The NewsHour with Jim Lehrer

JIM LEHRER: Good evening. I'm Jim Lehrer. On the NewsHour tonight, we have our News Summary; then, four perspectives on the just-completed term of the U.S. Supreme Court; a report on what it took for the House and Senate to pass different versions of Medicare reform; the weekly analysis of Mark Shields and David Brooks; and a conversation with Evan Thomas, author of a new book on John Paul Jones.

NEWS SUMMARY

JIM LEHRER: There was new movement today on the road map to Middle East peace. Israeli TV and the Palestinian Authority struck an agreement, in principle, on a troop pull-back. The Associated Press reported the Israelis would withdraw from the entire Gaza Strip. They also promised to halt the targeted killings of militants. In return, the Palestinian Authority promised to go after militants planning attacks. In Washington, Secretary of State Powell welcomed the news.

COLIN POWELL: In a couple of days, security officials from both sides, commanders from both sides will get down to the details of how it will be accomplished and how it will be monitored over time. But I think this is a very positive development. It reflects the kind of movement that the president and the other leaders called for at the Sharm al- Sheik summit and at the Aqaba summit and it is the kind of steps we were calling for in order to get started with the road map.

JIM LEHRER: Separately, the founder of Hamas, Sheik Ahmed Yassin, said his group had made a decision on a three-month cease- fire. He stopped short of formally announcing it. That could happen this weekend. Meanwhile, two members of Hamas were killed when Israeli troops raided a village in Gaza. They were looking for an alleged bomb maker. An Israeli soldier also died in the shooting. Two more Palestinians were killed in a separate clash nearby. In Iraq today three American soldiers were wounded in shooting and grenade attacks in and near Baghdad. More soldiers were hurt when their truck apparently hit a land mine. American troops mistakenly shot and killed an 11-year- old boy near Baghdad. Also today, American forces searched by ground and air for two missing U.S. soldiers north of Baghdad. They arrested six Iraqis in the disappearance. In Washington, at the Capitol Building, Defense Secretary Rumsfeld was asked if the U.S. faces a guerrilla war.

DONALD RUMSFELD: I don't know that I would use the word. There were something in the neighborhood of 100,000 people turned out of their prisons. Those people of out there. They're doing things that are unhelpful to the Iraqi people. There's also no question but that there are leftover remnants of the Saddam Hussein regime that are doing things that are against the coalition.

JIM LEHRER: Later, Democrats on the Senate Armed Services Committee announced they would investigate prewar intelligence on Iraqi weapons. The panel's ranking Democrat, Carl Levin of Michigan, said Republicans refused to conduct a broad review. The U.S. House and Senate passed major Medicare legislation overnight. Both bills add a drug benefit and create new roles for private health plans. Both cost $400 billion over 10 years, but they differ widely in the details. The Senate version passed easily. The House bill squeaked through by a single vote. We'll have more on this later in the program. Former Senator Strom Thurmond died last night at the age of 100. The Republican from South Carolina served eight terms, longer than any senator in history. For years, he symbolized southern opposition to civil rights, and in later years, he made efforts to gain black support. Kwame Holman narrates our report on his life and career.

KWAME HOLMAN: When James Strom Thurmond was born in 1902, Mark Twain was still alive; Teddy Roosevelt was president. Raised a Dixie Democrat in Edgefield, South Carolina, Thurmond won his first local election at the age of 25 and became state senator at 30. During World War II, Colonel Strom Thurmond, on the right, participated in the D-Day invasion of Normandy.

STROM THURMOND: We have just begun to fight.

KWAME HOLMAN: In 1948, then- governor Thurmond ran for president on a segregationist agenda, taking on the civil rights movement.

STROM THURMOND: The negroes here have as good opportunities and better than they would have in any other country in the world.

KWAME HOLMAN: Thurmond won four southern states. In 1954, he was the first- ever write-in candidate to win a U.S. Senate race. Three years later, Thurmond staged a record filibuster, talking 24 hours to delay passage of a civil rights bill. In 1964, he became one of the first in a long line of southern democrats to switch to the Republican Party.

STROM THURMOND: The Democratic Party has forsaken its people to become the party of minority groups, power- hungry union leaders, political vultures and big businessmen looking for government contracts and favors.

KWAME HOLMAN: Over time, while Thurmond defended his segregationist past on states' rights grounds, he sought to reach out to the black community, and was the first southern senator to hire an African American staffer. A fitness buff, Thurmond politically was staunchly conservative, pro-defense spending and anti- communist. On this program in 1977, Thurmond argued against the Panama Canal Treaty, on grounds the Panamanian government was friendly to Cuba.

STROM THURMOND (1977): I would fear, if this treaty gets in the hands of panama, after several years it would end up in the hands of the communists. I think that's very dangerous. We cannot take the chance. We must protect the security of the United States and the free world.

KWAME HOLMAN: Last night, Thurmond's former Senate colleagues lined up to pay tribute. As one Democrat put it: "A giant oak in the forest of public service has fallen."

JIM LEHRER: A national do- not-call list opened today for people trying to stop unwanted sales calls. In the first 14 hours, some 635,000 phone numbers were registered. That can be done online at the web site www.Donotcall.Gov and consumers west of the Mississippi River are also able to register by phone at: 1-88-382-1222. That option will be available nationwide next month. Beginning October 1, telemarketers could be fined up to $11,000 for each violation. Pollsters, nonprofit organizations and political groups are exempt. Americans spent more last month, but not much more. The Commerce Department reported today consumer spending was up one-tenth of a percent in May, a little less than expected. On Wall Street, the Dow Jones Industrial Average lost 90 points to close at 8989. The NASDAQ fell more than 8 points to close at 1625. For the week, the Dow lost 2 percent; the NASDAQ, 1 percent . That'sit for the News Summary tonight. Now it's on to: What the Supreme Court did about several things; what Congress did about Medicare; shields and Brooks; and a conversation about John Paul Jones.

