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Transcript: Sen. Martinez on 'FNS'

(BEGIN VIDEO CLIP)

U.S. REP. TOM DELAY, HOUSE MAJORITY LEADER: This judge in Florida wants to pull her feeding tube and let her starve for two weeks. That is barbaric.

MICHAEL SCHIAVO ATTORNEY GEORGE FELOS: They don't have the authority to issue restraining orders and injunctions and commandments. This resembles the Soviet Politburo.

(END VIDEO CLIP)

'FOX NEWS SUNDAY' HOST CHRIS WALLACE: That was the lawyer for Terry Schiavo's (search) husband and House Majority Leader Tom DeLay, part of the fierce debate over the Schiavo case. That debate continues today when the House and Senate plan to consider a bill that would move the case from state to federal court.

But should Congress be intervening in a family matter like this?

For answers, we're joined now by Senator Mel Martinez (search) of Florida, one of the leaders of the congressional effort in the Schiavo case.

Senator, welcome. Thanks for joining us today.

SEN. MEL MARTINEZ: Good to be with you.

WALLACE: As we said, Congress is meeting in a rare weekend session. The president is planning to fly back from Texas to sign a bill.

Why is the federal government taking such extraordinary steps to intervene in the Schiavo case?

MARTINEZ: Well, the judge in Florida has, in effect, issued what is -- in effect -- a death warrant, and so any time that someone's life is to be taken and there's state intervention, it's appropriate that the Fourteenth Amendment (search) step in. It's appropriate that the federal courts review the matter, as we've done in death penalty (search) cases for years.

And so all we're doing is seeking a federal review of what has happened in the state courts to ensure that all constitutional rights, all of the basic protections that we afford a criminal, have been afforded to Terry Schiavo as well. And the federal judge in the middle district of Florida is the right place to do that.

WALLACE: I want to get to a couple of those states' rights arguments in a moment.

But do you have an agreement in the senate to pass this on a voice vote or are all the senators or a majority going to have to come back?

MARTINEZ: No, fortunately we've agreed on a voice vote. And we've had great cooperation from members of the Senate on both sides of the aisle to agree to do it by voice vote. And so we're prepared to do that today or in the early hours of tomorrow.

WALLACE: Now, there's no guarantee that if this case goes to federal court that a federal judge will decide to keep Terry Schiavo alive or even require that the feeding tube be restored in the short term.

If not, should Congress intervene again?

MARTINEZ: Well, I believe what we're doing now will have the effect of conferring jurisdiction on the federal court. And then the federal judge, I think in the exercise of discretion, it would be irresponsible not to keep the patient alive until they can make an ultimate decision.

So it is clearly implied in the statute and the law we're passing that it would be upon the judge to keep her alive while the legal issues are decided.

WALLACE: There has been a great deal -- I don't have to tell you -- a great deal of criticism about Congress intervening in the Schiavo case, even from conservatives.

Take a look, if you will, sir. Law professor Charles Freeh, the solicitor general in the Reagan administration, says, "It's simply outrageous. It's abusive and disgraceful. Even a senator has an obligation to use his power honestly and not to engage in subterfuge and pretense."

And conservative constitutional scholar Bruce Fein says, "This is the epitome of grandstanding and irresponsible use of federal power. It's a disgrace to any conservative."

Senator Martinez, how do you answer your own fellow conservatives?

MARTINEZ: Well, let me tell you, first of all, that being one of the newer members of the senate, I'm following in the footsteps of many other senators who have been here have a great deal of experience, who are very involved and very much participating in this case.

I've seen a rare bipartisan support that's come together on this matter. Senator Harkin, who's very concerned about the rights of the disabled, coming together with those of us on the more conservative side of the aisle -- I think that this has been a rare moment of the coalescing of interests, of a coming together to save a life or at least to ensure a judicial review that would tend to give us all comfort at a time when we know that she is powerless and completely helpless.

So I would strongly disagree with that.

I think that it is asking for the Fourteenth Amendment to be utilized in a new and different way. But nonetheless, it's utilizing the Fourteenth Amendment, which has been a longtime part of our constitution.

WALLACE: Let's talk about the states' rights (search) issues, because family matters have traditionally been a matter for the states.

On what grounds do you feel that it's right to interfere with a state's rights and move it into federal court?

