March 8, 2005

JIM BOHANNON, HOST: The Terri Schiavo saga continues. Carrie Kirkland reports the parents of the brain damaged woman has won some motions and lost others this week in a Pinellas County Florida court. This of course regarding the woman who has had a Florida judge giving her husband permission to remove her feeding tube after three weeks. Here is Carrie Kirkland.

CARRIE KIRKLAND: In Pinellas County, Circuit Judge George Greer has decided that Bob and Mary Schindler will not be allowed to give Terri any food or water once her feeding tube is removed a week from Friday. The Schindlers also lost the fight to have Terri die in their home rather than the hospice. But they won the right to take final photos and videos of their daughter. Also, Terri will be allowed to receive last rites from a Catholic priest before she passes. The Schindlers claim seventeen doctors believe that she is not in a Persistent Vegetative State, and it is against the law to starve a conscious person.

In a related story, as Florida lawmakers start the 2005 legislative session this week, they are expected to create some sort of end-of-life legislation in light of the Terri Schiavo case.

Carrie Kirkland, reporting.

BOHANNON: We are joined now by a former presidential and senatorial candidate, and also one of the U.S. representatives to the United Nations during the Reagan administration, Alan Keyes. Dr. Keyes, good evening.

ALAN KEYES: Good evening. How are you?

BOHANNON: Very fine, thank you. Your thoughts regarding this case, and in fact I guess thoughts that go beyond just this particular case?

KEYES: Well, I think it is a very disturbing situation. You have someone who is essentially being done to death, as a result of the civil proceeding in which we see a result--which is to say, basically, a very painful execution. Do you realize we couldn't even see someone who was convicted of the most heinous and brutal murder sentenced to die in the fashion that this judge has now prescribed for Terri Schindler-Schiavo?

And so, it is a cruel and unusual death that is being prescribed by a court. We have a state in which both the governor and the legislature think that this is a violation of her fundamental rights, and yet we are in a situation where the judiciary--in this case, Judge Greer--can presume to suggest that his judgment is the only one that is to be brought into play as to whether this person lives or dies.

That is not the case, by the way, even in criminal procedures. As you know, the governors can set aside judicial results, if they feel that a travesty has been done, or that an injustice has been done. And I think the same is true right now.

What I find most interesting is the court argued, when they were going against the state legislature, that separation of powers was a critical concept for our constitutional system. Well, it is. And the separation of powers means that the executive does not have to follow the judgment of the judges, but has his own separate responsibility to the Constitution and the law, and if he conscientiously believes that an injustice, a violation of fundamental constitutional law and right is taking place, he has an obligation not to acquiesce in it. And that is what I think is the case here.

BOHANNON: The governor has, for example, a power to pardon, but other than maybe some implied power, are there explicit powers that a governor has in a case like this that supersede that of a judge?

KEYES: Well, the judge has no executive power. We all forget that, don't we?

It is very clear in the Federalist Papers. In Federalist 78, they state very clearly that the judiciary has neither the power of the sword nor of the purse, and does not, therefore, have any force whatsoever. It is just an opinion. And therefore, when it comes to actually carrying out that opinion, a concurrence is required from the executive, or no enforcement takes place.

This concept of separation, fundamental to our system, is the one that I think is most extraordinarily at play here, because the governor is being asked to sit on his hands, while an absolute contravention of constitutional law and justice takes place, even though he has sworn an oath to uphold the Constitution, both of Florida and the United States. This, I think, is totally contrary to his oath. He has, in fact, an executive obligation--just as he would if someone were being done to death outside the statehouse. He couldn't sit there and watch it.

BOHANNON: Are you saying that in any case in which a judicial decision is rendered, that the executive at that particular jurisdiction has the inherent right to veto the judicial ruling? Like for example, let's say a judge in Missouri sentences somebody to so many years in prison for fraud, that the governor could just step in and say, "I don't think so"?

KEYES: Of course the governor has that power in every state in the union, but what we forget is . . .

BOHANNON: Well, as a pardon, yes. But beyond that . . .

[crosstalk]

BOHANNON: I guess what I'm trying to get across is, does he have the power to, for example, simply change a verdict? Or is it something that goes beyond the pardoning power?

KEYES: This has nothing to do with the verdict, or the court opinion, or anything else. It has to do with the executive's power and responsibility, which the judge has none of. We say there is a separation of power. If you have to obey my judgment, and do what I tell you, and follow my will and my judgment, are you a separate power from me? Of course you are not. You are an extension of my power. Therefore, for separation of power to exist, the executive must have a separate will and an independent judgment from the judiciary.

BOHANNON: Other than the pardoning power, itself, I guess I'm unaware of an example in which an executive, on a regular basis, in fact does so intervene. Have I missed these, or are there . . . ?

KEYES: No, I think that we were talking about something that doesn't occur, except in an extraordinary way, because usually the judiciary doesn't overstep its bounds. But when it does so, in the view of the present--take Andrew Jackson, back in the 19th century. The Supreme Court issued a judgment about the national bank, and he looked at them and he said, "Well, the court has made its judgment, let them enforce it."