FOCUS - BIG DECISIONS

JIM LEHRER: Summing up the Supreme Court term. Margaret Warner is in charge.

MARGARET WARNER: It was an historic term for the court with landmark rulings on affirmative action and a Texas sodomy law issued as the court wrapped up this week. All in all the court handed down 72 rulings addressing wide ranging issues from free speech and states' rights to privacy and the death penalty. We get an assessment of the term now from four constitutional law professors: John Yoo of Boalt Hall at the University of California-Berkeley; he once clerked for Justice Thomas; Kimberly Crenshaw of UCLA and Columbia University Law Schools; and Kathleen Sullivan, dean of Stanford University Law School, and we expect to be joined shortly by Doug Kmiec, who is dean of Catholic University Law School, and is stuck in traffic.

John Yoo, beginning with you, as you look at this term as a whole, before we get into all the individual cases, do you see any kind of broad theme?

JOHN YOO: I think this term really underscored again how powerful this court is not just in the world but in the lives of everyday Americans; they decide a case like affirmative action, the rights of gays in society, whether you can look at pornography on the Internet in libraries, the sweep of the decisions is really amazing, and if you think about the three biggest issues in society these days: affirmative action, abortion, and gay rights, they - this court has settled those issues for our society for the next few years at least.

MARGARET WARNER: Kathleen Sullivan, what broad theme do you see?

KATHLEEN SULLIVAN: Well, Margaret, I would suggest that the court is really quite a moderate court or a centrist court, that in fact expresses a great deal of the values expressed elsewhere in society, rather than seeking to change those values. In the landmark decisions upholding affirmative action, as long as it's not too mechanical a use of race to provide the leaders for future positions in America, the court helped to legalize practices that many institutions of higher education have been involved in for the last generation, and had relied on to produce a much more diverse leadership in our society, and the landmark decisions striking down the Texas sodomy law the court just legalized and brought cultural legitimacy to the view that many Americans would think ought to be part of our constitutional freedom, and that is that government has no business being in the bedrooms of consenting adults engaged in non-commercial, intimate sexual and loving activities. I would say that the big theme of the court is that it's a centrist, moderate court that expresses the values of most Americans.

MARGARET WARNER: We have just been joined by Doug Kmiec and we were talking about a broad theme that emerged from this term and whether you saw one and Kathleen Sullivan just said she saw the court as to some degree reflecting the consensus, emerging consensus in American society on some issues. What did you see?

DOUGLAS KMIEC: Well, I do think the court is following the election returns, as they say, and I'm not sure that's a good thing. One of the things that I think troubles us in the legal profession and in the legal academy is the extent to which this court is willing to set aside precedent. Justice Kennedy was particularly critical of Justice O'Connor in Monday in Michigan affirmative action cases for not following strict scrutiny as it has been applied in the cases before, but then Justice O'Connor could rightly say the same thing to Justice Kennedy on Thursday when he wrote the majority opinion in Lawrence -

MARGARET WARNER: The Texas sodomy case -

DOUGLAS KMIEC: The sodomy case, which basically did not give any meaningful deference to the Texas legislature and the people of Texas and the choices that they made about public morality.

MARGARET WARNER: And, Ms. Crenshaw, Professor Crenshaw, do you see that, a sort of throwing off of precedent, or what theme do you see?

KIMBERLE CRENSHAW: Well, I see a court that decides that they're off precedent in somewhat unpredictable ways but I also quite frankly see an activist court; this is a court which over the last ten years has more or less overturned a quarter of all the cases that have been overturned in the entire two-century history of the court, so it's not just precedent that the court is setting aside; it's also setting aside legislation. But I think the thing that is most striking for me in this court is that although it's a moderate conservative court in many ways it positioned itself as a repudiation of the Warren court, both the Gruder decision as well as the Lawrence decision had sounds of Warrenesque kinds of aspirations. Justice O'Connor in Gruder talked about -

MARGARET WARNER: Gruder - you mean one of the - let me just interrupt -

KIMBERLE CRENSHAW: The Michigan affirmative action case - talked about diversity not solely as a benefit to Michigan Law School but also as a benefit to society at large to open up pathways to leadership and yesterday Justice Kennedy talked about privacy not only simply to limit the government but to prohibit the demeaning message of regulating one's private sexual intimacy so these are broad themes that really sound very much like a Warren Court coming out of a very conservative court's mouth.

MARGARET WARNER: What's your thought on that, Professor Yoo?

JOHN YOO: I think anyone who thinks this is a conservative court is smoking something, and under Lawrence Versus Texas you can probably smoke it pretty soon legally as long as you do it in your own House without hurting anybody because this court has done things which the Warren Court never dreamed of doing and actually established the position of our country in these three significant issues: affirmative action, abortion and gay rights in a way the Warren Court could never have hoped and never have tried to and Justice Brennan and Marshall never came this close to achieving the results that this court has done, so I really don't think this is a conservative court at all, despite the fact that seven of the Justices had been appointed by Republicans, it's not the kind of court conservatives would want.

MARGARET WARNER: So, Kathleen Sullivan, what happened to the conservative court, or are we just focusing on these decisions this week, and there's a different trend in other cases?

