MSNBC - THE ABRAMS REPORT - Jay Sekulow Discusses Impact of Schiavo Case on Judicial Nominations

MSNBC - THE ABRAMS REPORT
March 31, 2005

DAN ABRAMS:  Terri Schiavo's case heard by almost 40 judges in six courts. Six times, the U.S. Supreme Court refused to intervene in the fight over her life. And after nearly 13 days without food or water, Terri died this morning.

Joining me now to discuss this, Harvard Law Professor Arthur Miller and Jay Sekulow of the American Center For Law and Justice.

Jay, do you agree with what Tom DeLay was just saying about sort of the judiciary and how it was all the judiciary's fault?

JAY SEKULOW, CHIEF COUNSEL, AMERICAN CENTER FOR LAW AND JUSTICE: Well, I think it was a combination. Fault is a hard thing to produce in a case like this.

I think the court got wrong. You and I have talked about that before, Dan. I agreed with the Justice Clinton appointee, Judge Williams in the 11th Circuit, and Judge Tjoflat that said that due process was violated here.

But I do think one thing this is going to highlight for everyone, no matter where you come down on the philosophical and ideological spectrum of this, I think it's going to -- it shows the importance of judges. And, of course, I'm an officer of the court and a member of the bar of the court, so I'm always careful on -- even when I disagree with the court's decision, you do it respectfully.

But I do think what the American people learned from this is for good or for ill the federal courts are very involved in American life and that's what this is showing.

ABRAMS: But, Arthur, the bottom line is what the federal courts did here is say we're not going to get involved. People talk about these activist judges. And the federal court here are saying we're not going to get involved.

ARTHUR MILLER, HARVARD LAW PROFESSOR: I find some of the discussion about this, Dan, absolutely bizarre, off the charts, out of the world.

When I hear Mr. DeLay talk about an arrogant judiciary, my mind is boggled, because there is no nation on Earth that would have given any individual more process and due process and reexamination and careful consideration than poor Terri Schiavo received in this case.

And when you talk about the federal judges, they were handed a job to do, to reevaluate and look. They looked. Some people don't like the result, that they didn't intervene. But they did their job.

ABRAMS: Yes. And it seems to me, Jay, isn't it dishonest for those who say, you know, oh, this is the example of why the courts are so dangerous in a way? I mean, the bottom line is...

(CROSSTALK)

ABRAMS: Go ahead.

SEKULOW: Here is where I disagree with Arthur on this. And I'll tell you why.

The federal courts -- a statute was passed by Congress. You may not like the statute, but that was statute that was passed by Congress. It required a de novo review, which was a full review. And it never happened here. You couldn't have possibly had a de novo review in an hour and 30 minutes, which is what the oral argument was in this case.

ABRAMS: But that's the debate. All the judges, except for two, didn't agree with that analysis.

(CROSSTALK)

SEKULOW: Absolutely. It was the minority view, no doubt about it.

ABRAMS: Right.

SEKULOW: But I think what it does show here...

(CROSSTALK)

MILLER: And one very, very conservative judge on the 11th Circuit said the statute was basically unconstitutional.

ABRAMS: Right. But let's not just talk about the statute. I want to just talk about the way judges are being perceived now.

SEKULOW: Yes. I think that's the issue here. And what does this mean for the judicial nomination process?

ABRAMS: Yes.

SEKULOW: And here's what I think it means.

I think, No. 1 -- and I think Professor Miller would agree with me on this. No. 1, Americans are tuned to, judges matter, because no matter where you came down on this issue, it was the judges. President could pass an act. It could be signed by the president of the United States. But who decided whether it was going to be enforced or how it was going to enforced? Federal court judges. So, No. 1, the American people have seen, look, judges make a difference.

No. 2, labels don't really count. Saying a judge, as Arthur just pointed out, is conservative, came out on the other side of this case. Then a judge that's more liberal-leaning came out in favor of Terri Schiavo's side of the case.

So, what does it tell you? Well, it's not simply conservative- liberal, but it really is judicial philosophy. Now, some of that you don't know until they're on the bench. But I think it does point out to the American people the importance of judges and the role that judges play in everyday -- not to belittle this. This was a very significant event, obviously, for the families.

MILLER: It would be a staggering mistake, although I know politically there'll be pressure for this. You could see it in the signs, in the demonstrations around the hospice.

It would be a staggering mistake to start appointing judges or rejecting perfectly qualified people because of how they might have voted on the Terri Schiavo...

(CROSSTALK)

SEKULOW: Well, it's interesting you say that, because right now there are judges being filibustered for one reason and one reason only, their view on an issue like abortion. And the is going on right now today in the United States Congress in the Senate. So, these issues do matter.

(CROSSTALK)

ABRAMS: All right, let me take a quick break here. Professor Miller and Jay Sekulow are coming right back.

More. Look, this is a huge issue. And I got to tell you, I think this Terri Schiavo case is going to be brought up again and again when we're talking about judges. More in a minute.

(BEGIN VIDEO CLIP)

RANDALL TERRY, SPOKESMAN FOR PARENTS OF TERRI SCHIAVO: And then you had the federal judiciary thumbing its nose at the law passed by Congress, so the issue of the imperial judiciary is front and center in my mind and reining them in.

(END VIDEO CLIP)

ABRAMS: Schindler family spokesman talking today on this program earlier about the fact that Terri Schiavo has now died, and he seems to think that the problem is all about the judges.

Professor Arthur Miller, it sounds to me like the people who want change as a result of this case don't like our system of checks and balances. They don't like the fact that the court's job is to evaluate the constitutionality of congressional statutes, et cetera.

MILLER: I think that's right.

A lot of what is being said is either demagoguery or scapegoatism, or simply reflects a failure to understand how carefully crafted our system of government is, of checks and balances, between and among the president, the Congress, the federal courts, and then between the federal system and the state system.

We are, after all, a federalism. And I think this is a great opportunity for a civics lesson, but I am afraid that the rhetoric is drowning logic and rationality out.

ABRAMS: Jay, isn't that true?

SEKULOW: Well, I think -- look, has this been a civic lesson? I don't think people understand understood the checks and balances and coequal branches of government three weeks ago like they do now.

(CROSSTALK)

ABRAMS: But it doesn't sound like Randall Terry understands it either.

SEKULOW: Well, look, there's a difference between an activist who is speaking out as someone that is down on the field playing the role of activist.

Those of us that are lawyers are having to deal with the legal system. And when you're dealing with the legal system, look, no lawyer -- like, you had David Gibbs on earlier. No lawyer likes the fact that the courts rule against them. I thought David did everything he could to represent his client.

(CROSSTALK)

SEKULOW: I think that's the right thing to do.

But I think, when you look at the end of the day, you are going to learn that federal judges and state judges, for that matter, really do matter. And the impact -- that's kind of been the unknown coequal branch of government, because you see the presidency. And you really do see the legislative action, but you don't see the judges.

Some state courts allow television, but the federal courts certainly don't. And that's one thing that you have seen. The rhetoric will subside, and the lesson of this will be -- I think really will be who serves on the bench really makes a difference, because it impacts everybody's individual lives.

ABRAMS: Right. And I hope the lesson is that the legal system worked in this particular case, even if you disagree with the law, even if you disagree with the outcome.

SEKULOW: Still the best system in the world.

ABRAMS: The bottom line, the legal system worked in this case.

Professor Miller and Jay Sekulow, I got to wrap it up. Thanks. Appreciate it.

SEKULOW: Thanks, Dan.

MILLER: Thanks.