And what he was reminding people of is that the courts have no enforcement power, and they must rely upon the cooperation of an independent branch, in order for their opinions to have effect.

We must remember this now, because it means that all three branches have a concurrent responsibility to the Constitution, and by their oath, especially the executive by his oath, has an individual and personal responsibility to follow the Constitution and the law--not the dictates of judges which he believes go contrary to the Constitution and the law.

BOHANNON: Let me ask you this. When the courts rule that Richard Nixon had to reveal the Watergate tapes, in your view, would it have been a constitutional response from Nixon to say, "Stick it. I'm not revealing anything"?

KEYES: He would have that prerogative as the executive. Of course. But what he is calculating in that case--and this is the way the system of checks and balances is supposed to work--the executive is independent. If he feels the judges have not been following the Constitution or the law, he does not have to put his judgment and oath in pawn to their judgment, when they violate the Constitution.

He is also responsible, though, to the legislature. And if the Congress in that case believed that Richard Nixon had violated [the law]--which they probably would have, in that case--they could do what they certainly had the right to do, which is impeach and remove him.

The checks do not consist in automatic obedience of the branches to the other branches. The checks consist in the ability of a separate branch to govern your actions, by cooperating or not cooperating. And right now, we have created a dangerous situation, where the judges are acting as if nobody gets to check them--and yet, somebody does, under our Constitution.

BOHANNON: If I am correct, then, in other words, when I asked for an example, it was hard to come up with one just by virtue of the fact that, in your view, correct me if I'm wrong, we are not following the constitutional process--not just in the Terri Schiavo case, but in a lot of cases. Would that be true in general?

KEYES: I gave an example.

BOHANNON: Well, OK, you gave one example, but I guess my point is that, would it be safe to say that you believe that in most instances, executives do not exert the authority they should?

KEYES: No, what the executive has the responsibility to do, Jim, is to follow the law and the Constitution. What people have been trying to argue is that that means that you must automatically follow the judge's ruling--but not if the executive believes the judge's ruling goes against the law and the Constitution.

Think of it. Logically speaking, how could I conscientiously follow my oath as an executive if I follow the judgment of somebody who is doing or asking me to do what I believe violates that oath? I have a personal responsibility in the executive position. And that is where I think we need to look at our executives and say, "Wait a minute. You are not doing your job."

BOHANNON: OK, let me phrase it this way: in your view, do executives in general exercise this authority enough?

KEYES: No. Actually, I think in recent years, both the executive and the legislative branch have been acting as if the judges are in fact the supreme branch of government. And that is very dangerous. [The judges] are turning into dictators, basically, and they have been taking over in areas that have nothing to do with their responsibility, making law and substituting their will, including administration, for that of the executive. And that, as the founders warned us, means that we are allowing the consolidation of all the powers of government under one branch, which in this case is the judiciary, and they said very clearly, repeatedly, in letters, in the Federalist Papers, everywhere, that that consolidation of power was tyranny, and it resulted in an end of liberty.

BOHANNON: Here's a call from Ed in Moses Lake, Washington. Ed, good evening.

ED: Good evening. I agree with everything that he said. The one thing that I do have a lot of trouble is, what crime did this person commit, to be willfully condemned to death? That would be the law portion of it. At what point did she commit any crime that would allow someone to put her to death?

KEYES: Well, see, she didn't. The interesting thing about this--and people talk about it in this very confused way, like she is on life support, and there is some extraordinary medical procedure involved in keeping her alive, and she had left a living will or something that said she did not want that done. That is not true. They have been relying on the husband's report of a casual remark she had made, which, by the way, was confuted by testimony by her friends, and so forth, in terms of what it really meant.

But they also are applying the notion that we are dealing with extraordinary medical procedures to the simple act of feeding someone. And I find this to be one of the most dangerous things I can think of. We are now going to define feeding someone as an extraordinary medical procedure? So that would mean that if I am a parent, and I put my child in the closet and don't feed them for weeks, and they die--as has happened, we all know--that we would regard that as a natural process of death, instead of as murder?

This is really introducing us to ideas that are extraordinarily dangerous, and point, in the end, to vulnerability for senior citizens, for disabled people, for people across the board who might find themselves temporarily or permanently in a situation where they depend on others for help.

BOHANNON: She is described as having been in a Persistent Vegetative State for the last fifteen years. To your knowledge, Dr. Keyes, has any medical authority come forward with any likelihood that Terri Schiavo could ever again function as a normal human being?

KEYES: Oh, yes. A matter of fact, the parents have repeatedly cited such things. And in fact, right now there have been submitted affidavits by seventeen different medical experts saying that there are therapies that have worked on people--we all know the stories of people who come out of comas after twenty years, and so forth and so on. And yet, in the course of the last decade and more, her husband has done nothing. He received over a million dollars for her medical care, therapies, and so forth, and apparently, nothing has been spent in more than a decade on therapies and other things that have been developed with current techniques to try to help this woman.

