The NewsHour with Jim Lehrer

JIM LEHRER: Good evening and Happy New Year! I'm Jim Lehrer. On the NewsHour tonight some perspective on tragedy among the Kennedys from Haynes Johnson, Doris Kearns Goodwin, and Michael Beschloss; a Bowl Day look at Boston University's decision to scrub football; a court decision on the new telecommunications law, a return visit to the flooded people in places of Grand Forks; and a Roger Rosenblatt essay on a man who makes books. It all follows our summary of the news this New Year's Day.NEWS SUMMARY

JIM LEHRER: Republicans and Democrats disagreed today over Chief Justice William Rehnquist's criticism of the U.S. Senate. He complained about the failure to act on judicial appointments in an end-of-the- year report, saying federal courts were strained by too few judges and too much work. He said the Senate's inaction threatened the quality of justice in America. President Clinton endorsed Rehnquist's report; so did the Senate Judiciary Committee's ranking Democrat, Patrick Leahy of Vermont. But committee chairman, Republican Orrin Hatch of Utah, said the criticism was unwarranted. Rehnquist said 10 percent of the seats on the federal bench ere vacant now. A federal court decision on telephone competition will be appealed by long distance carriers. The ruling yesterday in Texas would make it easier for local phone companies to compete in the long distance market. The head of the Federal Communications Commission, William Canard, criticized the ruling and predicted it would be overturned on appeal. But local telephone providers called it a victory for consumers. We'll have more on this story later in the program. In Africa today at least 150 people were killed in a massacre near the capital of Burundi. A group of Hutu rebels attacked a village and military camp. Burundis' Tutsi-dominated army began hunting for the rebels. The conflict between them has been going on in Burundi since 1993. In Kenya, more than half the votes have been counted in this week's presidential and parliamentary elections. The government said police would deal swiftly and firmly with anyone who tried to disruptthe vote count, which is being conducted by hand. Unofficial returns show incumbent President Daniel Arap Moi in the lead. Back in this country today the body of Michael Kennedy was returned to Massachusetts for burial. He died yesterday in an Aspen, Colorado, skiing accident. The son of the late Robert Kennedy hit a tree while skiing and tossing an improvised football with family members. He headed a Boston non-profit organization that provided heating fuel for the poor. He was involved in a sex scandal with a babysitter last year. Michael Kennedy was 39 years old. We'll have more on the tragedy and the Kennedys right after this News Summary. And following that, getting out of the football business, a Telecom court decision, a return to Grand Forks, and a Roger Rosenblatt essay. FOCUS - FAMILY TRAGEDIES

JIM LEHRER: The Kennedy tragedies, the death of Michael Kennedy being the latest. Betty Ann Bowser begins.

BETTY ANN BOWSER: The family dynasty grew out of the marriage in 1914 of businessman Joe Kennedy and Rose Fitzgerald, the daughter of a Boston politician. They had nine children, five girls and four boys. The eldest son, Joseph, was killed in a plane crash in 1944. In 1948, another child, 28-year-old Kathleen, also died in a plane crash. John, who was elected President in 1960, was assassinated in 1963. His brother, Robert, decided to run for President in 1968, but on the night of his big victory in the California primary, Bobby Kennedy was also assassinated. The following the youngest Kennedy brother, Edward, a member of the United States Senate, drove a car off of a bridge at Chappaquidick Island in Massachusetts, killing a young female companion. Bobby and his wife, Ethyl, had 11 children. As adults, several of them suffered from alcohol and drug addiction. In 1984, 29-year-old David died of a drug overdose, and now his brother, Michael, dead yesterday at 39. He was reportedly playing football with family members while skiing downhill in Aspen, Colorado, when he hit a tree. Last year, Boston newspapers carried stories about an alleged affair between Michael and his children's babysitter that began when she was 14 years old. Michael was head of Citizens Energy Corporation, a non-profit organization that supplies low-cost heating fuel to the poor. In an interview he explained what it meant to him to be a Kennedy.

MICHAEL KENNEDY: I think the most important aspect people associate with my family is that one person can make a difference in this world if they really try.

JIM LEHRER: Now to NewsHour regulars Presidential Historians Doris Kearns Goodwin and Michael Beschloss and Journalist/Author Haynes Johnson. So, Haynes, we shake our heads and say, what about the Kennedys and the tragedies?

HAYNES JOHNSON, Journalist/Author: It never stops, Jim. You know, I remember when the Kennedy-- John Kennedy was assassinated. I had the feeling at the time--that day on November 22nd--it was like being alive maybe when Lincoln was assassinated because you had the feeling this only happened once in a century. It couldn't happen, this sort of thing, in our times; it did happen; and since then it seems so innocent now because we've seen nothing but one tragedy after another. And this family is so much now a part of our fable. It's no longer myth. It's no longer history. It's legendary. It's Grecian. It's Shakespearean. It's like the Book of Job. I was thinking today literally go back and read the Book of Job, where the Lord inflicts tragedy after tragedy after tragedy and tests his soul, and with the Kennedys, they've gone through this endless process; that litany we've just seen is just without end.

JIM LEHRER: A word that was thrown around loosely today is "curse," that there's a curse on this family.

HAYNES JOHNSON: Unless you believe in witches and hobgoblins and voodoo, and I don't--I don't think that's the case. I do think there's something here. It is Shakespearean in the sense of huge tragedy. It's no longer just a tragedy of one person, John or Robert Kennedy, whom I both knew and my colleagues also are experts upon that subject--and spent lives on studying them--but I have to say that this is something beyond that. It's fiction. It's Scotty Reston, the great New York Times columnist, when John Kennedy was killed, said, "Long after the historians have had their cut at John Kennedy, long after all of its memory, don't even know, it will be a part of a playwright's." In that sense, it is Shakespearean, I think.

JIM LEHRER: Shakespearean, Doris, is that the term you would use?

DORIS KEARNS GOODWIN, Presidential Historian: I don't know. On the one hand it is possible to put a literary construct of a curse or of a family seeming to tempting fates. When you look at the manner of the deaths of some of these people--in President Kennedy's original family, Joe, Jr. at age 29 had completed all the missions he needed to as a pilot in World War II, but he volunteered for a very dangerous mission, in part, some said because he had to equal the achievement of his brother, Jack, at the PT 109. He was killed on that dangerous mission just after his father had written him a letter saying, Joe, please don't tempt the fates; come home; I love you. Not long after that, Kathleen. It wasn't just a plane crash. She was going to meet and introduce her lover to her father. The plane was told it shouldn't go up in the air because there was a terrible thunderstorm, and she insisted on going.

JIM LEHRER: Now, where was this, Doris?

DORIS KEARNS GOODWIN: This was in Southern France.

JIM LEHRER: Southern France.

