The NewsHour with Jim Lehrer

JIM LEHRER: Good evening. I'm Jim Lehrer. On the NewsHour tonight, full coverage of the acquittal of the US Marine pilot involved in the Italian ski gondola tragedy; Charles Krause updates his story of Honduras,a nation trying to rebuild after Hurricane Mitch; David Gergen talks about the black upper class; and Elizabeth Farnsworth runs a discussion about Retired Supreme Court Justice Harry Blackmun, who died today. It all follows our summary of the news this Thursday.

NEWS SUMMARY

JIM LEHRER: "Not guilty" was the verdict today in the Italian cable car trial. U.S. Marine Corps Captain Richard Ashby was acquitted of involuntary manslaughter and other charges. He flew the jet that sheared a ski gondola line last year; 20 people plunged to their deaths. A jury of eight Marine officers at Camp Lejeune, North Carolina, reached the decision. Ashby spoke to reporters afterward.

CAPTAIN RICHARD ASHBY: Basically all I really want to say is that this has been a tragedy for all involved, and my heart, my heart and my thoughts and prayers go out to the families, the victims of this tragedy. Thank you.

JIM LEHRER: Relatives of the victims attended the trial. They said justice had not been served. The Italian prime minister said he was "baffled" by the verdict. He was in Boston and will meet President Clinton tomorrow. At the Pentagon, Spokesman Kenneth Bacon said this.

KENNETH BACON: This has been a very difficult episode for both the US and Italy. We are, however, extremely strong allies. Our forces continue to serve and train together. We share the same goals for resolving this as fairly and as quickly as possible. And although this is a human tragedy of unbounded dimensions for the families involved, and certainly a difficult issue for our two governments to handle, I think we've handled it as -- we've tried to handle it as well as possible and I think we've succeeded.

JIM LEHRER: We'll have more on this story right after the News Summary. Retired US Supreme Court Justice Harry Blackmun died today at an Arlington, Virginia, hospital. He wrote the 1973 Roe V. Wade decision that legalized abortion in the United States. He was appointed by President Nixon in 1970 and served until 1994. He died of complications from hip replacement surgery nine days ago. Justice Blackmun was 90 years old. We'll have more on him at the end of the program tonight. A trade dispute between the United States and the European Union intensified today. EU officials complained the US had no right to levy 100 percent tariffs on certain European goods. The Clinton administration said it acted because of European banana import rules, which they said unfairly favor Caribbean growers over Americans. The World Trade Organization will now try to settle the matter. In Africa today, 15 Rwandan rebels were killed in an ambush. They were suspected of murdering eight foreigners, including two Americans, in Uganda on Monday. A Ugandan military official said Rwandan government forces caught the guerrillas in the Democratic Republic of the Congo. Former Senator Bob Dole headed for Kosovo today; he went at the special request of Secretary of State Albright. He said he will urge ethnic Albanian separatists to sign a proposed peace agreement as soon as possible. He plans to meet with a range of rebels, including leaders of the Kosovo Liberation Army. And that's it for the News Summary tonight. Now it's on to the "not guilty" verdict in the Marine pilot trial; an update on rebuilding Honduras; a David Gergen dialogue; and the legacy of Harry Blackmun.

FOCUS - ACQUITTED

JIM LEHRER: The Marine pilot trial: We start with reaction from the chief defense lawyer for the acquitted pilot, Captain Richard Ashby.

FRANK SPINNER, Pilot's Lawyer: The first thing I'd like to say is we appreciate the integrity and the conscientiousness with which the jury listened to this case and deliberated. We believe that their finding displays an act of courage and true integrity. We also, as Rich just said, express our heartfelt feelings for the families of the victims. They suffered a tremendous loss. As I argued in the closing argument, we said that this was a terrible, tragic training accident. That's been our position consistently all along. This has been a very difficult and challenging year for many people. We still face charges. Some of you may have heard about Ashby Two. Well, we don't want to comment any further because he still has those charges pending against him. That still lies out in the future. We don't know how that's going to be resolved. I will say this, however: I think it's time, now that the truth has come out in the courtroom, for the Marine Corps to look back at how this trial came about, and I think it's time for Congress, perhaps, to look at the Marine Corps once all these issues are resolved, and perhaps look at what went wrong. How is that the Marine Corps could claim that Captain Ashby committed an act of involuntary manslaughter, recklessness, and how is it that a jury could acquit him of those same charges and even lesser charges?

JIM LEHRER: Matthew Wald is aviation correspondent for the "New York Times." He covered the trial. Retired Colonel Scott Silliman is a former Air Force lawyer, now executive director of the Center on Law, Ethics and National Security at Duke University's School of Law. Cesare De Carlo is the Washington correspondent for three Italian national newspapers.

JIM LEHRER: Matthew Wald, for those of you covering the trial, was this verdict today a surprise?

MATTHEW WALD, New York Times: Well, Jim, not really. If you go back to last year when the Marine Corps held an Article 32, it's the rough equivalent of a grand jury proceeding. The presiding officer there said they could try to put the crew on trial, but there was so much fault all over, that the outcome would be uncertain. And then during the course of the trial, the prosecution put on several witnesses who ended up saying things favorable to the defense. The question was not whether they would send Captain Ashby to jail for 200 years but whether they would find any degree of negligence whatsoever and today they found no negligence, which means then it was an accident.

JIM LEHRER: That's the way the verdict should be read, right? There was no criminal negligence. It was an accident -- a training accident?