KATHLEEN SULLIVAN: You can see the moderate nature of this court in other areas, Margaret. This year there were no big wins for speaks claiming free speech rights under the First Amendment. The court instead upheld a cross burning law as long as the cross burning was shown to have been done with an intent to intimidate, so Ku Klux Klanners didn't have free speech; right-to-lifers lost the free speech case saying that they wanted - in which the court said they couldn't contribute directly through corporate treasuries to candidates but it was okay to limit campaign speech in that way, and the courtalso upheld an Internet - an Internet smut filtering law, saying that when the government gives money to public libraries, it's allowed to tell them that they have to put Internet filters on so that porn or indecent material can't be accessible to children in those libraries, and they upheld that. So this is a court that upheld the number of laws claimed to violate free speech, and in response to Professor Yoo, you can have an activist conservative court too. Over the last few years, as Professor Crenshaw pointed out, the court has struck down numerous civil rights statutes. And what was very significant this term is that the court showed that it's not just reflecting the state's rights ideology of the secession of South or segregation of South that the late Strom Thurmond represented, it's not just going to stay states' rights forever; rather, this court, this year, this term the court upheld for the first time in many of these civil rights cases a provision of the Family Medical Leave Act even if it's applied against the state of Nevada saying that, yes, Congress may still pass civil rights laws that lead to civil damages actions against the states as long as it's correcting real discrimination by the states such as the sex discrimination that denied women and others the right to look after ailing family members and children. So the court has been activist in a conservative direction and Professor You might be disappointed that this term had upheld a civil rights action by Congress, but I think that just shows that the court's in this to apply the law, to call it as it sees it, and to uphold some federal laws and strike down others, depending on whether they fit the authority in the Constitution for Congress to enforce civil rights.

MARGARET WARNER: Okay. Weigh in this debate, Doug Kmiec. Activist or not, conservative or not?

DOUGLAS KMIEC: Well, I think the word "conservative" has two meanings: It has a political meaning, which I don't think is a relevant one. The relevant one is do you conserve legal principle, do you conserve legal precedent? So let's take Dean Sullivan's proposition about this case dealing with family medical leave. It is a radical shift in direction not because of the outcome. The Rehnquist court had no brief for gender discrimination, no brief for gender stereotype. Indeed, the chief justice writes eloquently about the importance of getting past gender stereotype. The criticism of the case is that it didn't follow the requirements of the law.

MARGARET WARNER: And just explain, this was a case in which the court ruled that in fact a state could be sued by a worker under this federal law that mandates family and medical leave.

DOUGLAS KMIEC: That's right. And as Dean Sullivan said, there has been a very strong tendency in the Rehnquist Court to promote state sovereignty and to build up the interests of the states as an independent political entity.

MARGARET WARNER: In fact, they've called it the Rehnquist revolution.

DOUGLAS KMIEC: They have called it that. But that law's in place; those precedents are in place, and in order to hold a state liable you have to have a strong evidentiary record that they've been discriminating. The problem, Margaret, in these cases is that there was no evidentiary record hardly at all; there was just these generalizations about gender stereotype in a case where Congress was really extending a family benefit, which is a good benefit but had nothing to do with whether or not the state was a discriminator in the area of civil rights.

MARGARET WARNER: Professor Crenshaw, you started this argument but I'm sure you have more to add. What do you think about this, is it really a conservative court or not?

KIMBERLE CRENSHAW: Well, I think that the debate about whether the Rehnquist Court is conservative or not might be distorted somewhat when we focus simply on the civil rights cases and the federalism cases. If we expand the frame and talk about the criminal law cases, I think there's just no question that we're dealing with a court that is permitting certain things in the criminal process that the Warren Court would probably not have permitted or at least would have done so with significant dissent. Remember, this is the year where California's three strikes rules were upheld by the Supreme Court -- individuals who stole golf clubs and videotapes for children were basically given life terms. In other states they would have gotten between eighteen months to a few years and the court essentially said that there was no constitutional protection against these kinds of grossly disproportionate sentences. This is also a court that permitted a death penalty defendant who was not given the death penalty because of a hung jury and instead was given a mandated life term. Later he was able to appeal his case. He got a new trial. At that point he was given the death penalty and the court said there was no problem with double jeopardy. So some of the basic criminal law cases I think make the case a little bit better. But there's another point that I think does it even more. A lot of these cases are cases where there is no strong liberal voice actually denouncing some of these developments: In cases limiting prisoners' rights to visit with their family, in cases involving the suggestion of race-based rejection of fair housing developments. These were 9-0 decisions, so at least Brennan, Justice Marshall would have sounded the liberal voice. So this is moderate to conservative. This is not a fully balanced court.

MARGARET WARNER: John Yoo, what do you make of that argument, it's that the fulcrum has shifted, there's no counterweight on the liberal side to the Scalia, Thomas and to some degree Rehnquist strong avid conservative?

JOHN YOO: I don't think they need to have one because they won all the cases this year. I mean if they were losing, then you would get liberal voices. Justice O'Connor was the voice of the liberal wing in these cases, and Justice Kennedy was, in all the cases that they won.

MARGARET WARNER: But what about Professor Crenshaw's point that if you look at, say, the criminal law cases, upholding three strikes, upholding all the Megan's laws, it wasn't a great year to be a criminal before the Supreme Court.

JOHN YOO: I think that's fair. And I think also, the explanation for it, that the court is in a way a mirror of public opinion is fair. I think on that area, the society has to come to a consensus that we're done expanding criminal procedure rights and we're going to stop them. I don't think there's been a serious retrenchment or rolling back of them. I think it's just stopped. And I think that's... the question to ask is: Is the Supreme Court really the body that we want to be interpreting public opinion and enforcing it on the society? What makes these nine, relatively older isolated justices the people we want to make these basic social decisions for us and imposing them on us?

MARGARET WARNER: So, Kathleen Sullivan, briefly, do you think that's what the court is doing now?

