 

LYNN:  He did.  He worked eight years, Bill Donahue.

DONAHUE:  He never allowed therapy. 

LYNN:  Before he gave up on so-called therapy. 

(CROSSTALK)

LYNN:  You don‘t like the idea...

GREGORY:  Mr. Donahue, I want to—I want to get up on this point and pick up on something you said.

On what basis do you judge Michael Schiavo so harshly?  And, second, why is it that you‘re so comfortable making judgments that are essentially in violation of the sanctity of marriage here, the relationship between a man and his spouse?

DONAHUE:  David, David, look, let‘s live in the real world.  This guy dumped his wife years ago, ran off with some other woman, had children by her.  And he still stands in the way of her parents. 

All they—all the parents want is to say, you give me my daughter. 

We‘ll take care of it.  We‘ll never bother you for the rest of our life.  And he stands in the way, this cheating husband?  You‘d better believe I‘ll be judgmental about it. 

LYNN:  Oh.

DONAHUE:  And I think the guy has got an agenda. 

Any decent man would say to them, you can bury her.  You can do all you want.  After all, I‘m getting my way.  I‘m able to starve her to death. 

LYNN:  You know, it is shocking to make these kind of moral judgments after 15 years. 

DONAHUE:  Oh.

LYNN:  I am not going to sit here and make moral judgments about a man who, after eight years of taking care of Mrs. Schiavo, decides he wants...

DONAHUE:  Taking care?

LYNN:  Wait a minute.  Excuse me.  Let me finish—wants to go on and start a family. 

We don‘t know whether Mrs. Schiavo, unless you‘ve talked to her, wants a divorce.  We do know that he does not feel that it‘s—that this is something he should grant, because he says she told him what she wants.  And that‘s so far uncontested evidence.  She wants him—she wants to be allowed to die. 

(CROSSTALK)

GREGORY:  Reverend Lynn, I—Reverend Lynn, Reverend Lynn, I want to ask you this question. 

This is beyond this particular debate about Michael Schiavo and whatever people believe about him, good or bad.  How difficult is it in families in this kind of position, where he clearly has beliefs about what his wife would want and how she would want to live or die, and yet you have a family, you can understand where her parents are coming from...

LYNN:  Absolutely.

GREGORY:  ... who—who simply want to be able to take care of her, of their child, and get guardianship? 

LYNN:  That‘s a...

GREGORY:  Is he doing the right thing by not saying, look, if you feel that strongly about it, I‘m going to—I‘m going to—I‘m going to walk away, but you can—you can care for her? 

LYNN:  I think that he is making a judgment which he believes is honestly true and that the courts have upheld consistently. 

You know, when you were chatting with Senator Santorum, I thought he was literally talking about some other case, because this, these questions that he wants reviewed have been looked at by judges in a compassionate way, not just a legalistic, formulaic way.  And they have decided that Michael Schiavo, contrary to the claims of some, is the best person to be the guardian. 

And this law that we have in this country—and I‘m a lawyer, as well as a minister—we don‘t have a perfect judicial system.  I like the fact that there were opportunities to appeal the decision of that first probate judge.  But now it is time for Bill Donahue, Jesse Jackson and everybody else to just get out of the way. 

GREGORY:  Mr.—I‘ve got a minute left. 

Mr. Donahue, I want to change to a different topic before I let you two go.  And that is the pope, in his ailing condition, is now getting a feeding tube.  Why is that not an extraordinary measure to prolong his life? 

DONAHUE:  Because no one can live without food and water.  And that‘s exactly why.  The fact of the matter is... 

(CROSSTALK)

GREGORY:  Well, but wait a second.  But how—we can‘t live without -

·         We can‘t live without air either.  And yet we consider a ventilator extraordinary measures.  Isn‘t that true? 

DONAHUE:  He is—the question before the court is this; 25 years ago, the case was involved in Long Island.  Father Eichner, the chairman of the board of the Catholic League, he wanted a respirator pulled from Brother Fox (ph).  He was 83 and in a coma. 

So, I will agree with you on this, David.  It is not the technology.  It is the circumstance.  But the fact of the matter is, this pope is ailing and yet it‘s OK.  No one is complaining about him having the feeding tube.  This woman is not in a coma.  She‘s been denied therapy by her loving husband. 