MATTHEW WALD: It was a training accident. It should also be read that there were many problems within the squadron. There were problems between the squadron, which was rotating in and out of Aviano, and the resident Air Force squadron which is there all the time. There were problems with the National Imagery and Mapping Agency, which made the charts which didn't show the ski lift system, and other problems elsewhere.

JIM LEHRER: Yes. All right, now, you were there -- some of the press were next door, is that right? And you saw it on closed circuit TV.

MATTHEW WALD: Yes.

JIM LEHRER: What could you see when the verdict was actually delivered? What was the reaction in the courtroom?

MATTHEW WALD: Well, the judge asked the defendant and his lawyers to stand and they stood there stiff and straight like Marines. And there was no impact visible from behind them. Ashby's sister let out a whoop and a little later on the sister of one of the German victims said that if it had been her -- she doesn't have a son -- if it had been her daughter, her daughter was found innocent with 20 deaths on her conscience, she doesn't think that she would have let out a whoop and she doesn't think she could have set foot in the courtroom. But there was a whoop. Captain Schweitzer, who in theory faces a court-martial in a few days, climbed over a couple of rows of chairs, hugged Asbhy's family, shook, and held out his hand across the bar and shook Ashby's hand. It wasn't a surprise but it was still a moment of drama.

JIM LEHRER: Schweitzer was the navigator, correct?

MATTHEW WALD: Right. He occupied the right seat. The people in the back seat really didn't have much view out the front. And they got cut out of this legal proceeding fairly early. But he was responsible for mission planning.

JIM LEHRER: I see. I just wanted to explain -- there were four crewmen in this airplane and Ashby was the pilot, Schweitzer was the co-pilot, and the two in the back. The two in the back are not going to be tried.

MATTHEW WALD: I'm losing him.

JIM LEHRER: I'm sorry. Can you hear me now?

MATTHEW WALD: Yes. I can hear you now. Go ahead.

JIM LEHRER: All right. I was just explaining there were four crew members on the plane. There was Ashby on the left side, Schweitzer, the navigator, then the two in the back.

MATTHEW WALD: Right. They're electronic counter measures officers known as ECMO's. And the object of this exercise was the pilot is somewhat like a bus driver. He is down there flying low - flying

between the mountains, ECMO One, in this case Captain Schweitzer did the mission planning and is supposed to figure out where they'll make each turn. The two guys in the back are working a panel of classified electronic beer that jams radars, does other electronic counter measures. On this particular flight they didn't have a whole lot of function because they were flying over Italy, not Bosnia.

JIM LEHRER: Yes. And so the charges against them have been dropped, right, the two in the back?

MATTHEW WALD: Yes, although one of them did provide a statement, which is the basis for the obstruction of justice count. He said that he was approached by Schweitzer and Ashby and they asked him what they thought he -- he thought they should do about the tape. He said, "I'd get rid of it." He later said on the stand the same thing which, in a way means that he is the origin of this obstruction. But apparently they did get rid of it; at least, they haven't turned it over as evidence. And that's the only charge really hanging over their heads at this point.

JIM LEHRER: That's the Ashby Two -

MATTHEW WALD: Correct.

JIM LEHRER: -- that Ashby's lawyer was talking about.

MATTHEW WALD: Correct. I think it's possible that may not come to a court-martial. The Marines may decide at this time to adjudicate that in a less formal way. I know that Spinner, the lawyer for Ashby, said that he would be asking the commanding general in charge of the Marine Forces Atlantic to dispose of that in something called a non-judicial proceeding, which could levy a variety of penalties against Ashby, including ending his career, but I'm not sure how much of a career he has flying the planes from here forward anyway.

JIM LEHRER: Yes. Okay. Mr. De Carlo, the official reaction from your government has been what so far?

CESARE DE CARLO, Italian Journalist: Shock, disbelief, anger. Direction of our Government was in line with the reaction of our public opinion. Nobody expected such a verdict. And by the way, this verdict couldn't come at a worse moment because our Prime Minister Valama came to Washington just a few hours ago, and tomorrow he will meet with President Clinton. I said nobody suspected such a verdict because the evidences in this case were considered overwhelming, the speed, the altitude, the recklessness of the flight, the maneuvering. The only question in Italy, and I said in Europe because the victims came from several countries in Europe: Germany, Austria, Belgium, Netherlands, Poland. The only question was how many years the pilot should get for this - for his behavior.

JIM LEHRER: So there is no question then that from your point -- not from your point of view but from reporting about the European point of view, that this Marine pilot committed a crime; it wasn't an accident?

CESARE DE CARLO: Yes. Last year an Italian prosecutor tried to prosecute the crew of the jet, of the American jet. But in order Italian court overruled him saying that the USA has jurisdiction on this matter on the basis of NATO Treaty. Now, our prime minister in his first reaction said, we must find out new ways to get justice.

JIM LEHRER: He said that today when he arrived in Washington a while ago.

CESARE DE CARLO: Just some hours ago. I don't see how the trial could be made outside of the USA. To my opinion now that trial in the USA is over. The problem is political. And politically there are a lot of dangers. As you maybe remember, last year immediately after the accident, some left parties in Italy and Germany posed the question of the closure of the base in Aviano.

JIM LEHRER: That's where this jet was stationed.

CESARE DE CARLO: Exactly. And the base in Aviano, as you know, is vital for NATO. From Aviano start usually the NATO missions for the Balkans. Now I -

JIM LEHRER: Both Bosnia and Kosovo flights come from Aviano.

