Judge Weighs Reinserting Schiavo Feeding Tube

JIM LEHRER:

Now, the legal debate over the role of Congress and the courts in the Schiavo case. Jay Sekulow is the chief counsel for the American Center for Law and Justice, which supports restoring Schiavo's feeding tube. His group filed an amicus brief today in the US District Court in Tampa, which is hearing the case. And Laurence Tribe, he is a professor of constitutional law at Harvard Law School.

Professor Tribe, first of all, were Congress and the president within their rights to make this a federal case today?

LAURENCE TRIBE:

I don't think so, Jim. I think that Congress would have the power to pass a general law after studying, as it says it intends to, the situation around the country to see of the thousands of tragic cases like this in which families are torn asunder about what should happen.

Which of those cases should go to federal court? When is it enough for the state courts to rule? But to pluck this one case out of the universe and to say of this case, as the president did, it's a complex case. Sure, it is. There are thousands of them.

But what is it about this case that makes it fair to the parties involved – and one can never tell which of them is more hurt or which of them is more helped — to create an entirely unique legal regime for them — the same substantive law supposedly.

But unlike everybody else in the history of the country and apparently everybody in the future because the law says it shall not serve as a precedent.

They get to turn back the clock, go to an earlier time and hold completely new evidentiary hearings as though these years of litigation hadn't occurred. Doing this special thing is arbitrary power, not really law, and it violates the due process clause as well as the separation of powers.

JIM LEHRER:

Mr. Sekulow, you take a different view of this.

JAY SEKULOW:

I sure do. And, Jim, let me just say first of all there's an interest here that people tend to ignore and Professor Tribe kind of glanced over it also. And that is the interest of Terri Schiavo.

You know, when you're on death row and subject to capital punishment, which is of course the taking of your life, you could exhaust all the systems within the state court systems and then you still are entitled to what's called de novo or complete review by the federal system.

That's what the Congress did here. They passed a bill for Terri Schiavo, yes. They could not get agreement on a general piece of legislation, but Congress has the authority to set jurisdictions under Article 3.

They can do that. I believe that they have the right to do that. I think the courts are probably going to come out with this issue. I think the issue that is going to come up here is not going to just be whether Congress had the authority– I think they clearly did– but whether the parents can meet the threshold of saying that they should be able to get the injunction, that is the tube reinstated because of irreparable injury.

And clearly, you know, the Supreme Court opinion a number of years ago, in the dissent of the Frizane case, a similar type of situation, the court said that, "you know, injunctions can be reversed but court orders cannot resurrect people from the dead."

And every hour that's ticking by and every moment that ticks by in this case is closer and closer to Terri's demise. And I what the judge needs to do here is rule, rule quickly, rule promptly, so that we can then get the case up to the US Court of appeals for the 11th Circuit.

We represent Congressman Weld on the case. He drafted the legislation so obviously our view is this is constitutional.

JIM LEHRER:

But to follow-up, to Professor Tribe's point, Mr. Sekulow, why this case, why this individual case, why not the thousands before and the thousands that will come after?

JAY SEKULOW:

You know, there hasn't been thousands before and thousands different, because generally there's family agreement. There's been a different kind of process involved. There may be a living will. None of that is here. And I think what the president said this morning when he signed the bill and the statement that he released said in these kinds of cases, difficult cases you have to be cautious and you have to side on life.

So this is one of those unique exceptions to general rules where it's literally a life-and-death decision hanging in the balance here. And you make the cautious decision and you side with life. And let the federal courts take a look at this.

It's not mandating a decision. That's where Professor Tribe is wrong. This isn't Congress coming and saying you must hold this. It simply is a granting of jurisdiction. Congress has that authority.

JIM LEHRER:

What about that, Professor Tribe? The Congress didn't tell the judge what to rule, only to review the case.

LAURENCE TRIBE:

Yes, Congress only said that in this one case, and it is one case out of many where families are in disagreement and where there are tragic circumstances, I know of hundreds in my study of the situation– that in this one case, there shall be a completely new review.

