MSNBC - HARDBALL - Jay Sekulow on Supreme Court Appeal in Schiavo Case

HARDBALL
MSNBC-TV
Washington, D.C.
March 23, 2005

For the second time in less than a day, a federal appeals court in Atlanta has denied a request to reinsert Terri Schiavo's feeding tube. Will the emotionally and politically charged case go all the way to the Supreme Court?

CHRIS MATTHEWS:  Jay Sekulow is with the American Center For Law and Justice. And John Flannery served as special counsel to House and Senate Judiciary Committees.

Jay, what would be your plea to the Supreme Court tonight? What do you think would work?

JAY SEKULOW, CHIEF COUNSEL, AMERICAN CENTER FOR LAW AND JUSTICE: First of all, I'd get it there. And that's No. 1. They better get this case up there quick.

MATTHEWS: Why are they messing around?

SEKULOW: I don't know, but it is taking too long. It needs to get up there, No. 1.

MATTHEWS: Because she's in desperate shape.

SEKULOW: Desperate shape, and the reports coming out of Florida, desperate. So, you're asking -- here's what you're asking Justice Kennedy. And that is who gets this case first.

MATTHEWS: He's regional judge.

SEKULOW: He's the justice in charge of that circuit.

MATTHEWS: He's the one that brought the election of 2000 up to the Supremes, right?

SEKULOW: That's correct. And he has the authority to do that here. He can grant a stay himself. He can deny the stay himself or he could refer it to the entire court. Likely, he will refer it.

(CROSSTALK)

MATTHEWS: He is seen as a political centrist.

SEKULOW: He is. And he may look at this case and say -- the hope for the Schindlers here -- and this is -- you know, it's a long shot, because you have always have got an uphill battle here. Their hope would be, this is different.

As Pete Williams said in his report, it's different than the other cases because it is a federal statute. Whether you like the statute or not, it is a federal statute and it is an act of Congress. So, does that give them another look?

But you bring up the whole question of timing here.

MATTHEWS: Right.

SEKULOW: And I want to reiterate that.

Look, they are running out of options in Florida, because you've got a judge's order now saying you can't go in and get her. That's Children and Family Services.

MATTHEWS: That's a state decision, right, by a judge...

(CROSSTALK)

SEKULOW: You've got to get this case to the Supreme Court.

MATTHEWS: In other words, that Jeb Bush, the governor, can't order one of his agencies to go collect her.

Let me go to the question here.

SEKULOW: He says he can, by the way, Chris. He says he has executive authority.

(CROSSTALK)

MATTHEWS: The Supreme Court could argue, Justice Kennedy could say -- and he is a centrist -- he is a moderate -- could say, you know, I think that district court judge was given an impossible situation. He was told to judge whether there's going to be a successful court action at the federal level anyway, which is hard to judge, and he was told to decide in a matter of hours, really, whether to reinsert those tubes. He wasn't given sufficient time. I'm going to order the reinstatement of those tubes and we'll see what happens.

(CROSSTALK)

MATTHEWS: He could do that, couldn't he?

JOHN FLANNERY, FORMER JUDICIARY COMMITTEE COUNSEL: Well, he could do that, but I don't think so in this case, because what the lawyers gave him on behalf of -- the Schindlers' lawyers -- gave the judge was not very much to work on. It was basically divided into two parts. One, the judge in the state court wasn't fair. And he said, well, he certainly was. He gave you every opportunity. And they had some of their facts wrong.

MATTHEWS: But this was supposed to be a de novo case. They weren't supposed to be judging a lower court action.

(CROSSTALK)

FLANNERY: But they raised the issue.

MATTHEWS: They made a mistake.

(CROSSTALK)

FLANNERY: Well, they made a mistake, two reasons. One is, they made a mistake of law and they made a mistake on the facts.

MATTHEWS: Right.

FLANNERY: They said that, for instance, there are no guardians appointed. And there had been three, other than the husband. And there were a whole number of things they just got wrong.

(CROSSTALK)

MATTHEWS: I'm not getting into the values here, because I share the values of the people worried about her.

SEKULOW: Sure.

MATTHEWS: You know, I'm Catholic.

SEKULOW: I think everybody in the country is sympathetic.

MATTHEWS: And everybody is sort of -- everybody is worried about life and these issues are very important to argue about.

(CROSSTALK)

MATTHEWS: But this is what David Gibbs said, the lawyer for the family, the Schindlers, the parents. He said, if they put her -- allow her to die because of natural causes, not getting food and drink, whatever, that's disobeying the Vatican.

And that could create additional damnation of her soul or add to the time of her suffering in purgatory. What is a secular...

(CROSSTALK)

MATTHEWS: What is a secular lawyer arguing before a secular...

(CROSSTALK)

MATTHEWS: First of all, the Catholic religion -- I'm informed here -- 16 years, John...

(LAUGHTER)

MATTHEWS: Does not believe the papacy or the College of Cardinals or the curia or anybody can set how much time you spend in purgatory.

(CROSSTALK)

MATTHEWS: If they still argue there is a purgatory, which is a problematic question.

(CROSSTALK)

MATTHEWS: You go to Jesuits, you wouldn't find that anymore.

(CROSSTALK)

MATTHEWS: But the fact is, what is a secular at this...

FLANNERY: Exactly.

MATTHEWS: What is a secular lawyer arguing before a secular court that this could mean more time in purgatory for this woman?

(CROSSTALK)

MATTHEWS: What religion is this?