CESARE DE CARLO: Come from Aviano. Exactly. I would say 80 percent, 90 percent of the flights come from Aviano.

JIM LEHRER: We'll come back to the political thing in a minute but I want to bring Colonel Silliman in here. Colonel, what would you say to Mr. De Carlo and the other Italians and Europeans? How would you explain this verdict to them?

COL. SCOTT SILLIMAN, [Ret.], Former Air Force Lawyer: Well, Jim, I think you have to separate the criminal trial from the fact that the United States still accepts responsibility for being the cause of the accident and the tragic death of 20 people. And there are claims procedures under the Foreign Claims Act and under NATO procedures for those families to be compensated as best they can for the deaths of their family members. But we're dealing at Camp Lejeune with a criminal trial and a standard under American law of proof beyond a reasonable doubt. And as your viewers may have read or watched the evidence unfold as the Government put on its case in the last several weeks, there were several aspects of the Government case that really weighed in favor of the defense. And they have already been mentioned. So it was not unexpected that the Government's case, as weak as it ultimately showed in the trial, would not result in an acquittal. And, remember, six of the juries, six of the eight, had to find beyond a reasonable doubt that Captain Ashby was culpably negligent, that he totally had no -- he was not informed whatsoever, took no consideration of the foreseeable consequences of an act. That's a very high standard, Jim. And the jury today in their verdict said they did not believe he was guilty of that standard.

JIM LEHRER: In other words, he could have been negligent or he could have been careless but where do you draw the line between that and a criminal -- saycriminal negligence, criminal carelessness, if there is such a term?

COL. SCOTT SILLIMAN: Well, Jim, the jury, when it came with a total acquittal also found that Captain Ashby was not guilty of simple negligence. And that would have been what we call the lesser included offense of negligent homicide, which the jury could have found him guilty of. They did not. So, as I interpret the verdict that came out today, that jury found that Captain Ashby did apparently the best job he could at handling that jet in the circumstances in which he faced. That may not be a popular finding, particularly in Europe, but nonetheless, as I've analyzed the facts and the evidence, I think it is a correct verdict.

JIM LEHRER: What would you say to anybody American -- any American included -- hey, wait a minute, this was a military trial; the jurors were fellow Marine officers of Captain Ashby's; what more could you expect than an acquittal, than standing up for one of your own?

COL. SCOTT SILLIMAN: Well, Jim, I think you have to understand and appreciate the Uniform Code of Military Justice and the military justice system as it's practiced in this country. I would suggest that it is one of the fairest systems of justice anywhere in the world. It has a great deal of procedural protections involved for an accused such as Captain Ashby. We can never jump to the conclusion that just because there is a tragic accident as occurred on the 3rd of February last year, that someone has to be criminally accountable for it. This is the same thing that happened in 1994 when the two Black Hawk helicopters were shot down. And there was a cry for somebody to be tried.

JIM LEHRER: Explain that. Tell us about that quickly. Remind us about that.

COL. SCOTT SILLIMAN: Jim, your viewers may remember that two Air Force F-15 fighter jets shot down two unarmed Black Hawk helicopters that were conveying United Nations and other personnel in Northern Iraq. And tragically over twenty people died in that accident. The F-15 crew, both the pilot who fired the missile and his wing man, Lt. Colonel May, neither one were charged. And the only trial that resulted was of Captain Wang, who was a controller on the Air Force AWACS aircraft, and he was acquitted. Now, that's not to say mistakes were not made in that situation or in the one we are dealing with today. But it means that to hold an individual criminally liable requires a higher standard than to acknowledge that the Americans were at fault.

JIM LEHRER: Do you see it that way? Do you understand what the Colonel is saying, Mr. De Carlo?

CESARE DE CARLO: No, I don't see the problem this way. I mean, the altitude of the plane the moment of the impact and with the cable of the gondola was under 300 feet - where -- instead of the minimum altitude of 2,000 feet; the speed was 624 miles per hour, instead of the 517, according to the regulation. The video camera disappeared immediately after the landing of the plane in Aviano. Apparently some maps were not found inside of the cockpit. I mean all this circumstances are oddly suspect.

JIM LEHRER: And, you believe - to go back to your point earlier -- that this thing is a long way from being over politically. You think -

CESARE DE CARLO: Absolutely.

JIM LEHRER: -- this could cause real problems between the United States and Italy.

CESARE DE CARLO: Absolutely. You can not forget that in Italy we have two Communist Parties - one is part of the majority coalition. In Germany, the foreign ministry -- justice official, leader of the Green Party is always been anti-NATO. So I think that the pressure for -- I don't say for closure of the base but for a revoke of the US landing rights will mount in the next weeks.

JIM LEHRER: All right. Well, Mr. De Carlo, Colonel Silliman, thank you, and Matthew Wald, who already had to go, I will say goodbye to him in absentia. Thank you all three very much.

UPDATE - REBUILDING HONDURAS

JIM LEHRER: President Clinton goes to Central America next week. He'll be discussing, among other things, how to help the countries torn apart by Hurricane Mitch. Charles Krause reported from one of them, Honduras, right after the hurricane. Here now is an updated version of his report.