KATHLEEN SULLIVAN: No. The court is finding just as much constitutional basis for a liberty right that encompasses the right to intimate association in the bedroom through the liberty clause and the commitments of the founders as it is in finding a state right against civil rights damages actions against it even if federal court. These are things that the text of the Constitution doesn't speak to, but the principles of the Constitution do. And the court is not just reflecting public opinion in a vacuum. It is doing it moderately and carefully with reference to the Constitution and its values.

MARGARET WARNER: Your thought on that.

DOUGLAS KMIEC: Well, I wish that was the case. I think the criminal law cases are a bit more mixed. I mean in the last day of the term, the court invalidated a California statute that extended the statute of limitations in child sexual molestation cases, a very hot topic, a very important topic. Hundreds of cases today in California, in Dean Sullivan's state are being dismissed with the practical consequence of that. I think the court is sensitive by and large to the legislative process, but it has these notable exceptions, and the notable exceptions dominated this term suggesting that we've got a group of people who may not have retired physically, but to some degree they've retired intellectually. They've been dealing with each other so long, that they no longer defend the basic precepts and principles of basic doctrines of constitutional law, such as things being reserved to the states, such as health, safety, morals and welfare. Texas may be wrong in their given case; they may be right. We disagree on that. It should be argued not before the Supreme Court of the United States but in the Texas legislature.

MARGARET WARNER: Let me ask you very briefly, John Yoo, the fact that no one has announced retirement yet, do you think that means they all plan to be here next term?

JOHN YOO: I think if no one retires within a week or two from now, it'll be until 2006, probably, before you have a retirement.

MARGARET WARNER: Kathleen Sullivan?

KATHLEEN SULLIVAN: No retirements anytime soon.

MARGARET WARNER: And Professor Crenshaw?

KIMBERLE CRENSHAW: I have to demur on that one. I can only presume that we haven't heard of a retirement yet, we're not likely to hear one right away.

MARGARET WARNER: And Professor Kmiec?

DOUGLAS KMIEC: It's probably unlikely but I think the last cases suggest that the people who are going to be considered are going to be looked at much more carefully on all sides.

MARGARET WARNER: All right, thank you professors all -- very interesting. Thanks.

UPDATE - MEDICARE RX

JIM LEHRER: Now, Congress approves big changes in Medicare. Kwame Holman reports.

SPOKESMAN: On this vote, 76...

KWAME HOLMAN: The historic votes both came after 1:00 this morning, first the Senate, then the House. A few hours later, President Bush congratulated Congress for pushing through the most sweeping expansion and overhaul of the Medicare system in its 38-year history.

PRESIDENT GEORGE W. BUSH: I'm also pleased by the votes last night in the United States Senate and the United States House of Representatives to improve Medicare and to extend prescription drug coverage to our seniors -- a stronger Medicare system that gives our seniors more choices and better benefits has been a central priority of my administration.

KWAME HOLMAN: Congressional Republican leaders who moved the two bills celebrated.

SEN. BILL FRIST: Tonight we are one step closer to providing real health care security to seniors all across the nation.

KWAME HOLMAN: Many Democrats, however, were not nearly as pleased.

REP. CHARLES RANGEL: This is the first step that has been specifically designed not to reform the Medicare system as we know it, but to dissolve it.

KWAME HOLMAN: The House and Senate bills both would provide $400 billion over 10 years to fund prescription drug coverage and other benefits to 41 million retirees in the Medicare system. Seniors would pay annual deductibles of $250 under the House bill; $275 in the Senate version. Both plans estimate monthly premiums at $35. The House bill covers 80 percent of annual drug costs up to $2,000; the Senate, 50 percent of the costs up to $4,500. Coverage would stop for drug costs between $2,000 and $4,900 in the House bill, and between $4,500 and $5,800 in the Senate bill. Coverage would resume for so- called catastrophic costs, paying 100 percent of drug costs above $4,900 in the House bill, and 90 percent of costs above $5,800 in the Senate bill. But both bills also contain a controversial option that would allow seniors to buy drugs through new private insurance plans beginning in 2006. The Senate's private insurance provision had bipartisan support and the bill passed easily. But the House bill relies much more heavily on private insurance plans that would compete directly with traditional Medicare. Democrats opposed it vehemently. And the bill barely squeaked by because 19 Republicans also voted no. Indiana's Mike Pence spoke for fiscal conservatives who fear adding prescription drug coverage to the Medicare program will explode its costs.

REP. MIKE PENCE: This would be the biggest new federal entitlement since 1965 when Medicare was created. Medicare currently costs seven-and-a-half times what this Congress said it would cost when they invented it. Let us not in this Congress today sow the seeds to destroy the foundation of a free-market system by creating a universal drug benefit in Medicare.

KWAME HOLMAN: Meanwhile, Democrats hammered away that the private insurance provision is a veiled attempt to destroy traditional Medicare.

REP. RICHARD NEAL: Tonight, let us stand with history, stand with Roosevelt and stand with Lyndon Johnson on what Medicare has done to make us a much more equitable society. What a great achievement it is. Reject the notion tonight of where they are going to take us, and that is down the road to privatization of Medicare.

KWAME HOLMAN: That drew this from Budget Committee Chairman Jim Nussle:

REP. JIM NUSSLE: Well, that is great, but it is not 1965. Medicare is going bankrupt. Tax cuts didn't cause that. Health care costs are out of control. The reimbursement system under Medicare is broken and it is not paying the bills. Hospitals are closing. Doctors are leaving rural areas or not taking Medicare patients at all. And the Democrats have done nothing about it for the past 30 years since they did pass Medicare in 1965.