DORIS KEARNS GOODWIN: Her father had come over to France. She wanted her lover to meet him. They went up in a thunderstorm; the plane crashed; she died at the age of 28 years old. And then, of course, Jack and Robert by assassins' bullets after President Kennedy was told not to go to Texas. So you can see to some extent- -

JIM LEHRER: And also Robert Kennedy ran for President even though the word was out there was in the air, oh, my goodness, you might be endangering your life.

DORIS KEARNS GOODWIN: Absolutely. So partly I can understand the literary construct that can be put on this family and yet, on the other hand, what's so confusing is that each individual's life is a mystery as to when it will end and the manner of its death, and there's probably no way of knowing whether curses or tempting fates have anything to do with that. Michael's accident could simply have been an accident; President Kennedy was not really thinking he was going to be assassinated in Texas; Teddy Kennedy stayed in public life. He has not been assassinated. So I think sometimes it's because this family leads its life on such a public stage that we tend to make it Shakespearean. In my own family life my father at the age of nine lost his little brother to a trolley car. Two months later his mother died in childbirth complications. Two months after that his father died, and not long after that his little sister died in a freak dentist chair accident. Yet, no one ever said there was a curse because it was a private life, as most of our lives are lived. So there's something about the scale of this family's achievements and its tragedies that makes us put these constructs on them, which are partly true and partly not.

JIM LEHRER: Sure. Scale is it, is it not, Michael?

MICHAEL BESCHLOSS: I think it is. Everything is lived on a larger scale in this family. They have at certain times in the last 60 years more political power than anyone, more fame, more money, more glamour. Everything is out-sized, and that's also very American. And that's one reason why the Kennedys have occupied this enormously, this unique place in American history and also in our imaginations. And, you know, the other thing that struck me, as I heard both Haynes and Doris talking, is that tragedy does follow on tragedy, because- -

JIM LEHRER: Why?

MICHAEL BESCHLOSS: Well, look at Robert Kennedy, 1968. As you mentioned, Jim, he ran for President, despite the fact that there were a lot of threats against him. He campaigned across the country. In those days presidential candidates did not get Secret Service protection. He had only the most rudimentary informal bodyguards, oftentimes volunteers, who would help to protect him in a way that we in 1998 would consider very unserious. Had he been better protected he probably would not have lost his life in Los Angeles when he was shot in June 1968, but RFK felt that his brother had sort of tempted the fates. He said, "Man was not made for safe havens," and in a way there was an element of trying to defy certain forces that otherwise people might have been a little bit more careful about. RFK's death caused these children, this large family of his, not to have a father. And David Kennedy, in the early 1980's, lost his life, thanks to drug overdose. We have no idea or no serious idea what happened yesterday in this tragedy with Michael Kennedy, but these things might not have happened had Robert Kennedy taken a different course in 1968.

JIM LEHRER: Now, Haynes, you talked to Robert Kennedy. You knew Robert Kennedy very well. And you talked to him about this very thing, did you not?

HAYNES JOHNSON: He had an incredible fatalism. He had a sense because of the whole history we've talked about--his two brothers, John and Jo, and because of--

JIM LEHRER: His sister.

HAYNES JOHNSON: --his sister, Kathleen, "Kick" was her name, and this sense that you can lose it at any minute, at any moment, as Michael says. He was aware that this was a dangerous time, 1968, of great internal rebellion within the country, volatility, racial riots, unrest, and he had--war in Vietnam--and he charged ahead. He had this sense--we all--we were on a plane once--and we had a very bad landing and we were sitting next to each other and we looked each other in the eyes. Nothing needed to be said. You had the sense that--he knew you were living your life on the string. And one of the things the Kennedys did was to have faith, take the risks, prove themselves.

MICHAEL BESCHLOSS: And in Robert Kennedy's case we now know that there's at least the possibility that he felt that perhaps something that he had been involved in political might have led to his brother's assassination. And it has been speculated that caused him to feel that it would have been unworthy for him to protect himself excessively in 1968.

JIM LEHRER: Doris, what about this basic idea, though? I mean, you just went through what happened in your family; that if you are around a lot of sudden death, where you get to believe, my goodness, you could go at any moment, does that make you want to take less risks, or more risks?

DORIS KEARNS GOODWIN: You know, it's a very interesting question. I think in some ways in the Kennedy family it does seem to make them want to live more fully. It's interesting, Rose Kennedy once said to me that she was convinced that--

JIM LEHRER: This was Rose Kennedy--

DORIS KEARNS GOODWIN: The mother.

JIM LEHRER: The mother.

DORIS KEARNS GOODWIN: --of course, of Jack and Robbie.

JIM LEHRER: Right.

DORIS KEARNS GOODWIN: And she once said to me that she was convinced if her children who had died young had a choice and could back to life, they would still choose to be who they were even with the shortness of the years they were allowed to live because they'd had such adventure, such richness in their lives. And I thought about that so many times as I watched my own little kids grow up and thought, oh, my God, I hope I would never make that choice because the problem was they may have had adventurous lives but as Michael said, what impact did it have to have them die so young on their kids? So there is a spiral in this compound. The thing that I think exerts an endless fascination over the country, however, is that despite all these tragedies the family still retains its hold as a family in a disintegrating time of families in the country. They're all gathering at Hyannisport. How many families have a place where everybody can go to over generations? So however much we get our interest taken away from this family, it sort of gets pulled back because this family still exists as a force.

HAYNES JOHNSON: Doris, you just reminded me of something I've never forgotten till this moment. I was at the 25th wedding anniversary--for Sgt. Shriver and Eunice Kennedy Shriver, the oldest of the girls next to Jack Kennedy--and this was many years ago, and it was outdoors and a lovely thing, and they had--they put these home movies on. And they all--the Kennedys, the family--they started--oh, look, there's dad, look, oh, there's Jack, oh, look, there's Bobby, and I thought, my God, they're all dead, and yet they were celebrating their lives in this way, and don't ask me to explain it, but it was something powerful.

JIM LEHRER: What do you think about this risk business, that--you're saying that Bobby Kennedy, the Kennedy that you knew the best--it just made him want to take more risks--was he oblivious to risk?

HAYNES JOHNSON: Jim, I don't know. I think if you've been in combat, for instance, or if you have been in dangerous places, sometimes you go either one way. You withdraw, or you plunge back into life. And I honestly think with Jack Kennedy almost dying in the Pacific--this is an amateur psychiatry--I'm not practiced--to license--psychiatry here--

JIM LEHRER: You are here.

HAYNES JOHNSON: But I really think that there's something to that; that you live intensely for the moment and you grab life, serve what you can, and take it, and taste it.

JIM LEHRER: Whether it's 28 years or it's 98 years.

HAYNES JOHNSON: The Kennedys seem to have felt that way, and I can kind of understand that.

JIM LEHRER: Do you understand that, Michael?

MICHAEL BESCHLOSS: I do. And that runs back to the grandfather, Joseph Kennedy, whose business career, the fortune he built, really came on taking enormous risks of all kinds, and also this whole improbable political career of this family, coming out of Boston, the early 1930's. Who could have imagined that they would dominate our politics for 60 years? All that was based to some extent on a gamble.