CHARLES KRAUSE: Hurricane Mitch was a storm of biblical proportions, the most destructive natural disaster in Central America's modern history. For five days and five nights, there were torrential rains, flooding, and mudslides. And by the time it was over, Hurricane Mitch had caused extensive damage in

Nicaragua, Guatemala, and El Salvador. But it was Honduras -- already the poorest country in Central America, and one of the poorest countries in the world that was hit hardest. At the time we were there, fully three weeks after the storm, forensic teams were still searching for bodies buried in the rubble. Since then, the official death toll has climbed to 5600, while there are still many people missing. In Tegucigalpa, the capital, drinking water was scarce, and it's still scarce because the city's sewer and water systems were so badly damaged. It will be years before they're completely rebuilt. The storms also knocked out two-thirds of the country's roads and bridges, complicating the relief effort and paralyzing the Honduran economy. So last November, U.S. Ambassador James Creagan told us rebuilding the highway system was a top priority.

U.S. AMBASSADOR JAMES CREAGAN: The roads are critical. That's the immediate reconstruction need, and we will be helping to do that. Temporary bridges, fords through streams, that are good until the rainy season next June, and working on the roads themselves. It's amazing that -- you may have seen the North Coast - but there are areas where 30 or 40 kilometers of road have simply disappeared.

CHARLES KRAUSE: Finance Minister Gabriella Nunez told us Honduras had been set back 25 years.

GABRIELLA NUNEZ, Honduran Finance Minister: I would say we lost the whole country, not only the economy side, but the psychological situation with everybody in this country. So I would say we have

a lot of job, a lot of work to do in the next maybe 15, 20 years.

CHARLES KRAUSE: Beyond the highways, the bridges and the infrastructure that were destroyed, fully one-fifth of the Honduran population -- nearly a million four hundred thousand people -- were left homeless. For weeks, many of them were stranded, dependent on airborne relief missions for their food and water. Others were living in makeshift camps along highways near their homes, which were still too damp and caked with mud to re-inhabit. But the largest number of homeless were living in schools that had been converted into temporary shelters. Cramped and primitive, the schools felt like refugee camps and Honduras itself felt like a country that had lost a war. Hurricane Mitch wiped out 200,000 homes, and much of the money to rebuild them will have to come from international lending institutions like the Inter-American Development Bank in Washington. Within days after the storm, Enrique Iglesias, the bank's president, was meeting with Nunez and the other Central American finance ministers trying to assess what would need tobe done. Iglesias said that in all his years, he'd never seen a natural disaster more destructive than Hurricane Mitch.

ENRIQUE IGLESIUS, President, Inter-American Development Bank: It affected and destroyed the fiscal infrastructure and at the same time destroyed the economic infrastructure -- the plantations of bananas, of coffee, of agriculture and in general, damages that will take four or five years to really be revealed. So it is a catastrophe of major proportions in lives and in economic infrastructure, which is even sadder because this region has been for years subject to all kinds of problems. We have there dictatorships, we had there wars, confrontations for many, many years. When they started in the last 10 years to reveal their democracies, their economies, and we were starting to look, the thing was coming in the right direction, they had this catastrophe, particularly Honduras and Nicaragua.

CHARLES KRAUSE: Concern about the potential political impact of Hurricane Mitch was based on

Central America's history: the Somoza Government's failure to rebuild Nicaragua's capital, Managua, after the earthquake there in 1972 led directly to the Sandinista Revolution seven years later, and in 1974, three months after the last major hurricane hit Honduras, there was a military coup. So in the aftermath of Hurricane Mitch, Honduras' current president, Carlos Flores Facusse, became directly involved in virtually every aspect of the relief effort. He visited shelters for the homeless and met with a host of international visitors, like International Monetary Fund Director Michel Camdessus. Indeed, since November, Flores has been widely praised for his handling of the crisis and for acting to forestall the kinds of bottlenecks and corruption that many observers were initially concerned about. The U.S. was particularly worried and has been particularly pleased.

JAMES CREAGAN: We try to think about it in U.S. terms and try to think about dead and homeless in U.S. terms where you might have 20 to 40 million homeless, that kind of thing. It's really big and it will be tough, but there's a dedication on the part of Hondurans and I'll tell you, I have been impressed both by the Honduran public sector and also by the Honduran people out there.

CHARLES KRAUSE: Nowhere was the damage and the task facing Honduras more evident than in the

Sula Valley, where U.S. fruit companies own vast banana plantations and where 70 percent of the Honduran economy comes from. We overflew the valley with Jose Molina, vice president of the local Chamber of Commerce, who told us the business community in San Pedro Sula was anxious for the world to know the extent of the damage and what it would take to rebuild.

JOSE MOLINA: See all these bananas are starting now to turn yellow, so all the crop is completely

lost. You see that there's so much destruction here, that there's so much water still in these areas, because the two rivers converged, and the rivers, I believe, still go on into areas where crops were being planted, or where they had cattle.

CHARLES KRAUSE: Although most of the Sula Valley is used for agriculture, there are also factories called Maquila plants that manufacture mostly clothes for export to the United States. At the Continental Industrial Park, ten of those Maquila plants were flooded, and their workers left without homes and without jobs. In the days and weeks after the hurricane, without money and without shelter, the unemployed became increasingly anxious, forced to pick through mounds of discarded clothing, trying to find anything at all that was salvageable. [Speaking Spanish] One woman told us, "We're all in need, and we're all desperate." So far, though, the kind of social explosion that many feared would take place in the aftermath of Mitch has not occurred. But there is growing evidence that thousands of Hondurans have simply given up. According to the U.S. Border Patrol, in recent months more and more Honduran refugees have been caught trying to make their way illegally into the United States. The need to rebuild Honduras and to reactivate the economy quickly was recognized by Honduran and U.S. officials early on, both to avoid a political upheaval and the outflow of refugees that's now apparently begun. There was also a recognition that rather than just rebuild the country as it was, Mitch and the destruction it caused offered a tragic but long overdue opportunity for change. Last November, we talked to Luis Consenza Jiminez, who heads a Honduran foundation which promotes private enterprise.