Now in the law of habeas corpus that Jay Sekulow talks about of people on death row, it is not true and it is certainly not true, it wasn't even true in the heyday of the Warren era that you don't defer to the state courts and you automatically get a fresh and new look.

There are some circumstances where you do, but that's pursuant to a general law that applies to everyone. Way back in 1884 the US Supreme Court said that law has to be a general rule that particular decrees that give a different legal regime for someone, whether they come from a personal monarch or an impersonal multitude is just will dressed up as law.

And of course the interests of Terri Schiavo are crucial here, but those interests exist on both sides. The thumb was put on the scale on the side of life in the Florida procedures. That's why they required clear and convincing evidence that she would have wanted to be allowed to die and not have further surgical intrusion.

What Mr. Sekulow apparently wants is for this one case to be one in which even though the thumb was put on the side of life that she be put through the surgical procedure, which can't be undone — you can pull the tube out but surgery is surgery — to be put through the surgical procedure.

And, yes, in balance, death is more final than surgery. But the judge has said quite rightly in the hearing that he cannot grant an injunction and effectively decide that her right not to be further tormented as an object example, that that right doesn't count unless he decides that probably they will prevail on the merits, the Schindlers, her parents.

And that will depend on whether Congress really does have the power for the first time in American history not simply to grant little favors to companies but to set up a whole new legal regime invading and intruding the decision-making of one family and one state proceeding. JIM LEHRER: And you, Mr. Sekulow, you believe that the Congress does have the right to do this.

JAY SEKULOW:

I clearly think so and —

JIM LEHRER:

Have they ever done it before?

JAY SEKULOW:

They have done it; not in the context of a life-and-death decision like this, but they have had special legislation. You heard about them; Professor Tribe just talked about them in the context of there's been legislation passed on economic issues that affect one company or a series of companies within a sphere.

Here what happened was, to penalize Terri Schiavo because Congress could not come to a more substantial or more aggressive approach to this is really the tragedy here. It's Terri Schiavo's life that is subject to death by starvation, something that you cannot do to someone by the way on death row. In fact, in Florida you couldn't do that to an animal.

JIM LEHRER:

Mr. Sekulow, let me ask you this: What do you think now that the federal court system can do in reviewing this case that the state courts over seven years have not already done in Florida?

JAY SEKULOW:

Well I think it's exactly the reason why you get federal reviews. You can sometimes exercise state claims and still have subject to review not only in capital cases but in civil rights cases.

You know, the state courts weren't very perceptive to the needs of black citizens in this country in the 1950s and '60s so the federal government stepped in and ultimately when the Supreme Court ruled had to pass a Civil Rights Act.

Why do you think the disability groups around the America from a broad cross spectrum really of ideological positions are backing Terri Schiavo here — her family's position of at least maintaining the status quo while this is all looked at? And that's because there's really a denial of civil rights here. It's the ultimate civil right, the right to life.

JIM LEHRER:

Professor Tribe, let me ask you, what's the harm? What's the harm to come from letting the federal court system look at this case?

LAURENCE TRIBE:

The harm is a harm to all of us and a threat to all of us. I understand the human pull of seeing Terri Schiavo look like she's reacting to people on television. I understand and I have often argued for the cause of the disabled.

But people on either side of this issue who are saying, "this is about life" or "it's about the poor incapacitated woman" forget that the extraordinary power of Congress to reach its kind of bony arm and grab one family and say, you know, "without any finding that there has not been a fair determination of rights, we're just going to put you on a federal platform and make a kind of show trial out of you."

It may be emotionally satisfying to think that we're doing a favor to this young woman who, if the Florida courts were right, would desperately want to be allowed now to die.

But even if you think you're doing her a favor, this is a power, this is a knife that cuts both ways; the knife of arbitrary power that cuts through the rule of law and says, "hey, this is an interesting case. We'll pluck it out and set up a completely different regime for it."

That is a power that no democracy can tolerate.

JIM LEHRER:

Mr. Sekulow.

JAY SEKULOW:

Emergency circumstances dictate important results. We're not talking about some economic regulation case here. We're talking about literally, you know, the moments that we're sitting here talking with you, Jim, she's being starved to death. No matter what you say and Professor Tribe I think would be the first to admit….