JIM LEHRER: And yet, of course, when the first news--at least in my case when I heard the news of Michael Kennedy--thathe had died--and then the second news is how he died. Finally, it came out that he was playing football going down with another member of the family, while going down on skis, which is a very typical Kennedy to do.

MICHAEL BESCHLOSS: It sure is, and I think that is perhaps one of the best answers to the question of whether if you come out of this family where so much has happened to you, whether you tend to be a little bit more risk taking, or whether you tend to be more cautious.

HAYNES JOHNSON: And the pressure to live up to these myths, these giants among you, your elder brother is--and all of the relatives--and at Hickory Hill, when they were children, those Kennedy, Robert Kennedy children, they were all swinging on through the trees and so forth and getting broken legs and banged up. This was being a Kennedy.

JIM LEHRER: Right.

DORIS KEARNS GOODWIN: I remember being at the 20th anniversary of Bobby's Kennedy's death at Arlington Cemetery, and all the little kids, not only of Bobby's children, but their children were there planting a wreath, making a little speech, talking about how they wanted to live life fully and somehow keep the whole Kennedy ethos going. And that ethos is adventure, taking life, living it, if they can, as long as possible. It gets passed down from one kid to another because the family's so integral to each other.

JIM LEHRER: Yes. And integral to all of us as we discover every time something happens, either good or bad, and in this case a bad thing tonight. Thank you all three very much. FOCUS - SACKED

JIM LEHRER: This is a big day for football for those colleges with teams in the various bowl games, but not all schools see football as the good and big business it once was. Kwame Holman reports.

KWAME HOLMAN: In late November, the Boston University Terriers traveled to Harrisonburg, Virginia, to finish their season against conference rival James Madison.

ANNOUNCER: --gets the grain to Harriet--Harriet's got it at the 15--at the 20--at the 25--and is all across the 25--

KWAME HOLMAN: BU had won only once in ten games.

ANNOUNCER: Hannifan this time is going to be sacked.

KWAME HOLMAN: But regardless of the outcome on this day, BU's board of trustees already had decided this game would be the Terriers' last, after 91 years of Boston University football.

SPOKESPERSON: Ninety-one years of football down the drain.

SPOKESPERSON: I mean, a major university in a major city to eliminate football, which is--

KWAME HOLMAN: The National Collegiate Athletic Association designates Boston University and 117 other schools as Division 1 AA football teams. That ranks just below the level of traditional football powerhouses like Notre Dame, Nebraska, Florida State, and the rest of the 109 teams that play what's considered big time college football in Division 1 A. Football teams at Boston University's level don't play in any of 20 major bowl games that bring in some 110 million dollars to college football's elite schools. They don't get a share of big television contracts. In fact, Division 1 AA schools rarely are on television at all. That lack of TV exposure makes it difficult for those schools to attract top college athletes. Boston University is an urban school. Its campus, measured in city blocks, stretches narrowly along a highway just across from the Charles River. BU's football stadium, Nickerson Field, mostly sits empty during the week, but it didn't look much different on game day. It seats 14,500, but the home crowds for BU football this season averaged only 2,000.

JOHN SILBER, Chancellor, Boston University: Football is simply not a program that captures the interest of students. We have more students and members of the faculty attending lectures by Elie Weizel than attend a football game.

ELIE WEIZEL: History begins in prayer and ends in rage.

JOHN SILBER: That tells you something. It tells you this is not a football school.

KWAME HOLMAN: John Silber served 26 years as Boston University's president and now is it's chancellor. One of the first things Silber did when he arrived back then was to try to eliminate the football program. The board of trustees rejected the idea.

JOHN SILBER: In 1973, I thought that football was finished at Boston University. I would ask every incoming class: How many of you have seen a football game? A certain number would hold up their hands. How many of you have gone to a concert? More hands would go up among freshmen at Boston University who had seen a concert, or seen a theater production, a professional theater production, than had ever seen a football game. Now, that wouldn't be true if you asked a freshman class at the University of Texas or at Ohio State or at Michigan. But that's true of Boston University.

KWAME HOLMAN: By contrast, BU's men's ice hockey team has been a star attraction on campus for decades. Every year these Terriers are ranked near the top nationally and have won several championships.

JOHN SILBER: We have to pay attention to where the fans are. Eighty thousand fans see our hockey games in a year. Ten thousand see a football game. So why should we be devoting all of that money to a sport that interests so few?

KWAME HOLMAN: All of that money came to some $3 million a year the university was spending to field a football team. In October, the board of trustees announced it had approved the recommendation of university president Jon Westling to drop football. Freed from the expense of football, BU plants to upgrade its other athletic facilities. There will be a new recreation center for intramural sports to replace the 80-year-old armory the university bought from the city; overall funding for women's sports will be increased by $1/2 million a year, and 23 full scholarships for women student athletes will be added. That spending will help Boston University defend itself against a legal challenge. BU was one of twenty-five colleges named in a suit filed in June by the National Women's Law Center. It accused the schools of failing to meet the requirements of the federal law known as Title IX, which says women must be offered an equal opportunity to participate in college sports. 58 percent of BU's students are women and Chancellor Silber says eliminating football will allow BU to comply with the law.

JOHN SILBER: When you consider that you've got to have 63 scholarships for football and very expensive equipment and every expensive facilities, it skews the entire athletic budget unless it's a money-making program. If it's not a money-making program, if you're losing $2.9 million a year on it, where are you going to find the $2.9 million to put into women's athletics? It's not in the cards. So it's better to be able to spend that money by creating more scholarships in the women's sport.

KWAME HOLMAN: At the same time Boston University was making plans to drop football a member of its conference, the University of Connecticut, was planning to expand its football program and move up to the big time, Division 1 A.

LEW PERKINS, Uconn Athletic Director: I'm not saying that our university is going to be a better academic university for playing Division 1 A football, but I think it enhances, you know, our student life on campus; it enhances fund-raising; it enhances our national perception.

KWAME HOLMAN: University of Connecticut Athletic Director Lew Perkins watched as his school's men's and women's basketball teams achieved top national ranking. So when the Big East, one of the top conferences, invited Connecticut to join and play football, Uconn's board of trustees jumped at the chance.

LEW PERKINS: We need to generate some other revenue sources, and football obviously was a potential for us because we are probably losing about $2 million a year right now, and our projections through Big East revenue sharing and some other things is in year six or seven we'd actually be making money off of football.

KWAME HOLMAN: Connecticut's Memorial Stadium seats 16,000, and this fall attendance averaged between eight and twelve thousand as Connecticut played to a seven and four record; however, to qualify to join the Big East a university must have a stadium that seats at least 30,000. Lew Perkins says build it and the fans will come.

LEW PERKINS: I think we've got to do a great marketing job in the first five years or six years, and that's what we're thinking about doing. You know, when we play DC here, we'll have 30,000 people, not people--now, the state doesn't have a lot to do.