LUIS COSENZA JIMINEZ: I think we have two choices. One is to rebuild the country as it was before the hurricane and the other one is to seize upon this opportunity and transform it into a country which is more equitable, in which we have greater opportunities--- everyone has greater opportunities. We do need international support obviously. But by and large, I think it's a task that falls upon our own shoulders. It's a question of whether we will have the will and determination to carry it through and seize upon this opportunity, as I said before, to make a difference in this country.

CHARLES KRAUSE: Cosenza and others were saying last November that one of the most critical choices Honduras would have to make concerned deforestation, which contributed directly to the flooding and to the high number of people who lost their lives during the hurricane. That's because as more and more Campesino families have moved from poor, rural areas to Tegucigalpa and other Honduran cities, they've cut down trees to build shacks, then built those shacks on desolate mountainsides or on flood plains along unprotected riverbanks.

LUIS COSENZA JIMINEZ: They end up living in areas that are very susceptible to flooding and we run into the problems that we have over here, so in a way, we have a double problem if you wish --deforestation on the one side that increases the possibility or probability of mudslides or large floods -- and on the other hand, we have -- because of our development -- we have people moving into the cities and having to live in areas which are really not suitable for living. So we have both effects combined and, therefore, we run into the destruction that we recently had.

CHARLES KRAUSE: At the Inter-American Development Bank, Enrique Iglesias told us there were also a host of other changes the reconstruction effort would have to address.

ENRIQUE IGLESIAS: Let me give you some examples. They have a lot of infrastructure, bridges, roads. Maybe they will have to study the new routes, or new technology, so that if something happened in the future, they have learned from the present crisis. In the case of housing where they had a tremendous problem, maybe the techniques of housing construction will be different in different places with

different structures. And then the environmental problem, everybody agrees that this disaster was widely, widely amplified because of environmental problems, deforestation. So let us try to make of this a major issue. The world has to help in these countries to do that, because not only are we defending the economy here or the social problems; we are defending the new democracies that took so much time, so much people dead, so much sad history behind, to endanger it now. So it's important for many, many ways.

CHARLES KRAUSE: When President Clinton arrives in Honduras, he's expected to visit a new bridge and to see other examples of what's been done with the millions of dollars the United States has so far donated toward the rebuilding effort. The President will also be told that Honduras is slowly beginning to claw its way back to life. But the task ahead would be daunting even for a developed country with far more economic and human resources. So aid officials will undoubtedly tell the President that Honduras will be dependent for many years on the goodwill and generosity of the international community and, most importantly, the United States.

JIM LEHRER: Still to come on the NewsHour tonight, the black upper class, and the legacy of Justice Blackmun.

DIALOGUE

JIM LEHRER: Now, a Gergen Dialogue. David Gergen engages Lawrence Otis Graham, an attorney and contributing editor at "US News and World Report." He is the author of "Our Kind of People: Inside America's Black Upper Class."

DAVID GERGEN: Lawrence, in the way you describe it in your new book, the black upper class in America has created a social world that is very unfamiliar to me, and I imagine to a great many others. For example, you've been a member of the black upper class all your life and you went to Princeton, you went to the Harvard Law school. You went to Wall Street to practice law. You married a woman with three degrees from Harvard. But you also were a member of Jack and Jill as a young boy. Your mother was a member of the Links and now as a man, you're a member of Goulet. What are those social organizations? They seem to have defined your life as much as Princeton and Harvard Law did.

LAWRENCE OTIS GRAHAM, Author, "Our Kind of People:" That's a good point, David, because it's very interesting how almost schizophrenic the existence of members of the black upper class really live, where a part of their life, for instance, myself, growing up in an all-white neighborhood in an affluent community in Westchester County outside of New York, where my weeks, Monday to Friday, were spent with the white children in my neighborhood, but on the weekends, my activities were with Jack and Jill, which is an old -- a very, very old organization founded in the 1930's, for black upper class children, to really network with each other and meet each other through different chapters around the country, and was founded by seven black women. Six were married to physicians, one was married to a banker. And their goal was really to create a black children's play group because they were dealing with the segregation that existed. But these were well-to-do blacks that knew that they needed to bring together kids that might have felt like outsiders when they were with other black children who might have been less privileged.

DAVID GERGEN: And there are chapters of Jack and Jill all over the country.

LAWRENCE OTIS GRAHAM: Right. There's 220 chapters of Jack and Jill around the country. And many of the most prominent blacks in America have their children enrolled in this group because it teaches them about their black identity. They perform a lot of public service on the weekends.

DAVID GERGEN: Now, that social networking includes fraternities and sororities, a very powerful part.

LAWRENCE OTIS GRAHAM: It includes sororities like AKA's and the Deltas that were founded at Harvard -- at Howard University, as well as the fraternities, Alphas, the Kappas and the Omegas. But even more than that, there are things like the debutante cotillions and the men's and women's social groups. Many people don't realize that the black experience, even though there's a public image, this sense that people are activists, but many people within the black upper class are very quiet about where they come from, what their background is. It's a group that really is obsessed with family background, as well as wealth, and to some extent, what we call the "Brown Paper Bag and Ruler Test."