So, we are dealing with a situation where he has single mindedly, within a few months after he got this money award, he single mindedly pursued her death, even though in testimony when he was getting the award, he said that he wanted to take care of her, would commit his lifetime to it, and they estimated that she would live for fifty years, and that's why they gave him the award they did.

I think that we are clearly seeing here someone who has been acting in contradiction of his own words--and the question we ought to be asking is why.

BOHANNON: Will you stay another segment with us?

KEYES: I'd be glad to.

BOHANNON: OK. Very good. We will have some more calls here for Alan Keyes, with thoughts on the Terri Schiavo case.

[break]

BOHANNON: We are talking with a former U.S. representative to the United Nations under the Reagan Administration, Alan Keyes, candidate for president and for senate, with his thoughts about the Terri Schiavo situation--the woman in Florida on the feeding tube.

And we have Mike in Albany, New York, to join us now. Good evening, Mike.

MIKE IN ALBANY: Hi, Jim. I just want you to know I really respect your show, and I love your guests for the most part, but when you have got a guest on that I would just question his morals . . .

BOHANNON: His morals?

MIKE IN ALBANY: I just feel like calling.

BOHANNON: What morals are you talking about? I mean, you may disagree with our guest, but I mean, what . . . ?

MIKE IN ALBANY: Well, you know, the pastor has a moral issue going on with his daughter right now, and he is tearing his family asunder over it, and now he is going to pontificate . . .

BOHANNON: What pastor are we talking about?

MIKE IN ALBANY: Uh, Alan Keyes. Isn't he a preacher?

BOHANNON: I was not aware that he was . . .

KEYES: No, I am not a preacher. No.

MIKE IN ALBANY: Oh, I'm sorry.

BOHANNON: No. You seem to have a case of mistaken identity, I guess, Mike. [laughs] I wonder where that was coming from.

Mike in Princeton, New Jersey. Good evening.

MIKE IN PRINCETON: Hello Jim and hello Alan.

KEYES: Hi.

MIKE IN PRINCETON: First of all, I want to say that I definitely enjoyed listening to your show in the past, Jim. Sometimes I disagreed with you and your guests. And I know of Alan Keyes, of course, and I sometimes agreed even tonight, and I sometimes disagreed with him. But I was just listening for the past few minutes, and in terms of the separation of powers argument that Alan is presenting, how does he address Marbury verses Marshall, I believe?

BOHANNON: Marbury vs. Madison.

MIKE IN PRINCETON: Madison. Thank you.

BOHANNON: Presided over by Justice Marshall.

KEYES: Marbury vs. Madison quite rightly asserts the concept of judicial review. The courts have to act according to what they believe to be the higher law, where there is a conflict between law and Constitution. So, they go with the Constitution.

That is simply a statement about what the courts have to do when they are making judgments in the particular case.

But what I would point out to the caller is, the president has to do the same thing. And when he is faced with a judge's decision that conflicts with the Constitution, he is also obliged by his oath to review that judgment in light of his responsibility to the Constitution.

So, exactly what holds true for the justices on the Supreme Court, as was argued in Marbury vs. Madison, holds true also for the executive.

MIKE IN PRINCETON: And I would have to say, from what understanding of the Schiavo case is, and the judicial process, the Florida legislature did actually pass a law, on Jeb Bush's prompting, to try to do something about this.

BOHANNON: And that was later overturned.

MIKE IN PRINCETON: Right.

KEYES: Well, see--we are in the peculiar situation, which I think we ought to find very strange, where the judges overstep their bounds. That is to say, in the opinion of both the legislature and the executive, the judge or the judiciary has overstepped its boundaries. Some are arguing that we should leave the decision as to whether the boundaries have been observed up to the judges. That would make the judiciary the judge in its own cause. And that is absurd.

It is a rule that has been commonsensical throughout the history of our legal system that you can't get a fair judgment if you are judging your own cause. And that basically means that the judgment as to whether the judiciary is acting within the boundaries of the Constitution must be made independently. And who is independent of them? The legislature and the executive.

In this case, we have a legislature that has expressed its view concretely in law, and we also have an executive that has expressed his view.

My question would be, why should the judge, who they regard as violating the fundamental constitutional rights of this woman, why should his mere opinion govern over the conscientious opinion of the other independent branches? Our system was not set up to be a tyranny of the judges. And when there is a disagreement among the branches, there is nothing automatic about kowtowing to the opinion of the judiciary.

MIKE IN PRINCETON: Alan, I would have to say that there is something about judicial review and appellate court, and on the particulars of the Schiavo case, I may actually agree with you, but . . .

BOHANNON: But it bothers you?

KEYES: Well, can I just quote . . .

BOHANNON: I'll put it this way, we're coming up on a break that doesn't move. If you want to stay into another segment . . .

KEYES: I won't be able to do that, but I would just direct the caller's attention to Federalist 78, where it is clearly stated that the judiciary has no actual force, except its own judgment.

BOHANNON: All right. Well, on that note, we will have to wrap. And again, we thank Alan Keyes for being with us here on the program.