REP. ANNA ESHOO: How dare my colleagues on this side of the aisle say that the Democrats haven't done a damn thing. I regret those words in the record.

KWAME HOLMAN: In fact, Democrats tried to offer a plan similar to the Senate Medicare bill, but weren't allowed by the Republican majority. So Massachusetts' Ed Markey aimed his ridicule at the Republican bill.

REP. ED MARKEY: Watch out, grandma. Watch out, grandpa. The GOP is selling snake oil off the back of a wagon, and, boy, do they have a prescription for you, further weakening the foundation of Medicare for the seniors who need it most. This is a black day for Medicare. You know, GOP used to stand for Grand Old Party. Now it stands for get old people.

KWAME HOLMAN: Louisiana's Billy Tauzin, who helped write the Republican Medicare plan, responded.

REP. BILLY TAUZIN: I'm offended that anyone would come to this floor and accuse anyone in this House of wanting to get old people. Do you think for a second you love your moms and dads any more than we love ours? That's the sort of un-statesmanship that should never enter the halls of this House. There's no one in this House loves their mother more than I love my mother. I challenge you on that, sir. She's a three-time cancer survivor. She's 84 years old and God bless her, she won first place at the senior Olympics this year in shot put. If you give her trouble, I'll sic her on you.

KWAME HOLMAN: All day, Republican leaders said the vote would be close. After some reported arm- twisting Republicans prevailed by one vote. On the other side of the Capitol, the tone was decidedly quieter. But in the Senate too, fiscal conservatives warned against a Medicare bill that offered a new prescription drug entitlement but little cost-saving reform. New Hampshire's Judd Gregg:

SEN. JUDD GREGG: And if this bill were to pass in its present form or anything near to its present form, it would fundamentally extinguish the torch which the Republican party has allegedly, and I thought pretty effectively, carried for years, which was the torch of spending responsibility. That's why I came here, as I said when I began my statement, I came here to try to do something about controlling the rate of growth of spending in the federal government, especially in the area of entitlements.

KWAME HOLMAN: For their part, liberal Democrats, such as North Dakota's Byron Dorgan, lamented that seniors still would have to pay too much out of their own pockets for drugs and further privatization of Medicare would only make things worse for them.

SEN. BYRON DORGAN: Because some people don't like the Medicare program they say, "well, let's do this in the private sector." The private sector is the sector that wouldn't insure old people in the first place, by the way, which is the reason we had to have a Medicare program developed by the Congress.

KWAME HOLMAN: Smoother sailing for the Senate bill was made possible earlier this week by a compromise amendment on the issue of private health plans. Senators agreed to split $12 billion, half to bolster private health plans-- so-called Preferred Provider Organizations-- and half to improve chronic care for seniors using traditional government-run Medicare. Democrat John Breaux:

SEN. JOHN BREAUX: If one side had their way they would do it all with preferred providers. If our side perhaps had their will, it would provide all the money to be put back into traditional Medicare, but we all know that in a divided Senate that's not possible. This is a good amendment, it's an important amendment. We are on the edge of an historic day and being able to enact real Medicare reform with prescription drugs for all of our nation's seniors. We cannot let that goal be lost while we fight over how to divide extra funds. I think this division is as fair as it can possibly be and I would urge all of our members to be able to vote for it.

KWAME HOLMAN: Because the House and Senate bills contain major differences on the issue of private health plans, work to meld them into final prescription drug legislation could extend into the fall.

JIM LEHRER: Still to come on the NewsHour tonight: Shields and Brooks, and John Paul Jones.

FOCUS - SHIELDS AND BROOKS

JIM LEHRER: Shields and Brooks in fact are syndicated columnist Mark Shields and David Brooks of the Weekly Standard.

Mark, on the Medicare reform, you heard what Kwame Holman said, that the differences are great. Are they politically that great; do you think something can be worked out? What's going on here?

MARK SHIELDS: I think I wouldn't argue against the president's ability to forge a compromise, given his ability to steam-roll it roll through the tax cut differences between the house and the senate. But there are real differences between the two bodies, Jim. I think that this is essentially a political document that works very well in the short run because it doesn't take effect until 2006. So we can say, "Go home, you're going to get prescription coverage." It gets everybody through 2004.

JIM LEHRER: Both Democrats and Republicans.

MARK SHIELDS: Except it takes an important issue off the table that had been an advantage to Democrats. And George Bush can say he's delivered on something. The problem is it's directed for seniors. Billy Tauzin's 84-year-old mother. Ed Markey's mother back in Malden, Massachusetts. The reality is, Jim, seniors like predictability and they like simplicity. That's how it works with Medicare. This, unfortunately, has complexity and unpredictability, and I think that could be a long- term political boomerang.

JIM LEHRER: How do you see the future of this thing?

DAVID BROOKS: Well, I think something's going to pass almost certainly.

JIM LEHRER: It's definitely going to pass?

DAVID BROOKS: I think it is too attractive for too many people. The interesting thing politically is the bush administration is for this thing against the opposition of every conservative health care expert in the country, as well as many conservatives in Congress. New York Teddy Kennedy is for it against the opposition of a lot of liberals. Now, how can Bush and Kennedy both be for it-- and I can tell you they have not talked about it together -- it is not something they cooked out amongst themselves. Well, the answer to that is, they're making a gamble. The Bush administration is making a gamble that the small reform elements will be so effective they will grow and grow and grow, seniors will opt into these things and that there will be some sort of Medicare reform. The Kennedy gamble that she's private elements will be ineffective and seniors will not choose them and therefore, they will shrink and what you will essentially get is a $400 billion Medicare thing, which is pretty good from a Democratic perspective. And so that's the calculus both sides are making. If you look at the history of these entitlements, Kennedy's almost certainly right, that this thing will be just be a big spending program with very modest reform.