DAVID GERGEN: Yes. Tell us about that test.

LAWRENCE OTIS GRAHAM: Well, that's something that goes back to slavery -- when blacks were divided into the dark skinned slaves that worked in the fields and then the light skinned slaves that worked in the house at the "prestige" jobs -- the butlers, the cooks, the family servants. And the rule was the Brown Paper Bag and Ruler Test was nothing more than you had to be lighter than a brown paper bag and your hair had to be as straight as a ruler. So it's an ugly and unfortunate way of looking at skin color and hair texture, but that was what the attitude of the black upper class has been and certainly had been.

DAVID GERGEN: And it is a dividing point there between the black upper class and other blacks. You said that the black upper class lives on the boundaries of two worlds: One, the black community and another the white community. It must be a complex relationship for the black community.

LAWRENCE OTIS GRAHAM: It's an awkward situation because the black upper class is not accepted by either group. Whites look at them and they say, "Well, you don't look like us. You don't have the same heritage as we do, so you're not a part of the group, even if you are well educated and have the money," because this is a group -- the questions they ask in the black upper classes, "Where did your grandfather go to medical school" or "What debutante cotillion presented your great grandmother?" It's a group that presumes that you have wealth, but they care about so many other things. But it's also outside of the black mainstream in that it's a group that sends their kids to special camps like Camp Atwater, an exclusive black camp that was founded in 1923. They make sure that their daughters are presented to society through specific cotillions like the Links or the AKA's or the Delta Cotillions. It's a group that embraced certain black boarding schools that were founded at the turn of the century, schools like Palmer Boarding School, Mather Academy in South Carolina. So even though they've also embraced other boarding schools like Exeter and Andover to an extent, for the most part, the group is very separate from the black mainstream.

DAVID GERGEN: And talking about black colleges, you said there were three that seemed to be in an upper tier, which were Howard and Spellman and Morehouse and there were others like the Harry and Fiske -

LAWRENCE OTIS GRAHAM: Fiske, right.

DAVID GERGEN: -- that were regarded as first- rate. But there was a difficult choice to be made by members of the black upper class about whether to go to a predominantly black -- historically black college or whether to go to a white university. You chose to go to a mostly white university like Princeton.

LAWRENCE OTIS GRAHAM: Exactly.

DAVID GERGEN: Tell me about that choice.

LAWRENCE OTIS GRAHAM: Well, and that choice was difficult for me because most of family friends and family members had all gone to black colleges. And certainly during my parents' generation, they grew up in the segregated South in Memphis, there really wasn't even a choice, even an issue. But when I was doing my research, and I spent six years on this book, I found that there were many, many blacks that were attending schools like Mount Holyoke and Wellesley and Harvard, going back to the turn of the century that were part of this black upper class. But there were only specific white schools they would go to, except when you get to the issue of passing, which I also address in the book, because the issue of racial passing was also performed and taken advantage of by some members of the black upper class because there were even people that graduated from Howard Medical School. I had interviewed the family of Hugh Price, who's the president of the National Urban League. And one of his uncles had graduated from Howard Medical School. But he decided on the day he graduated that he would rather live as a white man than live as a graduate of Howard Medical School.

DAVID GERGEN: When I was growing up in North Carolina in the 1960's in the Civil Rights period, there were many blacks who were active in that time on behalf of Civil Rights who felt that the black upper class wasn't there for them, didn't give them the kind of financial support, didn't give their energies. Was that an accurate portrayal? You said that there's been a complicated question about that.

LAWRENCE OTIS GRAHAM: It's been an awkward experience that I think when people look back at the Civil Rights Movement, because many people do say that the black upper class was very late to supporting it, the Civil Rights Movement. And I had this conversation with Julian Bond's mother when I was in Atlanta.

DAVID GERGEN: He was a member of the black community -- he has been a member.

LAWRENCE OTIS GRAHAM: A very, very prominent family, because the families I'm talking about are people that were millionaires at the turn of the century or who traced their lineage to the very first black US Senators from the 1870's or US members of the US House of Representatives, 1880's. And we were talking about the fact that blacks -- the black upper class financed a lot of the Civil Rights Movement. They were willing to write the checks to the NAACP -- people like Madam C. J. Walker, who was the very first woman millionaire in this country.

DAVID GERGEN: Very first.

LAWRENCE OTIS GRAHAM: Very first woman millionaire who happened to be black, though. And she built a magnificent mansion near the Rockefellers in Westchester County in New York, 20,000-square-foot mansion. But she gave thousands of dollars to the NAACP in 1910 to help them with their anti-lynching campaign. So very quietly the black upper class has always supported Civil Rights issues. But unfortunately they were not the ones that were out front getting their hands "dirty" or being chased by dogs or blown away by fire hoses. But at the same time, they served as the strategizers and people that helped motivate and mobilize the various groups. But once again, as today, many of them told me in my research, they do not want to socialize with working-class blacks. Interestingly enough, they don't even belong to the Baptist faith. Most blacks in this country are members of the Baptist Church, but this group historically has been members of the Episcopal or Congregational Church, and that's true certainly in all the 12 cities that I profile.

DAVID GERGEN: Fascinating story. Lawrence Otis Graham. Thank you.

LAWRENCE OTIS GRAHAM: Great to be here, David.

FINALLY - IN MEMORIAM

JIM LEHRER: Finally tonight, the legacy of former Supreme Court Justice Harry Blackmun, who died this morning. Kwame Holman begins.