(CROSSTALK)

DONAHUE:  Do you know what?  The only thing left is for the Schindlers to say to the Democrats, we want to take her to Cuba.  And you know what? 

LYNN:  Oh, for Pet‘s sake.

DONAHUE:  Then the Democrats will send in the SWAT team, just like Elian, and we‘ll all be—everybody will be happy. 

(CROSSTALK)

GREGORY:  Guys, we‘re going to have to leave it there. 

LYNN:  All right. 

GREGORY:  You‘re fierce debaters.  We‘re going to have to leave it there. 

My thanks to William Donahue and Reverend Lynn. 

LYNN:  Thank you. 

GREGORY:  We‘re going to look at a live shot from Pinellas Park, outside Terri Schiavo‘s hospice tonight, where there‘s been a flurry of activity.  And it looks like there may even be a press conference beginning in a few minutes.  We are monitoring that. 

We‘re going to come back with more on the—back with more HARDBALL in just a moment.  We‘ll continue to watch this.

(COMMERCIAL BREAK)

(NEWS BREAK)

GREGORY:  We are back on HARDBALL.  I‘m David Gregory, in for Chris Matthews, and reporting tonight live from the White House with more on the Schiavo case.

We‘re going to take you back to Pinellas Park, Florida, where our correspondent Mark Potter is standing by.

Mark, we had mentioned to the audience just a couple of minutes ago, there was a press conference involving the family tonight and their legal adviser.  Bring us up to date on what‘s going on.                 

POTTER:  Actually, it is a spiritual adviser who is speaking right now. 

A moment ago, the—the family, the parents, and the brother and the sister walked out of the hospice accompanied by Father Frank Pavone.  And he has been a family friend for a long time.  He has been speaking, talking about Terri.  He made a couple of points.  He said she is holding stuffed animals.  If they were real animals, you couldn‘t do to them what people are doing to Terri.  There are flowers next to her bedside with water in the flower vases.  Terri gets no water.  The obvious point is there.

He says that what is being done here is a monumental disaster for our nation and our civilization.  I believe that he is still speaking.  It is expected that probably someone from the family will speak.  Typically, that is Bob Schindler.  And we‘re just waiting to hear about Terri‘s condition from the family. 

We heard from the father earlier this morning that she, as he says, is doing well under the circumstances.  But then he makes the point that she‘s gone almost two weeks without food.  So we‘ll see what they have to say next—David.

GREGORY:  All right, Mark Potter down in Pinellas Park, Florida, thanks very much.  We‘ll come back to you as news warrants. 

That‘s from the spiritual adviser. 

Let‘s talk about some of the legal maneuverings that we mentioned at the top of our report tonight, again, the Schindler family, a last-ditch appeal to the federal appeals court in the 11th Circuit.  They were denied.  They are petitioning the Supreme Court again, this on day 13 without food or water for Terri Schiavo. 

I‘m joined now by Jay Sekulow, who is the chief counsel for the American Center For Law and Justice.  And he has represented Terri Schiavo‘s parent before the U.S. Supreme Court.  And William Colby, who is the author of “The Long Goodbye,” which it was Nancy Cruzan right-to-die case that he tried before the Supreme Court. 

Welcome to both of you.

Mr. Colby, let me begin to you. 

Any surprise for you on these last-minute appeals that were denied? 

WILLIAM COLBY, AUTHOR, “THE LONG GOODBYE”:  No. 

My sense is, the realistic appeals are exhausted for the family at this point.  We had a similar thing that happened in Cruzan at the end, with several emergency appeals.  Ultimately, we are a nation of laws, and the courts have spoken.  It doesn‘t make this tragic case any easier for the human beings involved.  But I think the court system and the rule of law has run its course at this point. 

GREGORY:  Jay Sekulow, you may have heard my conversation with Senator Santorum.

JAY SEKULOW, CHIEF COUNSEL, AMERICAN CENTER FOR LAW AND JUSTICE:  Yes. 

GREGORY:  Who makes the case in this particular case, look, let‘s treat it like a death penalty case.  Let us get adequate review at the federal level of state court decisions.  And he feels and many in Congress feel, and maybe you feel the same way, that, in effect, the federal appeals court has thumbed its nose at this intervention.  And you hear that from Mark Potter, in terms of the language they used, not liking Congress or the president to get involved. 

