'A Fundamental Life or Death Question'

J$P Instant Transcript! Ken Starr analyzes the legalities of the Schiavo case with Greta van Susteren.

From On the Record with Greta van Susteren, March 29 2005:

GRETA VAN SUSTEREN [FOX NEWS]: Have all the legal options now been exhausted? Joining us from Los Angeles is Ken Starr, former Solicitor General of the United States, former Judge on the United States Court of Appeals on the DC Circuit, former Independent Counsel, and the current Dean of the Pepperdine School of Law. Welcome, Ken.

KENNETH STARR: Oh good to be with you, Greta.

VAN SUSTEREN: Ken, has Gov Jeb Bush done all that he can?

STARR: I think that he has. He has a duty to uphold the law. There is an injunction in place by a court that has power, the lawyers call it jurisdiction. And the Governor is now obedient to that, after having tried very hard, through Terri's Law, through other forms of activity and litigation, moral suasion and the like, to try to preserve Terri's life. But I think we have now reached the end in terms of appropriate legal procedures.

VAN SUSTEREN: All right, you mentioned Terri's Law. That gave the Governor the authority to reinsert, to order the reinsertion of the tube. That was declared unconstitutional by the Florida Supreme Court. Was that decision right by the Florida Supreme Court?

STARR: I'm not going to question the Florida Supreme Court on this. In terms of Florida's law, there is a division of power in Florida's law as there is, as we're all familiar with, at the Federal Government. What we do know is the Governor felt that it was appropriate, under those circumstances, to seek, to take that action. Especially since questions have been raised in the litigation, and we're not here to relitigate what has been done. But one thing that we do know, Greta, is that for whatever reason the trial judge--and I'm not calling the trial judge's integrity into question--chose not to appoint a guardian ad litem. That means simply a guardian to look after the legal interests of Terri Schiavo:an independent person. It's my understanding that Florida law did call for that. One was appointed. That person later then left office, left that responsibility, and the judge saw fit not to reappoint one.

VAN SUSTEREN: I think, Ken, there were two of them, if my recollection serves me right. I think there were actually two that had been appointed along the way, but--

STARR: And Greta, there've been so many procedures through this. And I think you're making a good point, and I stand corrected, that there were two. But the point is, there came a time when there was no guardian ad litem. And so there were a number of issues, but we all know what the fundamental question is here. It's this deep moral anguish of the husband feeling one way, and he has the rights under Florida law. The parents feel profoundly, and we just heard that moving plea by the mother, please give us our child back. And so what is the law to do under these circumstances? Well, Florida does have a law. It is a law that's itself under criticism. I'm not talking about Terri's Law, I'm talking about the underlying law. And perhaps one of the things, Greta, that will come out of this terrible tragedy for this family--and really, we all reach out, and we heard Rev Jackson being very moving and emotional about this--that this transcends politics. This is about a fundamental life or death question, and that's why legislators across the country need to come together and say what is the right law for these circumstances.

VAN SUSTEREN: We only have about a minute left, Ken. In terms of the Federal Government, that Congress get involved in it, was that appropriate or is this really a matter for the states to handle?

STARR: Well a lot of people think that Congress should not have been involved as a constitutional matter. I'll be very brief; I think it's a close question. What we do know is that we want federal review of state actions that are very important. For example, in death penalty cases we want federal habeas corpus review. I think it's understandable under the circumstances. The constitutionality I think is going to remain an open question.

VAN SUSTEREN: All right, Ken, thank you. Always nice to see you and this is certainly not an easy case for either side of this horrible situation.

posted: Wed - March 30, 2005 at 12:09 AM       j$p  send