KWAME HOLMAN: The University of Connecticut estimated it would cost $100 million to build a new stadium, and it had to find a way to come up with the money in a very short period of time. The Big East Athletic Conference gave Connecticut until December 31st to accept its invitation to join. At the state capital in Hartford Governor John Rowland supported the stadium idea and was prepared to call the legislature into special session to approve the money to build it. It appeared to be a done deal but only for a while.

STATE SEN. GEORGE JEPSEN, [D] Connecticut: I was surprised, myself, that in 11 years in the legislature I've never seen an issue with so much support--five out of six top legislative leaders--newspapers in the state, the governor, the Uconn alumni network, I was surprised to see an issue with so much support tumble so quickly.

KWAME HOLMAN: State Senate Majority Leader George Jepsen opposed spending taxpayer's money for the new stadium, and he soon realized he wasn't alone.

STATE SEN. GEORGE JEPSEN: Once it became clear that the public did not support it and that the proponents were having difficulty articulating a reasonable basis for the stadium, defending the cost, establishing a linkage between academics and athletics, once it became clear that there was no compelling reason to do it, support on a bipartisan basis simply crumbled.

KWAME HOLMAN: The University of Connecticut already is slated to get a billion dollars in state money over 10 years to strengthen its academic programs and build new facilities. Legislators drew the line at spending 10 percent more to expand football.

LEW PERKINS: I think as you're looking across the country not only here in Connecticut but every place is do you want to spend your taxpayers' dollars on a facility, you know, for six games a year, and then, you know, we were trying to talk about high school games, and, you know, soccer, and stuff like that, versus spending money on some other areas that the state really needs. So I really, I personally really believe it came down to a financial issue.

KWAME HOLMAN: Across the state line in Massachusetts Boston University's John Silber agrees.

JOHN SILBER: Considering the cost of education and the amount that the taxpayers pay for public education, they have to ask is there some reason why we ought to be subsidizing the national professional football leagues? Is it some reason that we're obligated to provide farm teams for the majors? I think that's a pretty hard sell to the taxpayers in any state, in Massachusetts or in Connecticut.

KWAME HOLMAN: The decision not to provide the money to build a new stadium at the University of Connecticut is seen by some as an opportunity that may come around again. But the decision to eliminate football altogether at Boston University has been called radical, even cold-hearted, by the few but fervent fans who supported the team through its last game.

CARL REICHENBECHNER, BU Parent: Money, it's a wealthy university. I mean, they've got as much money as any Ivy League school.

KWAME HOLMAN: Carl Reichenbechner's son, Derek, is a freshman on the Boston University team.

CARL REICHENBECHNER: For these kids, they've taken the heart out of it; there's no trust for the school; there's no--you know, there's no alma mater; there's no boola boola. I mean, there's no homecoming for these kids anymore.

LEON SPIVACK, Class of '37: It's a great disappointment to me. It's my school. I can't deny that. The school was good to me when I went.

KWAME HOLMAN: Eighty-two-year-old Leon Spivack captained the 1937 BU team, the one that upset crosstown rival and nationally ranked Boston College.

LEON SPIVACK: it was a great victory for us. We had a good team, very good team.

KWAME HOLMAN: Spivack has attended almost every Boston University football game, home and away, for the last 22 years.

LEON SPIVACK: I'll find something. We'll be doing the things that we had always wanted to do but couldn't do because of football.

KWAME HOLMAN: Boston University played its final game against James Madison severely short- handed. Several players left the team soon after the decision to drop football was announced. So when quarterback Dan Hanafin left the game with an injury, Coach Tom Masela had no choice but to send in a wide receiver, Damon Mickel, to run the team. The team's effort was valiant. Down twenty-four to nothing at half- time, the BU Terriers rallied for two touchdowns in the second half. However, in the language of sports cliches it was too little, too late.

SPORTS ANNOUNCER: Time has run out on the Boston University Terriers.

KWAME HOLMAN: For the five seniors on the Boston University Football Team this would be the last game of their college football careers under any circumstances. The underclassmen now have decisions to make. Those who stay at BU will have their football scholarships honored through graduation. Some will transfer to other schools where they can continue to play football. They will have the option of coming back to Boston University to complete their academic work and get their degrees once their playing days are over. On this day, however, the thoughts of most of the Boston University players were not on the future but caught up in the present.

JIM LEHRER: Still to come on the NewsHour tonight, a Telecom court decision, a return to Grand Forks, and a Roger Rosenblatt essay. UPDATE - GOING THE DISTANCE

JIM LEHRER: Phil Ponce has the Telecom story.

PHIL PONCE: The five regional Bell telephone companies are cheering a federal judge's decision that could let them enter the long distance market. Late yesterday a U.S. district judge in Texas ruled as unconstitutional portions of a law keeping the so-called Baby Bells out of the long distance business. Joining us now to explain the ruling and its implication for consumers is Mike Mills, telecommunications reporter for the Washington Post. Welcome, Mike. And first of all, what law was the judge looking at, and what were the relevant portions that were under review?

MIKE MILLS, Washington Post: The judge was looking at the 1996 Telecommunications Act, which Congress enacted and President Clinton signed in February about two years ago with the goal of overhauling the nation's telecommunications laws for the first time in some sixty-two years.

PHIL PONCE: And just briefly, a little bit of history of what led up to that law.

MIKE MILLS: The law was basically a way to put into law much of the provisions of the consent decree that broke up AT&T back in 1984, back when MCI and other companies wanted to connect to the local and long distance monopoly phone networks, and the Justice Department had accused AT&T of using a market power to keep competitors out. The result of that consent decree was the creation of the Baby Bells. And the deal was that AT&T would go its way with long distance, and the local Bell companies would have a continued monopoly in local phone service, with a ban on offering long distance service, among other things.

PHIL PONCE: And what was the point of the ban? What was the point of keeping the local regional Bells out of the long distance industry?

MIKE MILLS: The deal was that the if the regional Bells could offer long distance service in competition against AT&T and MCI and Sprint and others, that those other companies didn't have the direct link to your house and my house like the regional Bells do and that they could use that so-called bottleneck into the local house--into the local phone lines to discriminate against their competitors by maybe charging them more for access to the local lines or by using their profits from the regulated local phone business to subsidize their long distance activities.

PHIL PONCE: So what was the argument that the regional Bell companies made in front of this judge?

MIKE MILLS: Well, the Telecom Act set up a new sort of carrot and stick situation for the Bells that said you can get into the long distance business but only when you've proven or persuaded regulators that you've opened up your local phone market to competitors. They had to meet a lengthy 14 point checklist; the Federal Communications Commission had to approve their application to get into the market; and the judge overturned that portion of the law on the grounds that it punished the Bell companies by keeping them out of the long distance market.

PHIL PONCE: And the local Bell companies made the argument what, that it's unconstitutional for them to be singled out in legislation?