SEKULOW:  You know, I agree with what Rick Santorum said, though.

The idea that a will of Congress, a bill passed by Congress could be nullified by a court the way they‘ve nullified it here, is really, really unfortunate.  Now, interestingly, early this morning, the court of appeals granted an emergency review of another petition, something that our office was involved in, our Washington, D.C. office.  And that was on the due process ground.

And that‘s what Rick Santorum was talking about.  In a death row case, you go all the way through the state court system and then you start all over again in the federal courts.  And that was the idea of this legislation.  But, unfortunately, the courts continue to just ignore that legislation, although it is a very interesting lineup in these cases. 

You‘ve got some conservative judges on the 11th Circuit that do not like the legislation. 

GREGORY:  Right. 

SEKULOW:  And then you‘ve got a Clinton appointee, appointed by President Clinton, that thought the legislation was appropriate, and another judge that thought review should have been mandated here.  So, it is a very strange ideological mix. 

GREGORY:  William Colby, as a matter of law, is there any reason for this case to get a new review? 

COLBY:  Oh, I think Jay probably just articulated the best argument for having new review, that, to have a full de novo review.  Has Congress mandated that and has that happened, with the federal court simply looking at the stay standard to see if there‘s likelihood of success on the merits?  Maybe yes, maybe no. 

GREGORY:  Right. 

COLBY:  I think Jay probably just articulated the best argument for having new review, that, to have a full de novo review.

Has Congress mandated that has that happened, with the federal court simply looking at the stay standard to see if there‘s likelihood of success on the merits?  Maybe yes.  Maybe no. 

GREGORY:  Right. 

COLBY:  But this case has been in our system, has been very thoroughly it litigated.  And hearing you two talk, I think it raises fascinating questions about where we go from here and how our laws will evolve in this area.  What is the nature of a feeding tube?

GREGORY:  I‘ve got—I‘ve got a minute left. 

I think there‘s something else that‘s interesting, Mr. Sekulow.

SEKULOW:  Yes. 

GREGORY:  Which is this kind of war on the judiciary. 

SEKULOW:  Yes. 

GREGORY:  Which is very much a political movement now that‘s going on. 

Is it appropriate? 

SEKULOW:  Well, I think it is, because what‘s happened is, everybody is starting to realize that the federal courts have almost usurped Congress here.  They have more authority right now.  They‘re supposed to be a co-equal branch of government.  But they‘ve become much more than that.

And I think that‘s something the American people are attuned to.  And if anything good comes out of this tragic situation—and it is a tragic situation—it is going to be the American people realizing that federal judges do matter.  And it‘s not just their label, conservative or liberal.  It is their judicial philosophy that makes a difference. 

GREGORY:  We‘re going to come back on HARDBALL with Jay Sekulow and William Colby and talk about where there may be room for new law, even after this tragic story of Terri Schiavo plays out. 

Don‘t forget, by the way, to sign up for HARDBALL‘s daily e-mail.  You log on to our Web site, HARDBALL.MSNBC.com.

We‘ll be right back.

(COMMERCIAL BREAK)

GREGORY:  More on the legal battle over the Schiavo case when we return.  And later on, has the media been manipulated in its coverage of this case?  We‘ll have that when HARDBALL returns.

(COMMERCIAL BREAK)

(NEWS BREAK)

GREGORY:  We‘re back on HARDBALL and the legal debate, the legal wrangling in the Schiavo case.  We‘re joined again by Jay Sekulow and William Colby. 

Mr. Sekulow, let me go back to you.

I think, when we talk about passing a new law, we have to ask ourselves, well, what is broken with the system?  We know that these kinds of end-of-life decisions are made all the time.  What is different is the dispute within the family.  But can anybody really argue that Terri Schiavo or her family did not get plenty of due process? 

SEKULOW:  Well, I think there should have been more due process, because this was a convergence of a unique set of factors. 

You had a situation where the patient, Terri, was not on a ventilator, which is typically—happens frequently.  You had another situation where there was a disagreement within the family.  Again, generally, the families tend to agree.  And third, and I think most significant here, the husband, Michael Schiavo, has what is in essence a common law wife and a new family. 