JIM LEHRER: And it'll just take till 2006 before we get there.

MARK SHIELDS: I would say this -- Ted Kennedy, when you put $400 billion on the table, Ted Kennedy is a realist as a legislator and I think his guiding principle in many of these instances, that the perfect is the enemy of the good. And I think he rues the day to this moment when as a young senator from Massachusetts and pushing for health care, President Richard Nixon became the only president in our nation's history to offer and advocate universal health coverage with employees paying the premiums, employers paying the mandated premiums. And Democrats turned it down at the time. And I think Kennedy --

JIM LEHRER: Because they didn't like the program.

DAVID BROOKS: Yeah, one final thing and it could be going through Kennedy's mind is the Republicans will likely pick up seats in the Senate because there are a lot more Democrats up and the president may win a big re-election. So whatever we passed then will be much worse from his point of view than what we've passed now. And from the Republican side, they smell a landslide, if they can get tax cuts, this, Iraq, they're just sitting pretty.

JIM LEHRER: Okay. To the Supreme Court, the discussion that Margaret just ran and Doug Kmiec's final comments, David, that whatever else is going to come out of this particular court and this particular term and these decisions, particularly on sodomy and on affirmative action this week is there's going to be new severe political scrutiny of all new nominees to the Supreme Court. Do you agree?

DAVID BROOKS: Well, it was already going to be at an epic level and now it's Olympian, or whatever is more than epic. What strikes me about the court, is especially on social issues, basically they become the spokesmen and the expression of the East Coast establishment. And this is at a time when political power is moving South and West. But the place they always come down is the place you would come down if you were sitting in Lagulu Restaurant on Madison Avenue in the upper East side of Manhattan and polled the restaurateurs. That's where the supreme court is, they are the spokespeople for the establishment.

JIM LEHRER: No matter where they came from?

DAVID BROOKS: Yes. If you just look at the sodomy decision, the affirmative action decisions, the abortion decisions -- to me they represent where the East Coast establishment is. They do not represent where public opinion is in the South and in parts of the West. And I think there's going to be a great deal of sense in those communities that they represent elite opinion. They don't represent our opinion, and that they're not fairly - they're not unfairly interpreting the Constitution, they're expressing one set of values which don't happen to be ours. Now, this may not be a majority thing that the people in the South and the Southwest are going to say, but they're going to be angry about it.

JIM LEHRER: Well, how does that jibe with first Sandra Day O'Connor's from Texas and Arizona --Kennedy is from northern California. So you don't mean this literally.

DAVID BROOKS: I don't mean it literally. I mean there is an educated elite in this country and they all went to law schools, they live in and socialized in Washington, D.C., and you know...

JIM LEHRER: Do you see it that way?

MARK SHIELDS: I see it somewhat differently. And far be it from me to take on David when he's stirring up trouble on the right. I always want to encourage that in any way I can. And so for that reason I think David deserves a full and ample hearing.

JIM LEHRER: Which we just gave him.

MARK SHIELDS: I have to say this, Jim. Conservatives have to be upset, upset at the White House. The White House was absolutely silent on the sodomy decision. So were the conservatives on Capitol Hill. And in addition to, that the president applauded the balanced and careful decision that Justice O'Connor wrote on the affirmative action case. Now, if I were a cultural conservative and counted on President Bush to lead that kind of revolution and restore those two additional values to the senate piece of our national life, I would have felt let down; there's no question about it.

JIM LEHRER: We have a conservative sitting here. Do you feel let down?

DAVID BROOKS: I supported the sodomy case. I mean I'm pro-gay rights, if you want to put it that way. I was offended by the affirmative action case. I feel left down in this sense: For some conservatives, there's a cultural war going on in this country, the culture is being sapped by assault on different sort of values and they want political leaders to fight that. And they feel the non-Democratic Supreme Court is deciding all of these issues and they want their elected representatives to stand up and be counted. The Republican Party, the elite, has decided swing suburban voters do not want a cultural war. It doesn't matter what side you're on, they just don't want the war, so let's stay out. So they are being let down.

MARK SHIELDS: I think there is a political calculus in the decision not to trumpet these issues. But I think in addition to, that Jim, the sodomy decision really did... the court was not leading public opinion; it was reflecting I think widespread public opinion. I really do.

JIM LEHRER: Not just among the East Coast elite?

MARK SHIELDS: Not just the East Coast elite. In 35 years, when people have known gays, gay colleagues, relatives or whatever. I mean I think that is... it just led to an acceptance, a tolerance level, a total revisiting of that whole area. And the Texas law essentially, all it did was it forbid or prohibit an act that was totally legal between consenting non-commercially involved heterosexuals, but only illegal and criminal if performed between consenting noncommercial homosexuals.

DAVID BROOKS: The conservative argument would be the one Clarence Thomas used, I'm ...saying I'm against these silly laws. But let's settle it in democratic process and that's always been the conservative position on abortion. If we could settle it in the democratic process, we could reach closure. It would not be settled outside the purview of public opinion and public democracy.

JIM LEHRER: But back to my original question, do you believe as a result of what happened, there are going to be really... you called them epic, Olympic, but do you agree with that, I mean fights over potential Supreme Court Justices are going to be severe now as a result of this, more so than usual?

MARK SHIELDS: I would say this, Jim, that Democrats best be leery. I think the Democrats have a very good chance of defeating George Bush in November, 2004. I think that the landslide that the Republicans or conservatives are sniffing right now is somebody cooking in the next apartment, but it's not a landslide brewing. I think the Democrats have to be concerned that they don't emerge, whoever the nominee is that George Bush offers, like a coalition of special interest groups, that they look like the captive of all these interest groups that immediately come out against whoever the nominee is. I think that's the downside for the Democrats. The downside for the Republicans is that they do appear intolerant, or they yield to the voices of intolerance.