MIKE MILLS: Exactly. It's rather unusual to name companies and legislation. And they said that Congress was violating their constitutional rights by essentially deeming them guilty of market abuses that they hadn't yet committed, you know, perceived into the future, and that without a trial in the judicial court of law, they have been punished by being prevented from getting into the long distance business. And they pointed out that companies like GTE and other local providers that were not part of the consent decree were free to enter the local business, but the Bells weren't.

PHIL PONCE: So the reaction on the part of long distance companies like AT&T, MCI--

MIKE MILLS: Well, they're clearly very worried, and I think the government, the FCC, the Justice Department are all fairly taken aback and shocked by this announcement, this ruling by the judge, and the argument is that local phone competition now will probably never evolve the way that the sponsors of the law had planned if the Bells are immediately allowed into the long distance market. It's sort of like letting a genie out of the bottle. You can't put it back again. And if the Bells lose their incentive to cooperate in letting local competition flourish, in other words, if they have long distance power to enter that market, then they wouldn't have any incentive to open up the local market for competitors.

PHIL PONCE: So, in other words, the leverage would be gone?

MIKE MILLS: Exactly.

PHIL PONCE: What does it mean for consumers? What could this mean? Now, obviously, because of the interests that are stake there's going to be an appeal, but what could it mean to consumers?

MIKE MILLS: It depends on who you talk to. For the Bells' perspective, they think that consumers will benefit immediately because they'll have a new options for long distance. They could choose their local phone company for long distance service. The long distance companies and the FCC, on the other hand, argue that competition will suffer, particularly in the residential local market.

PHIL PONCE: If this ruling can be appealed and is expected to be appealed, why is it so significant?

MIKE MILLS: It's significant because it's yet another example of the Telecom Act failing to live up to its promise to offer competition for consumers. Another court--a couple of years ago--or actually a year and a half ago--had struck down some important pricing rules that the FCC wanted to impose. And this is another big setback for the sponsors of the Telecom Act.

PHIL PONCE: Because the Telecommunications Act was supposed to increase competition and, therefore, affect prices. What kind of grades is it getting, as far as lowering phone rates?

MIKE MILLS: Well, local phone rates have been rather steady. The long distance rates have gone down somewhat. But, by and large, we haven't seen the kinds of competition that people have expected.

PHIL PONCE: How big of an industry is this, and how many--in terms of resources, what are you expecting to see in terms of the appeal?

MIKE MILLS: Well, we're looking at a market that's worth $100 billion for the local--side of this fight, the local companies and the long distance carriers are going to put into it everything that they've got. The local--the Bell companies hired top gun litigators, constitutional scholars, like Lawrence Tribe. Robert Bork is arguing on behalf of AT&T. So this will be a major legal battle, the result of which will be at least as significant as the consent decree that broke up AT&T and the Telecom Act of '96, itself.

PHIL PONCE: Getting back to the issue of consumers, what difference does it make to a consumer--what do you say to consumers who might say it would be terrific if I could get local service from the same company and long distance service from the same company, what a convenience, what's the other side of that?

MIKE MILLS: Well, nobody would argue with that. The idea is that you should be able to pick up your phone and pick a local phone company like you do a long distance company. The regional Bells have promised to try to make that happen in exchange for being allowed to get into the long distance business. So far that largely has not happened, except for in urban areas with large scale big ticket business customers. They do have some choice in local phone providers, but largely residential and small business consumers have yet to see that kind of choice. So the whole question here is, will that ever happen, and does this court decision make that less likely to happen?

PHIL PONCE: How about consumer groups, what are they saying?

MIKE MILLS: Consumer groups are quite angry about this decision. They say that the Bell companies have sort of hand--to rule on their behalf. There's a judge in Texas who is in the territory of Southwestern Bell, which is known--Southwestern Bell--to be, according to the consumer groups, one of the more intransigent companies when it comes to opening up the local market. Now, Southwestern Bell, on its behalf, says that the long distance companies, AT&T and MCI, have little interest in serving the consumers that the Bell companies have promised to serve; in other words, the large residential consumers; that there haven't been enough steps taken to reach those customers with competitive local phone service.

PHIL PONCE: And you talked about this decision being a surprise. Why is that?

MIKE MILLS: Well, I think everybody has been focusing on some more arcane pricing issues here in Washington, and few people took seriously this lawsuit, when it was filed by SBC back in July. The judge--

PHIL PONCE: SBC being--

MIKE MILLS: I'm sorry--Southwestern Bell, the Bell phone company that filed the suit--so the New Year's Day--the New Year's Eve Day surprise by the judge really set a lot of people--took them by surprise.

PHIL PONCE: And what predictions, if any, are you hearing from the different groups as to what's going to happen on appeal?

MIKE MILLS: Well, clearly, the government and the long distance companies will ask for a stay, in other words, a motion to prevent this from taking effect until an appeal can be heard. If the judge in Texas does not approve that stay, they can go to the appeals court and ask for a stay. Beyond that, then they will obviously appeal it, and if they lose the appeal in the federal appeals court, then it will go to the Supreme Court. Even if they win, it would go to the Supreme Court most likely because the Bells would ask for it to go to the highest court.

PHIL PONCE: Mike Mills, thank you for being here.

MIKE MILLS: My pleasure. Thank you. FOCUS - AFTER THE FLOOD

JIM LEHRER: Now, revisiting Grand Forks, North Dakota, where people are still recovering from last spring's devastating floods. Fred De Sam Lazaro of KTCA-St. Paul-Minneapolis reports.

FRED DE SAM LAZARO: It was called a 500-year flood, a natural disaster that took days to unfold and forced dozens of communities along the Red River to evacuate. The Grand Forks area, with 50,000 people, was the largest. Today it is quiet in neighborhoods like Lincoln Park, one of the more visible casualties of the flood. In the next few months it will become mostly invisible, where crews will demolish or move these and six to seven hundred other homes. The city wants to clear areas that may be vulnerable in a future flood and help homeowners rebuild on higher ground.

JOEL MANSKE, Director of Housing: And so this is the first neighborhood, and these are all sold now. These families that are acquiring these properties in this neighborhood now were all displaced.

FRED DE SAM LAZARO: Joel Manske is Grand Forks' director of housing. He said the flood has spawned the largest building boom since the city was first settled.

JOEL MANSKE: I think about how quickly we packaged this project. It seems like overnight that we've got 200 houses in the ground out here.

FRED DE SAM LAZARO: How much of the shortage does that make up for?

JOEL MANSKE: Oh, I don't think it's even a dent. I think it's probably, you know, 20 percent of what the potential need is following the bio program and the demolition of 600 plus housing units. This was a wheat field. And these are actually homes now you're seeing going in here, and they're still pouring basements.

FRED DE SAM LAZARO: So urgent is the need to build new housing that for the first time ever construction will continue throughout winter, when wind chills routinely drive temperatures well below zero. Under an assistance plan funded by federal grants the city is offering homeowners in flood prone areas the appraised value of their property before the flood, plus about 5 percent to be used toward new homes in safer areas like the ones coming up here.