KWAME HOLMAN: Harry Blackmun was born in Nashville, Illinois, and raised in the twin cities of St. Paul and Minneapolis. He attended Harvard University and its law school on scholarships. Blackmun practiced law for nearly 20 years before taking the job of general counsel for the renowned Mayo Clinic. In 1959, President Dwight Eisenhower tapped Blackmun to sit on the Eighth Circuit of the United States Court of Appeals. In 1970, he was President Nixon's third choice to replace Supreme Court Justice Abe Fortas. The Senate had rejected Nixon's nominations of two other Federal Appeals Court Judges, Clement Haynsworth and Harold Carswell, two Southern conservatives. A lifelong Republican, Blackmun was regarded as a conservative himself in his early years on the court. Still, he was a staunch defender of individual rights, and in 1973 Blackmun authored the High Court's decision in Roe Versus Wade, establishing women have a constitutional right to abortion. By the time Blackmun retired in 1994, he was considered the Court's most liberal justice. At a retirement news conference, Blackmun was asked about the importance of the abortion decision.

JUSTICE HARRY BLACKMUN: Roe against Wade hit me early in my tenure on the Supreme Court, and people forget that it was a 7-2 decision. They always typify it as a Blackmun opinion. But I'll say what I've said and many times publicly: I think it was right in 1973, and I think it was right today. It's a step that had to be taken as we go down the road toward the full emancipation for women.

KWAME HOLMAN: In 1995, Blackmun talked about his years on the Court in an interview with Harold Koh, one of his former law clerks, then a professor at Yale University Law School.

JUSTICE HARRY BLACKMUN: It's been a great experience to be here, and it's an experience, of course, that comes to very few persons. It came to me largely by accident. And -- I think the way it came to me in -- the fact that I was the third choice - was a good way - it always kept me a little bit on the humble side, to know that there are other factors in life, rather than my being "the" selection, which I was not. I look back on those three-plus decades on the Federal Bench and twenty-four years on the Supreme Court with great appreciation for the opportunity to have lived those days. As I say, it comes to very few. And there isn't any way to go out and acquire that experience. It comes to you largely by accident. And when it does come, I guess one does the best he can. But he has to be content with it -- he is not going to grow rich on the Federal Bench; he's not going to be a multi-millionaire or -- but there are other satisfactions in life, I think. And, for me, this was one of the greatest that I could have anticipated.

SPOKESMAN: Thank you very much, Mr. Justice.

JUSTICE HARRY BLACKMUN: You didn't ask me to wiggle my ears.

SPOKESMAN: Will you do it?

JUSTICE HARRY BLACKMUN: I can.

SPOKESMAN: Okay.

JUSTICE HARRY BLACKMUN: And that has been a great attribute for little children because if they come to visit the chambers and I wiggle my ears at 'em, they're much more fascinated with that than they are with what's hanging on the wall or the history of the Court, or all those things. So, I wiggle my ears in farewell.

KWAME HOLMAN: Harry Blackmun was 90 years old.

JIM LEHRER: Elizabeth Farnsworth in San Francisco has more.

ELIZABETH FARNSWORTH: Now, the views of two constitutional law professors: Kathleen Sullivan, the newly-appointed Dean at Stanford University Law School, and Douglas Kmiec of Pepperdine University. Kathleen Sullivan, how should Justice Blackmun be remembered?

KATHLEEN SULLIVAN: Well, two ways, Elizabeth. One story today is the story of Justice Blackmun, the man, and I think you could see from that interview that that was a very humble, a very modest man of small stature and grandfatherly demeanor, someone who is known for the Court as greeting everybody by name -- the cafeteria workers, the Supreme Court barber - taking his law clerks to breakfast every morning. He was a person who cared deeply about other people and other people's families and he tried to bring that modesty and humility to the Bench. But the second story today is really Justice Blackmun, the Justice. And that's a story of a remarkable change, a kind of intellectual conversion over his 24 years on the Bench. He came in with President Nixon expecting him to be a moderate conservative, tough on crime, in favor of states' rights, not quick to create new individual liberties against the Government. But he changed over the years. In the 1970's, he provided the crucial vote for a state's rights opinions; by the 1980's he provided the crucial vote to overrule that opinion and give more power to Congress. In the 1970's, he didn't think that you should have an equal protection right to have more money in urban schools to fund the educational costs of tax-poor districts. By the 1980's, he provided the crucial vote to say that Texas couldn't deny an education to the children of illegal aliens in Texas because that was to deny them a fundamental right and create an underclass that could never be undone. And most strikingly, of course, he wrote "Roe Versus Wade". He came on to the Court as someone no one expected to create new paths in the law and yet "Roe Versus Wade" is perhaps going to be remembered for some as a heroic gesture and for those others, as an act of infamy. It was the case that decided that women had a right to abortion. But I think what is important to remember is that even that decision was written in the spirit of modesty I tried to describe, the modesty of the Judge. It was described by others as arrogant. He tried to make it a modest opinion, an opinion that says that he looked at scholarship and we don't know when life begins. In that case, let's let individuals one by one, family by family, with the guidance of their own doctors, priests and rabbis make their own decisions on this difficult and intimate issue -- a position he carried out later in a dissent from the Georgia Sodomy Case, saying that he thought intimate relationships were a matter of privacy, not governmental control.