JIM LEHRER: But the conservatives who are upset, they're going to put a lot of heat, are they not, on the president to put somebody in there who is more culturally on the right side of the cultural war?

DAVID BROOKS: And I think that he will fail because the administration realizes this election is going fob settled in the suburbs, and mainstream suburban voters just don't want that.

JIM LEHRER: There were three political deaths this week of southern politicians, Lester Maddox, Maynard Jackson and then today Strom Thurmond. Any thoughts, Mark, about what their careers, not their deaths, obviously, what their careers say about changes in southern politics over the years?

MARK SHIELDS: Well, profound, obviously. I mean Strom Thurmond was there for the whole ball game. Strom Thurmond ran for president in 1948. The Democrats won just by the fact he carried four states. He took on Harry Truman who integrated the armed forces. And he made a political career of Hubert Humphrey who emerged from that convention as a leader of the city rights Democrats. And the Democrats learned a lesson from that thing, was that they didn't need the South. They could win the presidency without the South. It was a terrible lesson for Democrats to learn because since that... so Strom Thurmond, in a strange way, made possible the modern Republican Party of leading ex-Democrats, Dixiecrats, to the Republican Party and making them the majority party in the South, therefore the majority party in the Congress, and therefore the prohibitive favorite in national elections.

JIM LEHRER: And of course Maynard Jackson symbolized the new Democratic Party of the South and must have the black vote or they don't exist. They just have black --

DAVID BROOKS: The big story is you look at the migration of peoples in the early parted of the 20th century huge migration of middle class African Americans from the South up North seeking opportunity. People like Maynard Jackson come in. Now at this present moment there's a huge migration of middle class African Americans from the North and Midwest to Atlanta and to North Carolina, to Florida, back to the House, but to upper class neighborhoods, but which are still segregated, maybe voluntarily, but still segregated.

MARK SHIELDS: The South's resurgence was possible because of the Civil Rights Act, which unshackled the South from that terrible burden of segregation and that terrible curse of segregation. I went to Martin Luther King's funeral and I was privileged to be at the Ebenezer Baptist Church and I walked to the burial place where he was buried three and a half miles. And you walk by and the long line of people, you walked by the city hall of Atlanta, Ivan Allen was then the are mayor, the mayor of the city too busy to hate. Everything was at half mast, the flags, the city hall was draped in black, across the street was the statehouse of Lester Maddox, the governor, standing in the door with armed state troopers and National Guardsmen at the ready because that was the attitude and the flag at full mast. That was two Georgias and Maynard Jackson was the one who made the modern Atlanta. He took it to the suites from the streets.

JIM LEHRER: And we have to go. Thank you both very much.

CONVERSATION

JIM LEHRER: Finally tonight, another conversation with an author of a new book, and to Terence Smith.

TERENCE SMITH: The book is "John Paul Jones: Sailor, Hero, Father of the American Navy." The author is Evan Thomas, the assistant managing editor of "Newsweek" Magazine. Welcome to the broadcast.

EVAN THOMAS: Hi, Terry.

TERENCE SMITH: Tell us a little about John Paul Jones. We've heard so much lately about the founding fathers, he was sort of a founding fighter.

EVAN THOMAS: He was. We had a lot of good thinkers and visionaries, but we didn't have too many fighters in the revolution and we needed some. He was about it, in the navy at least, in the earlier years. He was phenomenally brave, headstrong, and he knew to take the fight to the enemy, instead of waiting for the British to attack us, he knew to attack Britain.

TERENCE SMITH: Right, now put him in context. He arrives... he's born in Scotland but he arrives in this country just a couple of years before the revolution begins.

EVAN THOMAS: Having killed a man. His real name is John Paul. He arrives here incognito. He killed one of his own crewmen. According to Jones, the man impaled himself on Jones' sword. He was a rough, tough guy. He was a good sailor. He wanted to be a Virginia gentleman. That didn't work out. His lady love ran off with Patrick Henry, so he had to join the navy. He joined the brand new continental navy, this sort of pitiful little force. The British had 68 ships of the line; the new colonies had zero. So he joined this kind of little navy and made the most of it.

TERENCE SMITH: You mentioned that notion of taking the fight to the enemy. He took it across the ocean.

EVAN THOMAS: He understood the value of psychological warfare to use a term that was not used back then. There was no way we were going to beat the Royal Navy, they were the best on the seas. But we could scare the British people. Now, I don't want to make him out to be a terrorist in the modern sense, because he didn't believe in killing citizens. But, he sure believed in scaring them. And so he took the "ranger," his beautifully built New Hampshire sloop into a British port to try to burn it. Unfortunately, his crew had other ideas, and while Jones was spiking the guns, they went and got drunk in the local pub. Jones' cover was blown, he was chased out there, they only burned one ship. But he was undaunted, sailed across to Scotland to try to kidnap an earl, the Earl of Selkirk. The earl was gone. Jones ended up stealing his silver. It all sounds like kind of a joke, except that it had a big psychological impact on the Brits. They were scared to have this pirate Paul Jones running around raiding their shores, attacking the earl and stealing his silver.

TERENCE SMITH: And did it suggest to them that maybe keeping these colonies might be more than it was worth the price to pay?

EVAN THOMAS: Right, that's the point, that it was by the sort of guerrilla warfare chipping away at them. It was too high a price, and even though we couldn't win conventional battles, we could hurt them in this way.

TERENCE SMITH: Where did you find all of the documentation, which you have so much of in this book, of him, his life and his great battles?