JOEL MANSKE: The square footage is very similar, if not maybe a little bit greater, and the cost is, as we talked about earlier, then these families probably are leaving, but the financing tools and mechanisms that are available to these families will ensure that their monthly debt services are very similar to what they had pre- flood.

FRED DE SAM LAZARO: A few homes in the city's buyout program will be moved to higher ground like this turn of the century Victorian. It's owner now lives in one of the 300 or so mobile homes brought in by the Federal Emergency Management Agency.

SALLY DUGAN-THOMPSON: I kind of like the contrast between FEMA trailer and Victorian bed.

FRED DE SAM LAZARO: Sally Dugan Thompson decided reluctantly to accept the city's buyout offer for the dream home she shared with her daughter who now lives away at college.

SALLY DUGAN-THOMPSON: If I could work on this project full-time, I'd, you know, find a mover, find a new lot, find a new foundation, new landscaping, move it, so on and so forth, and then find contractors. Of course, the amount of flood insurance never really covers what a restoration would take. So I would have to spend a lot of time doing it on the cheap. And a house like that needs loving care, and I felt that the project was just beyond me.

FRED DE SAM LAZARO: Thompson expects to move into permanent settings in a few months. Moving, cleaning up, and looking for legal papers have left her exhausted but philosophical.

SALLY DUGAN-THOMPSON: I've been quite--I guess the word is "cozy." It's--I'm learning to live with a lot less than I had when I lived in a big house, but that certainly doesn't hurt anybody. And, you know, it's probably character building. I don't know.

FRED DE SAM LAZARO: But Thompson's neighbors, who were renters before the flood, would not use the word "cozy" to describe life in a FEMA trailer. The Price family actually received two adjacent mobile homes to accommodate Ken, Yolanda, and their nine children. Most of the time, however, they're gathered in this room.

YOLANDA PRICE: Well, it's really crowded. It's crowded.

KEN PRICE: Because we kept--the stuff that we didn't use, we stored in the basement. Like I say, we got two storage now, and it's just cramped in here for--I mean, most the stuff we need, some of it's sitting in boxes in the hallway. There's not enough dresser space or closet space. I mean, the bedrooms are real small.

YOLANDA PRICE: When the kids get home from school, it's like super busy. FRED DE SAM LAZARO: The Prices lived in this four-bedroom rambler before the flood. It actually sustained only minor damage. What evicted the Price family was the post-flood market place. The landlord instantly raised the rent 50 percent.

YOLANDA PRICE: He came out, and he said, that, you know, can you afford to have the rent raised on you, you know, and I said, not really, you know, and he goes, well, you know, you know--somebody told him that he could get almost a thousand dollars, you know, if he raised it now because of the flood and everything. You know, I said, we can't afford that, and he goes, well, if you can't, you know, we're going to have to evict you, you know.

FRED DE SAM LAZARO: Now, the Prices aren't sure they could afford anything similar once they move out of their mobile home park. FEMA plans to close it next October. Housing of all types is scarce, and for this family, which gets most of its income from Ken Price's work as an apprentice plumber, it's too expensive.

KEN PRICE: Because even when we get out of here, we're starting--you might as well say we're just about starting from scratch because we have to get furniture--I mean, most likely--if I buy a house, I'm going to have to get appliances. And my credit's not--the odds on that happening--buying a house is real slim because of my credit, actually, both of ours from first marriages. They're helping homeowners in town that got hurt from this flood. What about the renters? At least 45 percent of this town is renters.

FRED DE SAM LAZARO: Many displaced renters and homeowners complain the city has moved too slowly to help them. Mayor Pat Owens became an icon and won universal praise for her leadership during the crisis.

MAYOR PAT OWENS: We will rebuild.

FRED DE SAM LAZARO: However, starting almost immediately after it, her day-to-day management has been criticized by some citizens, including Mike Jacobs, editor of the "Grand Forks Herald."

MIKE JACOBS, Editor, Grand Forks Herald: Well, there's a lot of committees at work. You know, there's just an awful lot of effort, but it's hard to bring all of that together. And it takes a particular talent to do that, and it's not--it's not Pat's biggest talent. She's--you know--she's a wonderful woman, you know--courageous, forthright. I mean, she's--she was magnificent during the flood and, you know, we love her. But we're a little bit impatient with her for not solving our problems for us, you know, for not saying, here, here, and here is how we have to proceed.

MAYOR PAT OWENS, Grand Forks: It isn't moving as slow as people think it is. And some of the paperwork is required by different agencies. And we have to pass it through the state. So there is a lot of red tape to do before we can come to the final buyout. Also, we lost our register of deeds office, and that made it extra hard to do. I would appreciate if people would help us and look at the positives.

FRED DE SAM LAZARO: One of the positives many here cite is the "Grand Forks Herald," which is replacing the building it lost to the flooding and fire with a new one.

MIKE JACOBS: [April 21, 1997] Can we get someone to make a quick phone call to Deep River Falls? Apparently, the lake is leaking, and they're sandbagging the town.

FRED DE SAM LAZARO: The Herald won kudos last spring for continuing to publish to its evacuated city, doing so from a nearby small town school.

MIKE JACOBS: Our people are scattered everywhere, and there's no--there's nothing tangible about Grand Forks anymore, except the Herald.

FRED DE SAM LAZARO: Today, until its new building is completed next June, the newspaper is home in a former department store.

MIKE JACOBS: I would say the Herald is probably better off in the sense that it is closer to the community; it understands the community; it is looked to as a source of information and as an advocate, not universally, of course, but more, I think, thanin the past. And that's very important to a newspaper. So, in a sense, we've been a gainer.

FRED DE SAM LAZARO: There's abundant opportunity in the lucrative construction trade infused with some $173 million in federal disaster relief and community development grants. That figure is much higher than the city of Grand Forks's annual budget. Even more is likely as the Army Corps of Engineers draws up dike and diversion plans for the river. There's also been record giving--tens of millions of dollars from private individuals and charities.

MIKE JACOBS: People looked at Grand Forks and saw what they wanted America to be--a little town that worked--a town that valued struggle--I mean, that was going to defend itself, a place where people were well spoken. You know, they looked to Grand Forks and they liked it. And I think it was a nostalgic appeal--kind of this is the way America was in the 19th century, and people looked and they liked it. And so it tugged at them. And they responded.

MAYOR PAT OWENS: We've stayed out front probably longer than any community ever has in a disaster. I still personally am asked to go all over the country. But I try not to do that for more than a day, a week, because I also am a working mayor. And everywhere I go they continually do drives and so forth. We have Christmas decoration drives, and we have toy drives, and that all still comes into the community to be distributed.

FRED DE SAM LAZARO: However, the lack of affordable housing could force many low and moderate income residents to leave Grand Forks, feeding the nagging long-term fear of significant population loss. More immediately, though, enough construction workers have moved in to keep population losses, unemployment, and the housing vacancy rates near zero. ESSAY - LIMITED EDITION

JIM LEHRER: Finally tonight, essayist Roger Rosenblatt on a man who makes books.

