March 23, 2005

SEAN HANNITY, HOST: It pretty much comes down to this. Governor Bush, at about 3:00 eastern this afternoon, came out and held a press conference, said there is new information in this case that has been learned by the Department of Children and Family, that there has now been a motion to intervene by the DCF, that new information has become available, after an examination by Dr. William Cheshire, and some video he has seen. He is a renowned neurologist. They believe that Terri Schiavo may very well have been misdiagnosed, that she is not in a permanent vegetative state, that in fact she is in a state of minimal consciousness--which changes the status and protections that the laws of Florida would provide for her.

The governor said we should err on the side of protecting her, and grant her the same rights that criminals take for granted, as it pertains to review, and et cetera.

Now, I want to go back to this tape, Greg. The governor was asked whether or not he has the authority to take custody of Terri Schiavo. The answer is, he believes that he does have statutory authority. Here's how that exchange went.

[clip]

REPORTER: . . . include the ability to take physical custody of Terri Schiavo.

GOVERNOR JEB BUSH: Counselor. To take physical custody?

REPORTER: Yeah. Do you think your authority would allow you to take her into yours or DCF's custody?

GOV. BUSH: There's a . . . that's a . . . I want to make sure that we're carefully saying exactly what the authority is.

UNIDENTIFIED ATTORNEY FOR JEB BUSH: Under section 415.1051, which is for emergency protective services of vulnerable adults, DCF could take protective custody of Mrs. Schiavo.

[end clip]

HANNITY: There you have it. So, the question is, why would the governor say this just before the [state] senate vote? If you want my take on it, he probably knew they didn't have the votes in the senate, and this gives him an option and an opportunity to do what the federal courts weren't able to do--the Congress, the President, the Senate weren't able to do, the state legislature wasn't able to do--and it gives him one last opportunity to step in and save her life.

[technical difficulties]

HANNITY: Ambassador Keyes, how are you?

ALAN KEYES: I'm fine. How are you?

HANNITY: Can you believe--I've never seen a family have worse luck than this family, and I've never seen such arrogance in our court system in my entire life.

KEYES: Well, I think the arrogance of the courts has become pretty normal now--and the main reason is because we've allowed certain powers, including the power of judicial review, to go unchecked. I mean, we are dealing with a branch of government that feels that there is no force in the government, whether at the state or the federal level, that can control them. And they can do what they please, because they have the power to strike down laws and to tell the executive, and everybody else, what to do.

This is wrong, of course, and it's destroying the integrity of our system of constitutional self-government.

In this particular case, I think it's quite clear that Jeb Bush has the authority to defend the integrity of the Florida constitution. Not only that, he has the obligation to do so. He has sworn to do so.

Under Article I, Section 2, of the Florida constitution, Terri Schiavo has a right to life, and to defend her life. And the governor, at any point, has the right to intervene.

Let me give you an example, Sean. If there were a lynching taking place across the street from the statehouse, and some racist state judge had ordered that somebody should be lynched, would anybody dispute the notion that the governor had the right to stop that, and protect the life of that individual, despite the involvement of the court? Nobody would dispute it.

Neither the judiciary, nor anybody else, has the simple right to fly in the face of the Constitution. The same argument that gives the judiciary the right to review the acts of the legislature forces the executive to look at the consequences of judicial decision-making, in light of the requirements of the Constitution and his own oath. And if he fails to act, he is failing to do his duty.

HANNITY: Well, I get the impression--and tell me if you think you agree with this analysis. I mean, especially after last weekend, with the extraordinary efforts that were taken by the House and the Senate, and the President flying back early, and the idea that--I thought all of us, although I had my suspicions all throughout that week and all last weekend. And one of the first things I said on Monday is, "You better not count on this. There's no guarantee that even though the Congress and the President did this, it doesn't mean a judge won't ignore this de novo, or new look, at this case, or look at the facts of this case," and lo and behold, that has in fact happened.

KEYES: Right.

HANNITY: And I'm not confident the Supreme Court will go anywhere near this. Are you?

KEYES: I'm not, either. But as I say, my argument throughout this over the last several weeks has really not put much faith in the possibility that you will get the judiciary to limit its own power, and that they will step in, in such a way as to suggest that it is possible and necessary for the other branches to review abuses that are taking place in the courts.

They basically have been making an argument from some years that they are, in a sense, the makers of the law, and above the law, and that once they speak, nobody gets to do anything. And this is one of the things that produces this ruthless situation, and has people acting like they're helpless because once the court acts, nothing can be done. That's not true.

I just did a very clear article, which I think we are hoping to get up on one of the major internet sites shortly, so everybody can read it, making the case based on clear constitutional principle, back to the Federalist Papers, that this is not the case. In point of fact, just as the argument holds that when a judge makes a decision, he has to look at the Constitution, look at the law, if there is an inconsistency between the two, he has to follow the Constitution.

I ask you, if the executive looks at an action by the judiciary, compares it to the requirements of the Florida constitution in this case, and finds the judiciary wanting, is the executive obliged by his oath to accept that and allow the Constitution to be harmed? Or is he obliged by his oath to defend and protect the integrity of the Constitution? I think the answer is clear.

HANNITY: The answer is clear.

Do you believe that the governor set it up this way, that he probably had an inkling that the [state] senate wasn't going to vote the way he wanted, and he needed to put into place an avenue whereby he could step in now?

KEYES: Well, I hope so. I just hope, however, that they don't wait too long, because we are obviously dealing with a case of life and death here.

One of the reasons, under the American system, we give executive power to a single executive--rather than to a deliberative body, or a plural executive, or some judicial-type executive (which had existed in the past)--is so that the executive can act expeditiously, and that long delay will not result in permanent and irreversible damage to the citizens or the Constitution.

HANNITY: If he's going to do it, he will probably do it between now and tonight.

I mean, I can't see him waiting much longer.

KEYES: I hope not.

HANNITY: I would assume that the reason he said all this today--because, they were planning this as a stop measure, and after the Florida senate now has rejected this bill, I think that he really doesn't have any choice. Otherwise, why would he have come forward and said he has the authority to do it, if he didn't plan on exercising that authority? Why would he say there is new evidence we've got to look at in this case, if he didn't want to set people up for what he is about to do?

KEYES: Well, I think that implicit and necessary executive power here is pretty much the same. And the argument he made about the criminal situation, and that you should give the same protections you give to criminals--well, the protection we give to criminals, when evidence comes forward that suggests that they have not received justice, is governors have the right to pardon. They have the right to overturn the whole result of a judicial process, particularly where life and death is involved, on the basis of new facts and evidence suggesting that an injustice has been done. That is a power clearly recognized as inherent in the executive.

And if you go back to the arguments made by our Founders, it's a power that results from the fact that the judiciary can't act without executive cooperation and acquiescence.

HANNITY: All right. Alan Keyes, thanks for being with us. We appreciate your time.