And that in and of itself should have disqualified him, in my view, from guardianship.  And that is not to dispute him or—any way or try to disparage him in any way.  It is just a fact.  He has another family.  Guardians are supposed to be basically trustees.  And there is an inherent conflict of interests when your wife is lying in a hospital bed and you‘re controlling her life and you have another family.  So that should have been it right there.

GREGORY:  William Colby, is that a fair point? 

COLBY:  I think it is hard to think about new laws helping us here. 

I‘m sure, when the Florida legislators many years ago passed the law that said , if someone can‘t speak for herself, her husband decides, they thought they were solving this problem.  I know, back in Missouri in the mid-‘80s, I talked to the legislators who passed our first living will law. 

GREGORY:  Right. 

COLBY:  They thought they were solving Cruzan. 

But the law—people are always surprised how limited the reach of the law is in this area.  And I don‘t know that the law can solve the problem of the Schiavo and Schindler family.

GREGORY:  Well, but what about the idea?

SEKULOW:  I think it could.

GREGORY:  Yes, even if the law says, that, legally, he is still married, if Michael Schiavo has moved on, should not a state court judge look at some of the circumstances and say, you know what, guardianship here...

(CROSSTALK)

SEKULOW:  That should have been the end of the case.  That should have been the end of the case, actually.

COLBY:  Maybe we‘ll revisit that after this case in terms of our guardianship rules. 

GREGORY:  Right. 

COLBY:  Maybe we‘ll look at laws and say, if it is unclear what someone‘s wishes were and there‘s a debate among extended family, then we‘ll defer to leaving the feeding tube in, even if we‘re given the power to another person. 

SEKULOW:  I think that is the right...

COLBY:  It is never nice and—it is never nice and easy. 

GREGORY:  Yes. 

COLBY:  It is an emotional, personal, human debate.  And the great silver lining of this tragic story is that, as never before, literally, million of families now are talking about Terri Schiavo. 

(CROSSTALK)

SEKULOW:  Yes, but when you—the guardian conflict should have been enough.  I think we all agree on this.  The guardian conflict should have been enough to disqualify Michael from being the guardian. 

And that is the thing I think that indicates to all of us that are litigating this case that there wasn‘t due process, because how could you have due process of law, the protection of life, which is in the due process clause, when you have a husband with another family involved here?

(CROSSTALK)

GREGORY:  But, despite all of that, the law still says that Michael Schiavo knows his wife better than even his parents.  And that‘s why he is in a position to decide.  True?

SEKULOW:  But he should not be—he‘s not—he can‘t be acting solely in her best interests when he has another family. 

What would he do if, miracle of miracles—and it would be a miracle

·         she were to come out of this and he has another family?  Explain that to Terri. 

GREGORY:  All right. 

SEKULOW:  And that shows you the conflict. 

GREGORY:  We have got to leave it there.  Jay Sekulow, William Colby, thanks very much for coming on. 

(CROSSTALK)

SEKULOW:  Thanks.

GREGORY:  We‘ll be back in just a moment with a look at the media debate, how we‘re covering the Schiavo story, when HARDBALL returns.

(COMMERCIAL BREAK)

GREGORY:  Welcome back to HARDBALL.  I‘m David Gregory, in for Chris Matthews tonight. 

The Schiavo case has become a news staple on television, radio, in print.  In a story like this, where emotions run high, has the coverage been fair?  Amy Goodman is host of the liberal radio and TV snow “Democracy Now” and author of “The Exception to the Rulers: Exposing Oily Politicians, War Profiteers, and the Media That Love Them,” now out in paperback.  And Terry Jeffrey is here, syndicated columnist and editor of the conservative newspaper “Human Events.”

Welcome, both of you. 

AMY GOODMAN, HOST, “DEMOCRACY NOW”:  It‘s great to be here.

TERRY JEFFREY, EDITOR, “HUMAN EVENTS”:  Good to be here, David.

GREGORY:  Terry, are we getting it right?  Is the media getting this right on the Schiavo case? 

JEFFREY:  Well, you know, I think, since they disconnected her feeding tube, David, the establishment media has done an outstanding job, particularly cable TV.  I think the nation has become familiarized with the facts of the case. 