EVAN THOMAS: Well, most of it's in the Library of Congress. He wrote a lot of letters, like all smart famous men, he left a big paper trail. He wrote journals and letters. The letters were repetitive in a sense, he was always complaining about the poor treatment that he had gotten by his colleagues. John Paul Jones is bit of a crank and a complainer. But he also vividly describes his battles and pretty accurately. There were other contemporaneous accounts.

TERENCE SMITH: Now you do describe in detail, and it's riveting, the great battle that took place between John Paul Jones and his ship, the "Bonhomme Richard" and a great British ship of the line, the "Serapis."

EVAN THOMAS: The "Serapis." Well, on a moonlit early evening in September, Jones, he thought he had a 4-2 advantage actually going in. He had four French ships in his flotilla. Only when Jones raised a signal to form line of battle the four French ships all sailed into the opposite direction and Jones was left alone with the "Serapis". At first the British captain sailed circles around him, then punched so many holes in the "Bonhomme Richard" in Jones' ship, that it literally had holes coming in and going out. But Jones, fierce fighter that he was, realized that had his only hope was to lock the "Serapis" in a death grip. And he, Jones personally, tied the bough strip of the British ship to his own mizzen mast. They used grappling hooks...

TERENCE SMITH: Locking it together?

EVAN THOMAS: They locked it in a death grip andfought bitterly -- a real bloodbath. I mean, the casualty rates on both ships were 50 percent, which in that year was a very high toll. And famously, the British captain asked him if he had struck, if he had surrendered and Jones was alleged to have said, "I have not yet begun to fight." I don't think he actually said that. That story was repeated by his first lieutenant 45 years later, but he did say something defiant. He said something like, "I'll sink before I'll surrender."

TERENCE SMITH: Put this in context of the revolutionary contest that was going on there and what the impact was political and military.

EVAN THOMAS: Well, it was important because there weren't too many victories. In 1779, we were losing. The British were in the South, taking Charleston, moving north. The French, our allies, had a failed invasion of England... failed because the French sailors got sick, so there wasn't any good news. We needed some good news and this was very good news, indeed, and they made Jones a hero. And in enhanced Jones' reputation as the pirate Paul Jones, this rebel who could actually defeat the British navy.

TERENCE SMITH: And he was quite the toast in France.

EVAN THOMAS: He was.

TERENCE SMITH: He went to Paris after that.

EVAN THOMAS: He loved that. I mean, he was a great ladies' man, and the heroism he got allowed him to pursue countesses and chambermaids, and at one point in the Paris opera, they tried to lower a laurel wreath on his head with this wooden contraption. He loved every minute of this. He loved every minute of this. Louis XVI, made him a Chevalier. He had lots of girlfriends and lots of hero worship.

TERENCE SMITH: Well, then measure his impact as a great fighter for the American Revolution.

EVAN THOMAS: It's not so much that he was a great... he was not a fleet commander. He won a couple of notable victories. It really was the psychological impact, this idea that we could fight, that we dared to take on the Royal Navy and to raise the cost of taking on the Royal Navy. And he was later made a hero, I mean, navies need heroes and they need myths, and although John Paul Jones is buried and forgotten in an obscure French grave, Teddy Roosevelt a century later had him dug up and buried at the Naval Academy in a very grand marble temple to remind the midshipmen of the heroes who came before them.

TERENCE SMITH: So he got his glory then at the beginning of the 20th century, but he didn't get his glory. Victories or no, he didn't get everything he wanted.

EVAN THOMAS: It crept up. I mean the 19th century romantic novelists discovered him, Melville, Dumas, Kipling later on. James Fennimore Cooper, because he was a romantic figure, so he was in fiction in the 19th century. But then the United States government, Teddy Roosevelt, President Roosevelt made him a real hero right after 1900.

TERENCE SMITH: And that's because he, Teddy Roosevelt, needed a hero?

EVAN THOMAS: PR, it was a publicity stunt, if you will. He wanted Congress to give him money to build a big fleet so he wanted to make America a great naval power and he needed a hero, and so they dug up John Paul Jones, a flotilla of battleships, brought him back to Annapolis and built him this kind of fantastic marble tomb and there he rests today.

TERENCE SMITH: And to this day, the midshipmen have to recite his alleged formula...

EVAN THOMAS: Yes they do.

TERENCE SMITH: ...For an officer and a gentleman?

EVAN THOMAS: It's actual was a fake... not his words, made up by a charlatan author. To their credit, the Naval Academy, it took them about 105 years, but this year in reap points which is the manual for plebes, they are correctly attributing the words not to John Paul Jones, but to this other author, Buehl, so he didn't say what these midshipmen have been memorizing all these years, but he did say something about being an officer and a gentleman. He believed that our officers should be more than just fighters; they should be gentleman as well.

TERENCE SMITH: Well the book is "John Paul Jones," the author, Evan Thomas. Evan, thanks so much.

EVAN THOMAS: Thanks, Terry.

RECAP

JIM LEHRER: Again, the major developments of this day. Israel agreed in principle to withdraw from the entire Gaza Strip; the Palestinians would take control of security there. At least three U.S. soldiers were wounded in Iraq, and the military said another American was killed yesterday. And the U.S. House and Senate passed major Medicare legislation overnight. Both versions add a drug benefit and create new roles for private health plans.

JIM LEHRER: And again, additions to our honor roll of American service personnel killed in Iraq. We add them when the deaths are official, and photographs become available. Here, in silence, are two more.

JIM LEHRER: A reminder: Washington Week can be seen on most PBS stations later this evening. We'll see you online and again here Monday evening. Have a nice weekend. I'm Jim Lehrer. Thank you and good night.