ROGER ROSENBLATT: No man is an island, but a few people try to come close. Islands have produced some remarkable cultures, after all, like Greece or Britain or Ireland--or Staten Island, the unsung occasionally obstreperous borough of New York City on which Malachi McCormick has built his Stone Street Press. McCormick, born on the Irish island in County Cork, has carried that literary culture to the American island and has set up within this insular world an island within that. In the Stone Street Press, McCormick makes the book he sells. He does his own calligraphy and makes the binding. Some of the books he writes himself, like the story of the 6th century Irish monk St. Coumbkille, and a how-to book "How to Make a Decent Cup of Tea." In other works he presents collections and translations. From the Stone Street Press one may order old Irish monastic poetry, Irish nature and love poems, and collections of Irish proverbs, English, African, and Yiddish proverbs. McCormick may be an island but his coastline touches the wide world. He is, of course, a weirdo, and oddball, a craftsman who flies so brazenly against the grain of modern times that in his company modern times seem to wither and vanish. He taught himself deliberately until he could make lettering as clear as type. He taught himself about paper and design. Talk about small presses. You don't get much smaller than McCormick. He is what he makes--a limited edition. What makes McCormick especially interesting is that he is both out of the times and very much in them. On the one hand, he is the enemy and the anthesis of the big bookstore chains like Borders and Barnes & Noble and the large publishing conglomerates like Random House and Simon & Schuster. And he struggles against those forces mightily. On the other hand, he is the perfect down-sized company. He will not renege on benefits he has promised himself. He will grant himself a vacation. He cannot be laid off. And he can even give himself a bonus from time to time. If there is money for a bonus, he gives it to McCormick.

MALACHI McCORMICK: I have two trainings. I was trained as a management consultant, if you can believe it, and as a chemist. And now I've made my living from both of those before I got into this. And at that stage I had the option to go back to either of those. And I can tell you that to say I would earn 10 times or 20 times what I earn doing this, doing either of those two things, will give you an indication of the rewards. They're extensive. They're not financial, but I think they're more to do with the soul.

ROGER ROSENBLATT: There must be something else very pleasing in what McCormick does. Alone on his island he has the satisfaction of knowing that he is different, different in a world that is becoming more and more the same. Where everything is moving faster, he goes slow. In an anti-literary age, he creates books; he writes in a near-dead language. He does what he likes, and he does it for the sake of beauty.

MALACHI McCORMICK: I try to sell books. It's very important to me to sell books, and it's a very marginal existence. But I would wish for everybody that they had something to--have an art--desire for money in their lives in the way that I have it. And maybe I'm just consoling myself with that thought because I ride a bicycle; I will probably never own a car in my life, or own a house, or have health insurance. But these are things, and this is a very healthy and wonderful thing to do.

ROGER ROSENBLATT: I noted his insularity, but I neglected to mention the insularity of writing, itself. Here is a 9th century Irish poem in one of his books.

[MALACHI McCORMICK READING POEM]

Translation of Poem on Screen:

A wall of trees surrounds me a blackbird's melody enchants me [I won't hide it.]

There, above my little book, with its lines, the bird's trill enthralls me.

A clear-pitched cuckoo sings to me From the green clock of his tree fort [beautiful sound!]

Judgement Day! God's good to me: writing beautiful stuff under the greenwood.

ROGER ROSENBLATT: I'm Roger Rosenblatt. RECAP

JIM LEHRER: Again, the major stories of this holiday, Chief Justice Rehnquist criticized the Senate for failing to act on federal judge nominees. And the body of Michael Kennedy was returned to Boston. The son of the late Robert Kennedy died yesterday in a Colorado skiing accident. We'll see you on-line and again here tomorrow evening. I'm Jim Lehrer. Thank you and Happy New Year! MNEIL FOCUS - JUSTICE DELAYED

JIM LEHRER: Confirming federal judges and to Phil Ponce.

PHIL PONCE: In his annual report on the Federal Judiciary Chief Justice William Rehnquist warned that there is too much work and too few judges. He pointed out that 82 of 846 federal judicial posts are vacant, almost one in ten. Twenty-six of those posts have been vacant for eighteen months or longer. The Senate confirmed 101 judges in 1994 but only 17 in 1996 and 36 last year. The chief justice said vacancies cannot remain at such high levels without eroding the quality of justice that traditionally has been associated with the federal judiciary. Some current nominees have been waiting a considerable time for a Senate Judiciary Committee vote or a final floor vote. The Senate is surely under no obligation to confirm any particular nominee, but after the necessary time for inquiry it should vote him up or vote him down. Joining us now to react to the chief justice's report is Republican Senator Orrin Hatch of Utah, chairman of the Judiciary Committee, and Senator Patrick Leahy of Vermont, the committee's ranking Democrat. Gentlemen, welcome to you both. Sen. Hatch, your reaction to the chief justice's report.

SEN. ORRIN HATCH, [R] Utah: Well, you know, I think that when you stop and think about it, we have 82 vacancies. Forty of them don't even have nominees. Now, we're good on that Judiciary Committee but we've never been able to confirm somebody who hasn't yet been nominated. I think we can do a better job. I think the President, if he sends up qualified, non-controversial nominees, they go through very quickly. If they have problems and they're not qualified, then it's a problem. With regard to the judiciary, if all judges were like Chief Justice Rehnquist, who were not activist in nature, I think we'd have a lot better time on the committee as well because some of the committee members do get upset at some of the activist nature of some of the judges. But, you know, there are those 82 vacancies and 42 nominations that are sitting there.

PHIL PONCE: Sen. Leahy, your reaction to what Chief Justice Rehnquist said.

SEN. PATRICK LEAHY, [D] Vermont: I'm sitting here in Vermont, and I can't see Sen. Hatch's face. And I don't know if he was saying that with a smile or not, but the fact of the matter is it's been an outrageous stall on the part of the Republican majority in the Senate. In 1994, we confirmed 100 judges, 101 actually. We had a handful a year ago, and then last year half of the judges that were sent up there. It's not the President's fault he sends people up and they stay there forever. Magaret Worrell has been voted in two different years out of the Senate Judiciary Committee. She still hasn't been confirmed, and it's now the third year. In fact, the President is having a difficulty getting people to accept being named to the federal bench because they find themselves treated like--I don't know exactly how to describe it--but just treated miserably by the U.S. Senate-- they sit there and wait year after year, and they can't even get their names--can't even get voted on.

PHIL PONCE: Sen. Hatch, how do you react to it, to the delays on the nominees who have been nominated and who have come out of committee?