Before that, I don‘t think that‘s true.  I think the earlier press coverage, before this became a huge national issue, where it was all over the Internet and everywhere else, there was a shorthand used by the major press when they dealt with this, which didn‘t give people the critical facts for them to make an intelligent decision.  And I think, fortunately, the Internet was there. 

(CROSSTALK)

GREGORY:  All right.  But what facts, what facts are you talking about? 

JEFFREY:  Well, you know, they would say she‘s in a persistent vegetative state, which I think gave people a false idea of what her situation really was.  You would go to the Web and see videotape her that was posted by her family.

GREGORY:  Right. 

JEFFREY:  That would give you a quite different picture of her situation than you would get from reading the typical newspaper article. 

GREGORY:  OK, a different picture, but, you know, you really can‘t tell her condition by looking at these pictures.  We know what a vegetative state is medically. 

(CROSSTALK)

JEFFREY:  Well, you can tell—you can tell the critical fact.  This is a living person.  This is a living person. 

GREGORY:  Right. 

JEFFREY:  And that drives home the fact that the actions that are being taken now in Pinellas Park are intended to kill her.  And so far, the state of Florida, through Judge Greer, has spent 13 days trying to kill this person that we all know is very much alive. 

GREGORY:  That‘s also part of the language that is being used that is driving thing debate, frankly, the idea that somebody is trying to kill her and that removing the feeding tube is an act of starvation, which is a disputable point.

What is your take? 

GOODMAN:  Well, David, I would like to go outside the hospice to where the protesters are.

I think that the model the media has used is continually going to this small group of a couple dozen protesters—they hold—Randall Terry holds a news conference, they are right there going live to it—should be the model used to cover other protests in this country.  We just passed the second anniversary of the invasion of Iraq.  Tens of thousands people marched in more than 800 actions around this country.  On no major nightly newscast on that second anniversary was a protester interviewed.  So, let this be the model for treatment of protesters. 

GREGORY:  Well, why do you think it different now? 

GOODMAN:  I think that we‘re talking about is an extremely conservative media and right now a couple dozen protesters are being heard.  I think it‘s a good thing to be heard.

GREGORY:  Now, see, I haven‘t heard that a lot, the conservative mainstream media. 

(CROSSTALK)

JEFFREY:  Well, David, before I came over this afternoon, I got on LexisNexis and I looked at the editorials in “The New York Times,” “The Washington Post”, “”The L.A. Times” and “The Chicago Tribune.”

GREGORY:  Yes.   

JEFFREY:  Now, they‘ve all taken the position against preserving Terri Schiavo‘s life.  They all opposed the bill passed by Congress that Senator Santorum talked about on this show.  So, I don‘t think you can say the establishment media, as exemplified by those four major newspapers...

(CROSSTALK)

GREGORY:  But let‘s not take it all one argument.  It‘s on different bases, why people opposed federal intervention.  Some conservatives do, too.  I mean, what I‘m hearing from you is an attempt to say that this is basically one point of view to kill her. 

(CROSSTALK)

JEFFREY:  Well, let me say why I think the liberal establishment here is inconsistent and why I think Reverend Jesse Jackson has appropriately stepped into this case.

This is a civil rights issue.  The 14th Amendment gives the federal government the duty to make sure that the states do not deprive the citizens of their constitutional rights.  Now, once upon a time, we had Jim Crow and segregation in the South, where Southern states discriminated against blacks, didn‘t let them use public facilities in the schools.

Here we have the state of Florida discriminating against the right to life of Terri Schiavo, literally putting her to death.  This is a civil rights issue where the federal government had a 14th Amendment mandate to do what they could to protect and defend her life. 

GREGORY:  What do you think about that?

GOODMAN:  I was—I was very interested to hear Senator Santorum talk about even death row prisoners have more rights when it comes to federal appeals, yet Senator Santorum himself voted to limit those federal appeals when it comes to death row prisoners. 

I think it‘s very important that all people have full review when it comes to ending their lives.  And I also think on this issue it is a very complicated issue.  And I think it goes to another point in this country.  I think conservative and liberal lines are breaking down on many different issues, on issues of corporate control, on issues of privacy.