ELIZABETH FARNSWORTH: Kathleen Sullivan, let me interrupt you just one second so we can get Doug Kmiec in here on the question how he should be remembered. Do you agree that these are sort of the two broad areas -- his personal qualities, the ways that he changed with the cases and the very important things he did as subheads there?

DOUGLAS KMIEC: Dean Sullivan has done a nice job of portraying Justice Blackmun in that way. He did come to the Court from a modest background, originally in Minnesota. He went to Harvard on a scholarship. He had substantial judicial experience on the Eighth Circuit. I think if you looked at his lower court opinions, one already could identify, and I'm not sure Richard Nixon picked this up -- one could already identify a willingness to create new judicial rights. And, of course, that did manifest itself in the "Roe V. Wade" opinion. And, unfortunately, that opinion will overshadow in many people's memory, the nature of Justice Blackmun. While he could be grandfatherly and wiggling his ears, as your setup piece shows, many people are just profoundly concerned that there was no role for a Justice of the Supreme Court to, in essence, create a liberty that is not found in the text of the Constitution and that cuts so profoundly against the grain of science and morality -- and over a century of state prohibitions protecting unborn life. Justice Blackmun did evolve. He evolved from somebody who -

ELIZABETH FARNSWORTH: Tell us why, by the way? Why do you think he evolved? Why do you think he changed in the ways that he changed?

DOUGLAS KMIEC: You know, he came, Elizabeth from the Mayo Clinic and his experience with giving great deference to institutions. And gradually I think his focus became one of looking at the Constitution as a way of protecting the outsider. How do you protect the alien? How do you protect the Native American? How do you protect the prisoner? Justice Blackmun used to say the Constitution is a document by which we can evaluate how we treated people who are not entirely like ourselves. And so there was great humanity in this man for people who otherwise might be invisible to the American context. And, hence the tragedy of abortion is that he didn't see the very invisibility of the unborn children that he was legislating against.

ELIZABETH FARNSWORTH: Kathleen Sullivan, what is your interpretation for the ways that he -- how do you explain how he changed?

KATHLEEN SULLIVAN: Well, I think that the experience of seeing the cases involving civil rights and civil liberties that came before the Court, understanding the arbitrariness he came to locate in the death penalty system, seeing the persistent problem of racial antagonism that led him to support affirmative action and say in order to get beyond racism, we must take race into account - I think it was experiencing a new set of cases, not the kind he'd seen as a tax lawyer, not the kind he'd seen on the Eighth Circuit, that changed his mind, and, as Doug Kmiec says, made him very conscious of his role of as a protector of what he called the little people, the dispossessed, the less powerful, illegal aliens, racial minorities, teenagers. And, of course, the great irony is that those who criticize him think he wasn't sympathetic enough to what some view conscientiously as the littlest people of all, fetuses. But I think the important thing to remember about Justice Blackmun is that he didn't just lead with his heart. He was a man of meticulous craft, a mathematician, a tax lawyer. He tried always to back up his compassion and caring with a grounding in the materials of the law.

ELIZABETH FARNSWORTH: And Doug Kmiec, what do you think his key impact on the Supreme Court was? Was it, as some people said today, his concern for what some people refer to as real people and the effect of decisions on them?

DOUGLAS KMIEC: Well, I think that will be a long-lasting impact. But one that can't be overlooked is that he was quite willing to use federal power. And of course the abortion decision uses federal power to set aside state laws. But also in the context of Federalism and the structural features of the Constitution, it was Justice Blackmun who really opened the door to expansive federal power to regulate the states even in areas of traditional state functions. And that is a long-lasting impact on our federal system, one, in fact, the Court is still working its way out of today.

ELIZABETH FARNSWORTH: Kathleen Sullivan, would you agree with that as a key impact?

KATHLEEN SULLIVAN: Well, I don't think that's going to be so important. And I would also disagree that Justice Blackmun was the first to carve out new rights from the Constitution. The Supreme Court had established a right to privacy long before with precedents going back to the beginning of the century that said parents have a right to decide how to educate their children and with the 1960's decisions saying that people have a right to their own access to birth control. So, he didn't make anything up out of whole cloth when he wrote "Roe." I do think there's one other area that Justice Blackmun did play a key role in and that is the protection of the right to advertise as an aspect of free speech, a right that may become increasingly important in the information age as new technologies make advertising show up in ever new places.

ELIZABETH FARNSWORTH: And Doug Kmiec, just, we have a few seconds left -- anybody like him on the Court now?

DOUGLAS KMIEC: Well, the most liberal Justices on the Court now are probably also people who were appointed by Republicans, Justice Stevens and Justice Souter, for example. In terms of the parallel to Justice Blackmun, I think they probably fit some of his profile.

KATHLEEN SULLIVAN: He was the -

ELIZABETH FARNSWORTH: Well, Doug - go ahead.

KATHLEEN SULLIVAN: He was the last of the great Warren Court Justices, the great liberals like Brennan and Marshall. There will be probably no one quite like them for quite some time to come.

ELIZABETH FARNSWORTH: Well, thank you both very much.

DOUGLAS KMIEC: Good to be with you.

RECAP

JIM LEHRER: Again, the other major stories of this Thursday: A Marine Corps pilot was acquitted of criminal charges in the deaths of 20 Europeans when his plane severed an Italian cable car line last year. And 15 Rwandan rebels were tracked down and killed. They were suspected of murdering eight foreigners, including two Americans, in Uganda on Monday. We'll see you online and again here tomorrow evening, with Shields and Gigot, among others. I'm Jim Lehrer. Thank you and good night.