What's Next in the Terri Schiavo Case?

This is a partial transcript of "Special Report With Brit Hume," March 21, 2005, that has been edited for clarity.

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JIM ANGLE, GUEST HOST: An extraordinary and historic sequence of events in Washington, dealing with the emotional and wrenching issues of life and death. Early this morning, Congress gave the parents of Terri Schiavo (search) recourse in the federal courts to dispute the decision of a state court, which ordered the removal of their daughter's feeding tube. And late today, a federal judge held two hours of hearings on the matter.

There are no issues more difficult constitutionally, legally, or morally than those represented in this case. To help us understand those issues is Viet Dinh, a Georgetown University Law professor and former assistant attorney general.

Thanks for joining us.

VIET DINH, FMR. ASST. ATTORNEY-GENERAL: Thank you for having me, Jim.

ANGLE: Let me ask you first, this is an extraordinary sequence of events, as we said. What do you think of the intervention by Congress in this matter to shift this from the state courts to the federal courts?

DINH: It is certainly extraordinary, but I think it was within the Congress' powers to do this. I want to analogize this to a case whereby a death penalty defendant is asking for a chance to get DNA evidence in the federal court. I don't think anybody would question Congress' ability to pass a law giving that defendant or set of defendants the ability to present evidence of actual innocence.

Here there are questions regarding irregularities in the trial process, regarding a conflict of interest with the trial judge and the like. and these are the kind of rights of due process and equal protection that the Constitution is there to protect.

ANGLE: Well, that is one of the questions here. The critics point to the fact that 19 judges have reviewed this case to one extent or another. And all came to the same conclusion. and asked what can possibly be gained from another examination of this case?

DINH: One judge has looked at the facts in this case. And the key allegation here is that he had a conflict of interest. He did not appoint a guardian as is required under Florida law but rather appointed himself as the surrogate decision maker. Therefore removing himself from impartiality.

ANGLE: So she had no advocate for herself?

DINH: For herself, for her interest, and rather that advocate — the judge put herself in the position of not only being the decision maker but also the impartial judge to review that decision.

That's the kind of irregularity that I think the Constitution speaks to. And it remains to be seen whether or not it speaks well enough for this federal judge in order to grant relief in this case.

ANGLE: Now, we had two hours of hearings this afternoon. The judge sounded pretty skeptical about this case in his remarks later — or to his remarks to the people in the courtroom. What would you expect the family and its lawyers to be arguing?

DINH: He has a right to be skeptical. Because after all, there have been successive processes here. A number of judges have looked at it. So he has the wealth of experience that comes before him. But I think the family will argue that the initial hearing before Judge Greer, upon which this entire case rests, was structurally deficient because of the conflict of interest. And so therefore, every other judge who has agreed with Judge Greer (search) defers to his judgment, has compounded error upon this initial structural defect.

ANGLE: Now, there are several issues before the federal judge. One is of course, whether or not it is constitutional for Congress to take a matter out of state courts and send it to the federal courts. And there are a lot of critics who are saying that this is, in fact, a violation of the constitutional separation of powers.

DINH: Mr. — the parents of Terri Schiavo have already filed an action in federal court asking for federal court relief. That was denied because of the statute was narrowly constructed. I think Congress here only did that which it is empowered to do to come in and revise the statutes to expand it to include this kind of circumstance.

If there is an infirmity here, it is the fact that it only happened for one individual, against one particular defendant, Michael Schiavo. And so in that case, I think that it may well be the problematic factor. But not the fact that Congress does not have the ability to do this.

ANGLE: Now, assuming the federal judge accepts that this case get to go him was, in fact, constitutional, and moves on to the facts of the case, is it possible that a federal judge would arrive at the same decision that the state judge did. And if so, what then happens?

DINH: Absolutely possible. I think actually probable given the fact that the judge expressed some deference to the process that has gone before. I think the family here is asking for a new hearing against the weight of the processes of the last five weeks.

If they do not get that, then of course they will appeal, saying that they are entitled as a matter of law to get such a hearing. And it would be appealed all the way to the Supreme Court. But it would be a very, very heavy road to travel.

ANGLE: Now, let's be clear. The congressional action signed by the president merely did not force the feeding tube to be reinserted. What it did was give the family another chance to go before a different judge at the federal level and review this case.

DINH: That's exactly right. Because of the procedural infirmities in this case, as alleged by Terri's family, the right to a federal court is seen as important as an impartial venue. A judge taking a fresh look at the case to see whether or not he or she agrees with the family's arguments.

I think that's essential, even if it turns out that the feeding tube is ultimately not restored, because that gives the population and the public comfort that an impartial judge has looked at this and decided the case on the merits.

ANGLE: So you mean even if the decision were to come out the same as the state court, there would be some reassurance for people that every last opportunity had been taken.

DINH: I think that's exactly right. As the president says when it comes to err, it's god to err on the side of life.

ANGLE: Yes. One last thing for you. The U.S. Supreme Court passed up an opportunity to weigh in on this at one point. What do you make of that?

DINH: That was a fairly technical opportunity to see whether or not the habeas corpus (search) statute applies to a case like this. That kind of jurisdictional issue was resolved by Congress yesterday, expressly granting the federal court the right to hear — the right to hear this case.

I think now we are starting afresh to see whether or not that statute is constitutional. And if so there, is a constitutional right for her to get a new hearing. I do not make much of the earlier denial of federal relief.

ANGLE: So it had nothing to do with the merits of the case then?

DINH: Absolutely not.

ANGLE: OK. Viet Dinh, thanks very much for joining us. We appreciate it.

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