SEKULOW: Let me just say, here's what I think he was trying to say. And, obviously...

MATTHEWS: What he's trying to say?

(CROSSTALK)

SEKULOW: He was trying to assert -- yes, he was trying to assert a religious liberty claim, basically, in the middle of this.

Now, what I would have done differently, frankly, is...

(CROSSTALK)

MATTHEWS: No, that's not what he said.

SEKULOW: I know what he said.

(CROSSTALK)

SEKULOW: That's the only conceivable thing, Chris, he could have meant.

Now, here's what it should have been. Whether you think it is right or wrong -- and I, of course, think the Schindlers are right and they should have this situation stopped.

(CROSSTALK)

MATTHEWS: Before I make a judgment, I would like to hear the facts on her.

SEKULOW: Correct. That's what...

(CROSSTALK)

SEKULOW: ... supposed to be doing.

MATTHEWS: In a deposition under oath, one of her nurses said she was feeding her milkshakes and all other kinds of stuff.

SEKULOW: That should have been given to the federal judge.

MATTHEWS: Yet, I am told -- I am told that she would have aspiration if she swallowed, attempt to swallow any -- even water, she would aspirate. That's why she's under feeding tubes. You hear arguments like he's...

(CROSSTALK)

MATTHEWS: Like that Bill Schindler -- or Bill Schiavo -- or Michael Schiavo, the husband, comes by and says, is the bitch still dead -- or still alive?

(CROSSTALK)

MATTHEWS: I mean, these awful, awful depositions being taken here.

(CROSSTALK)

SEKULOW: When the court asked for -- was supposed to do de novo review here.

MATTHEWS: Right.

SEKULOW: And the problem was, now, you go in and you argue this religious liberty claim, you're throwing court off balance, too. What someone should have come in and said is, here's new evidence. It is de novo review. The stay should be in place while you review it de novo.

Unfortunately, that's not the way this case ended up.

MATTHEWS: OK, let me ask you this. You're an attorney, right?

SEKULOW: Yes. Yes. Yes.

MATTHEWS: OK, you are an attorney before the Supreme Court tonight.

SEKULOW: Yes, sir.

MATTHEWS: It's your moment of greatness.

SEKULOW: Yes. I've done 13 of them.

MATTHEWS: Show me.

SEKULOW: Yes.

MATTHEWS: What would be your greatness? What would you do to get this case?

SEKULOW: I would...

MATTHEWS: Taken up by the Supremes and sent back to district court, so this woman stays alive.

SEKULOW: I would say here's the -- I would be -- one issue to the court.

Congress said it's de novo review. You can't do de novo review of it, which means a complete review of the evidence, in an hour and a half trial. That's it, enough to...

(CROSSTALK)

MATTHEWS: So, we were jamming the district court judge. He needs another shot.

SEKULOW: Correct. Yes.

(CROSSTALK)

FLANNERY: But they never asked -- they never asked the court to do that. They came in with five claims. Three of them were, the state wasn't fair to us. He considered those and rejected them.

(CROSSTALK)

MATTHEWS: He threw everything at the wall to see what stuck.

FLANNERY: And the other two were these religious claims.

(CROSSTALK)

FLANNERY: Pope Paul said that you can't -- you can't refuse hydration and nutrition.

MATTHEWS: That would say to me they were desperate.

FLANNERY: And the judge threw it out. And he was right.

(CROSSTALK)

MATTHEWS: The fact that they would resort to an interpretation of a religious belief, and then, I would argue, distort it, because I don't know any religious belief that a woman suffers for the actions of another.

(CROSSTALK)

SEKULOW: The court should not be put in a situation, though, of having to play theologian. That's part of the problem here.

What needed to go on in that court proceeding, I think, is that you have got a quick proceeding. And the judge is obviously looking at this case. It is an emergency case however you look at it, because this woman is being starved to death one way or the other. You have got to say, look, here's what Congress said. Unless you find the statute unconstitutional on its face, which he did not.

MATTHEWS: Right. OK.

SEKULOW: OK? You've got to look at the evidence afresh. But one of the difficulties, they didn't put the evidence -- they didn't put the evidence up.

(CROSSTALK)

MATTHEWS: I've got to ask you all, John first.

(CROSSTALK)

MATTHEWS: Every time the court, the Congress gets involved or the feds get involved, it is to try to straighten something out, so it doesn't happen again. We don't want the Supreme Court dealing in these cases.

FLANNERY: Right.

MATTHEWS: There's hundreds of thousands of these a year, if not more.

FLANNERY: Right.

MATTHEWS: What can they do to correct it? Do they think the federal judge or the state judge who recognized the guardianship of the husband was wrong? Who made a mistake here that would justify federal intervention?

FLANNERY: Congress led everybody to believe that they were going to save the Schindler family's view. And they took a position at the beginning. And because they were unfair, they have created all this trouble, which I think, ultimately, will end up with the Supreme Court doing what I think it should do, whether it does its...

(CROSSTALK)

MATTHEWS: Well, you mean even allowing that they were right, they may have done it wrong?

FLANNERY: Well, they certainly did it wrong, yes.

SEKULOW: The difficulty with this case is that, because you had a situation where Michael Schiavo also has another wife and two children, that's what made the convergence of facts here...

(CROSSTALK)

MATTHEWS: I wish I had an -- I wish I had an hour or two with you guys.

(CROSSTALK)

MATTHEWS: Thank you very much, Jay Sekulow and John Flannery.