But what the media hasn‘t emphasized as much in this case, no matter how painful and tragic it is, is that the overwhelming majority of people in this country were opposed to congressional intervention.  In fact, the majority of evangelicals were opposed to congressional intervention.  And it really goes to people like Tom DeLay, who now has stepped back because of those polls.

(CROSSTALK)

GOODMAN:  It was very politically motivated, what they did.

JEFFREY:  Even if you—every if you credit those polls—and for the sake of argument, I‘m willing to credit them—if 99 percent of the people in this country said it was OK for the state to deliberately kill an innocent person, that would not make it right for the state to deliberately kill an innocent person. 

GOODMAN:  I agree with that. 

(CROSSTALK)

GREGORY:  This is what I think is actually significant about where the coverage has gone. 

I think that people are having serious discussions about life in this country, about the meaning of life, about how we determine whether life is worth living.  So, I think this has been an incredibly positive discussion out of a terribly tragic story.  Unfortunately, it‘s on her sort of head, but, nevertheless, an important discussion.  Don‘t you think?

(CROSSTALK)

GOODMAN:  David, what I would say about that is that‘s absolutely true.  And if only we had these life-and-death discussions when it came to, for example, issues of war and peace, because the corporate media—and I wouldn‘t call it mainstream and I would include all the media, and not just Fox in this—when it came to coverage of war, icing out dissent.  And that dissent was the views of the majority of people in this country.

Let there be such a full discussion...

GREGORY:  I‘m sorry, but what dissent was absent from the coverage about the run-up to the Iraq war? 

GOODMAN:  Oh, please.

I mean, Fairness and Accuracy in Reporting, a media watch group, did a study of the four major nightly newscasts in the two weeks around Powell giving his address to war.

JEFFREY:  David, I—I—I...

GOODMAN:  Three of 393 interviews done were with anti-war representatives.  Across the board, people who are opposed to war were iced out of that discussion. 

JEFFREY:  Well, I‘ll agree with Amy on this point. 

I think the issue of war and peace is the same issue here.  It‘s respect for human life.  You have to have grave reasons to go to war, to risk human life, to defend something that is seriously important.  I do believe—I agree with you on the importance of this discussion.  I believe what Saint Paul said, that God wrote the truth on men‘s hearts.  It cannot be erased.

I think, when people see government allowing the killing of innocent people, whether it‘s an abortion or whether it‘s in Pinellas Park with the attempted killing of Terri Schiavo, they know in their hearts it‘s wrong.  And to the degree that we intelligently discuss these things, we look them in the face, we‘re going to move this country in a pro-life direction.  That‘s in terms of seriously considering when we go to war and not allowing the state to take the life of Terri Schiavo.

(CROSSTALK)

GOODMAN:  ... the death penalty in that.

(CROSSTALK)

JEFFREY:  Well, there‘s a distinction. 

Terri Schiavo has not committed a capital offense. 

GOODMAN:  I‘m talking about the death penalty, not Terri Schiavo now.

JEFFREY:  But I do think there is a distinction.

I think it is sometimes justified to take the life of a cold-blooded murderer.  I think you have to demonstrate the person is guilty.  I do believe that they deserve due process.  It should be reviewed in the federal courts.  But if you had an al Qaeda terrorist who let loose a radiological bomb in Los Angeles and you know that person was guilty, I think justice would say that person deserves to be executed. 

GREGORY:  Just to button this up, as part of this debate, I think there are theologians who would say, it‘s really not the decision of any man or woman to take another life.  And, if that‘s the case in Terri Schiavo, why is it not the case even in the death penalties?  I mean, I think it‘s part of the debate.

JEFFREY:  Well, Saint Thomas Aquinas would say that, underneath the positive law is the natural law and beyond that is the law of God. 

GREGORY:  Right. 

JEFFREY:  The law of the United States has to comport with the natural law and the law of God. 

(CROSSTALK)

GREGORY:  We‘re going to leave it there.  This is a great debate.  We could keep going.

Thanks to both of you, Amy Goodman and Terry Jeffrey, for a lively discussion.

Tomorrow night on HARDBALL, the presidential commission report on intelligence and the search for WMD in Iraq will be released.  And I‘ll talk to the co-chairman of that report. 

Right now, it‘s time for the “COUNTDOWN WITH KEITH OLBERMANN.”

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