MARTINEZ: It's a rare moment when you see in a family matter a judge in a state court, a state judge issue an order which in effect is a death warrant. This order says that she shall be withdrawn, the feeding tube, until she is dead. That's a death sentence.

And so, Chris, I think it's perfectly appropriate that the Fourteenth Amendment trigger, just as it did in the civil rights struggles. This is a struggle for a new dependent person, which is a disabled person.

And so I think it's an important moment for a constitutional country and a country of laws that we are. If ultimately the federal judges were to decide that this should be the outcome, I think at some point we have to understand that this is a judicial decision, not a legislative decision.

WALLACE: Some people say that -- legal scholars -- that in fact that the reference to the Fourteenth Amendment is not right, because this is not a state action. This is simply -- the state is not going to be putting Terri Schiavo to death; it's the decision by the husband. This is not a state action. All they're doing is saying it's up to the husband to decide.

And in addition, on the question of states' rights, in 1996 Congress barred or imposed barriers for inmates who wanted to have their cases heard in federal courts. The argument was that you should basically defer to the state courts.

So why -- and that was in fact in the case of death row inmates -- so why -- this seems to be reversing that.

MARTINEZ: Well, let me...

WALLACE: The movement has been away from intervening in state courts.

MARTINEZ: Let me take the issue back to the initial part, which is the state court action. The state court -- it is, in fact, an order not just saying, "Let the husband's wishes be whatever they will," it is saying that she shall have the tube removed and it shall be removed until she is dead.

That really is an order demanding, the judge is inserting himself into the decision-making and saying: It is my decision that she shall die.

And I think, any time that occurs, it's very appropriate that we use the ultimate measure of review, that we do the same thing that we would do for someone who may be a convicted killer. But yet we say, you know, it's better -- we can't take that back once a person is put to death. So let's make sure that every constitutional protection, that due process has been observed.

Has she had appropriate counsel? Has she been represented? Many would argue that she's not had either effective or, in fact, representation...

WALLACE: The case has been in the courts for eight years.

MARTINEZ: Sure.

WALLACE: And her family has -- her mother and father have had lawyers.

You're saying that they were not appropriate counsel?

MARTINEZ: What I'm saying is that Terri Schiavo has not had lawyers, that she should be represented herself. She's had a guardian ad litem, who was not a lawyer. The judge himself acted as a guardian ad litem at one point, which means that he was in a dual role as judge and guardian.

And I believe that the adequacy of representation -- I'm not going to judge it, but I'm sure going to be glad that a federal judge is going to take a good look at this case, look at the factual setting, and make sure that all has been protected, all has been observed.

WALLACE: Some Democrats say that this is all politics, that you're just trying to score points with the right-to-life movement.

MARTINEZ: Nothing could be further from the truth. We've had great cooperation from many, many Democrats and Republicans -- coming together. I've mentioned Senator Harkin. Senator Reid has worked with us. Senator Nelson of Florida has been participating.

I think that this has really been a coming together of people on both sides of the aisle in a rare show of bipartisanship.

WALLACE: Senator, how do you explain, then, these talking points, which have been circulated among Republican senators? And let's put them up on the screen, so our viewers can see them.

Among the talking points: This is an important moral issue and the pro-life base will be excited.

And this is another one of the Republican talking points: This is a great political issue, because Senator Nelson of Florida -- who's a Democrat up for reelection next year -- has already refused to become a co-sponsor. And this is a tough issue for Democrats.

Senator Martinez, these talking points sure look political.

MARTINEZ: And I reject those. I've never seen them before today. And I'll tell you, they're not a part of what I think this case is about.

Most of all, I want to tell you that I've been impressed by the bipartisan nature of the cooperation. This is not a political issue. This is an issue about saving a life.

And, you know, you had a rare moment here where traditional Christian conservatives and the social conservatives have come together with people representing the disabled community. And those two forces have coalesced here to do something good.

And I just don't think it's politics. I think it is really something of the highest order, trying to save a life and trying to ensure constitutional protections.

Chris, our country has been one built on laws. I'm glad to put it in the judiciary and let the federal courts take one last look at this case.

WALLACE: Senator Martinez, thank you very much for coming in and bringing us the latest in what clearly is a difficult issue.

MARTINEZ: Thanks.

WALLACE: Thanks so much.