SEN. ORRIN HATCH: In 1991, when the Democrats controlled the committee and George Bush was President, there were 148 vacancies. Nobody complained then. In 1992, there were 118 vacancies. Nobody was complaining. In fact, Chief Justice Rehnquist in 1992, when Bush was President and the Democrats controlled the Senate Judiciary Committee, he basically issued the same report condemning the fact that--well, not condemning anybody but basically saying that we need to get more judges. At that time there were 120 vacancies compared to the 82 today. I might add that we did a computer check of the articles written about those vacancies at that time--and about his criticism of the vacancies--and requested we get those filled. There were two in the whole country. I don't think there was any report even by the NewsHour at that time. So what I'm saying is, is that it's nice to complain, but we can't confirm people who aren't there, who aren't nominated. And I have to say it's difficult to confirm people who are controversial.

SEN. PATRICK LEAHY: There's a whole lot of people sitting now--there's a whole lotof people sitting now who can't even get a hearing, can't even get a vote. Now, if you have somebody you don't want, then vote them down. But what happens, they're not even allowed to come to a vote. I'm told that you can't bring somebody to the floor because, well, there's a whole lot of judges have problems, when they come to a vote, we have a roll call vote on them, all 100 Senators vote for them. It's an obvious stall. You've mentioned President Bush. In the last year of any President's term we have what we call the Strom Thurmond rule which slows down after about partway into the year. They don't have any more federal judges going through. And yet, President Bush in the last year of his term had the Democrats confirm almost twice as many judges as Republicans allowed to be confirmed in the first year of President Clinton's second term. Now, that is an outrageous partisanship. When we do twice as much--when the Democrats did twice as much for President Bush in the last year of his term than the Republicans are willing to do for President Clinton in the first year of a second term, I think something is wrong.

PHIL PONCE: Obvious partisanship, Sen. Hatch?

SEN. ORRIN HATCH: No, I don't think so. Actually there are 762 sitting active federal judges today. When President Bush was president, there were 720 at the same time as we have right now. In other words, there are 42 more judges on the bench today than there were when President Bush was sitting there.

PHIL PONCE: Even when the chief justice says there's one out of ten vacant.

SEN. ORRIN HATCH: That's right.

SEN. PATRICK LEAHY: --substantially new cases--

SEN. ORRIN HATCH: Let me finish. There aren't that many more cases, and I know federal judges who tell me that they're not overworked. In some areas there are some problems, and we have to solve those problems, and Pat is right. We have to do a better job on the Judiciary Committee and in the Senate. But the fact of the matter is, is that there are 762 active federal judges today compared to 720 at the same time during the Bush administration. And there are 345 senior judges who have taken senior status, who are hearing cases, and who are alleviating the caseload.

SEN. PATRICK LEAHY: So you do not feel they are overworked as a group, as the chief justice--

SEN. ORRIN HATCH: I've had lots of judges on the federal bench tell me we're not overworked. Now, in some areas they may be. For instance, the 9th Circuit Court of Appeals--there's no question that there's a lot of vacancies on that court.

PHIL PONCE: One third of the seats are vacant.

SEN. ORRIN HATCH: Well, it's aggravated by two things. We've only had three nominees.

SEN. PATRICK LEAHY: And--600 forestalled hearings--these are taxpayers that come--want to have matters heard before that court; 600 of them have to be forestalled because judges aren't there. 80 percent of the panels in the 2nd Circuit have to bring a retired judge who could be very, very elderly, could not want to come--they have to come in to hear the cases. That's wrong. That is a breakdown in the justice system. And Chief Justice Rehnquist is absolutely right.

SEN. ORRIN HATCH: Well, but the point is, is that they have the judges to hear it. They're not doing it. In the 9th circuit one of the problems was, was that there was a desire to split the circuit on the part of some. We had to work with that finally. There's a commission set up because there was a desire to split. There were Senators who felt like you couldn't go ahead with judges. Then we didn't have nominations. One judge had to withdraw after some difficulties unrelated to the committee. You know, there are lots of problems, and I don't think it should all be laid at the feet of the Republicans or of the committee, especially when we can show that we're doing a pretty darned incredible job in comparison to past Democrat--

PHIL PONCE: Sen. Leahy, let me ask you--

SEN. PATRICK LEAHY: I might accept that if I didn't see fund-raising letters going out on behalf of Republicans saying help us keep judges from going on the bench; help us continue this stall. And when you find Republican-oriented groups having fund-raising letters extolling and helping to support a stall in the Republican-controlled Senate, you know, you can't accept that. This is a democracy, and it's a democracy that stays that way because we have an independent judiciary. We've had a Republican leader in the House and a Republican leader in the Senate say we have to intimidate federal judges. That's wrong. That's unprecedented. I don't know of any time--certainly in my lifetime--when anybody--Democrat or Republican--has ever taken that position. This is something new, it's partisan, and it's damaging the federal court.

PHIL PONCE: Sen. Leahy, how do you react to Sen. Hatch's earlier statement that the President is sending up "activist nominees?"

SEN. PATRICK LEAHY: Oh, baloney. These so-called activist judges get held up forever and ever. And then when they come to the floor, they get 100 Senators vote for them. To look at one decision somewhere and say, oh, somebody is an activist is like saying that Warren Hatch is a liberal because he joins periodically with Ted Kennedy on legislation. It doesn't make Ted Kennedy a conservative; it doesn't make Orrin Hatch a liberal.

SEN. ORRIN HATCH: Well, that's what some of the conservatives think anyway. That's how they get upset at me. Let me just say this. Pat makes a good point. There's no excuse for some of the fund-raising letters. They haven't been sent out, as far as I know, by Republican candidates. But there was a group on the outside that was sending out fund-raising letters that I felt were reprehensible. And one of them actually had false facts in the letter. And that shouldn't be done. And I agree with Pat on that. And we should not politicize a judiciary. But, like I say, where was the screaming when there were 148 vacancies during the Bush administration, 120 vacancies during the Bush administration? Here we have 82, and a lot of the nominees that we have came in the last few weeks of this last session, so--this isn't a numbers game. We have to be able to look at these people fairly--

SEN. PATRICK LEAHY: The fact of the matter is moved them a lot faster.

PHIL PONCE: Sen. Leahy.

SEN. PATRICK LEAHY: The Democrats confirmed judges for President Bush one heck of a lot of faster than the Republicans--

SEN. ORRIN HATCH: I can give you five years where you confirmed less than 36, which is what we confirmed last year. I can give you five years in the last ten years.

PHIL PONCE: Senator, what impact do you think the chief justice's remarks are going to have, Sen. Leahy? Will this light a fire under the Senate?

SEN. PATRICK LEAHY: I sincerely hope it will because we should--the one area we should not be partisan is in federal judges. And it hurts--damages the court and damages the integrity of the court, and it damages the confidence people have in the courts if we allow it to become partisan. This is something Republicans and Democrats ought to sit down and say, we'll be partisan and other things, but not in judges.

PHIL PONCE: Sen. Hatch, what impact do you think it will have?

SEN. ORRIN HATCH: I think if Pat were the sole say in the Democratic side, that would be all