LAURENCE TRIBE:

What about the other people?

JIM LEHRER:

All right. We have to move on here, but I want to make sure and see if I can get the two of you to agree on the process at least from this point on. This district judge who has taken this under advisement, he said no decision today.

He's going to come up with one. Assume any decision that he makes on either side is going to be appealed. Now that would go to what? The 11th Circuit Court of Appeals?

JAY SEKULOW:

The 11th Circuit Court of Appeals — both sides are ready to file those briefs. We're ready to file that.

LAURENCE TRIBE:

But it could leap frog.

JAY SEKULOW:

And then it could go to the circuit justice. Justice Kennedy. It's going to have to move very quickly.

JIM LEHRER:

Circuit Justice meaning a member of the US Supreme Court who hears cases quickly for the 11th Circuit, right?

JAY SEKULOW:

It would be Justice Kennedy, correct.

JIM LEHRER:

Then, Laurence Tribe, it then goes, whatever he rules, one side is not going to like that, so then it goes to the full court, is that right?

LAURENCE TRIBE:

It's a little simpler really. His role may be to grant some emergency temporary relief, but in this case there's also a procedure called certiorari before judgment in which rather than waiting for the circuit court to rule at all one simply files a petition in the United States Supreme Court and says, as Mr. Sekulow has said, "this is very urgent; we have to have it decided" and the US Supreme Court could decide.

But you know federal courts have already several times looked at this and rebuffed the argument that there's anything fundamentally wrong. The Supreme Court has denied certiorari three times.

JAY SEKULOW:

That was primarily on federal standing issues, whether the parents had a claim; now they have a cause of action.

JAY SEKULOW:

It's more complicated than that.

JIM LEHRER:

It's possible that let's say this judge rules in the next 24 hours that the whole circuit court process could be circumvented, could hop right to the Supreme Court.

JAY SEKULOW:

That's right. Professor Tribe handled one of the fastest cases in Supreme Court history and did a good job for his client, Vice President Gore – and that case went, I think, Professor Tribe, in four days from beginning to end.

This case doesn't have four days. That's the problem. In my view, the parents' lawyer should be filing and it probably will be shortly if you don't get a decision in the next hour or two maybe three, you've got to be requesting a quick response and get right to the 11th Circuit and maybe do what Professor Tribe said take it right up to the Supreme Court.

JIM LEHRER:

Would you agree, Professor Tribe, even though you come down on the wrong side that if the —

LAURENCE TRIBE:

On the wrong side? I don't that it's the wrong side —

JIM LEHRER:

I mean… I don't mean the wrong side.

LAURENCE TRIBE:

I understand.

JIM LEHRER:

I mean the other side. If you come down on the other side of this decision, if it goes for… never mind. Anyhow – however this thing turns out –

LAURENCE TRIBE:

It should be fast. I agree it should be done quickly.

JIM LEHRER:

Should it be done fast that's what I'm saying.

LAURENCE TRIBE:

I think it should be done fast. I do not agree that what should be done in the meantime is to force this woman to undergo surgery just to enable this thing to be slowed down because that involved a serious harm.

JAY SEKULOW:

Professor Tribe.

JIM LEHRER:

Hold on, Mr. Sekulow. Let him finish.

LAURENCE TRIBE:

It's important to recognize that if the probability is that when the court finally decides the case it will decide that there is no constitutional power in Congress to create a totally special law for one family, this is not just helping a company.

If it decides that, then having forced her to undergo surgery will have been a big mistake, so the basic question should be, quickly, did Congress violate the Constitution? That's what is being briefed tonight.

JIM LEHRER:

Would you agree?

JAY SEKULOW:

She's fed by a tube through a port. That port hopefully is in place. If not, it's easily inserted. And if Professor Tribe's theory is correct that she doesn't have much cognitive ability, then I still say putting her through surgery is certainly better than being starved to death.

JIM LEHRER:

All right. Gentlemen, thank you both very much.

LAURENCE TRIBE:

Thank you, Jim.