The MacNeil/Lehrer NewsHour

INTRO

ROBERT MacNEIL: Good evening. Echoes of Sunday's presidential debate continued to top the political news today. Challenged by Mondale, President Reagan amended his position on Social Security. Democrats began saying Mr. Reagan's age was a factor in this election. Salvadoran guerillas accepted President Duarte's call for peace talks next week.President Reagan said the U.S. would consider more aid to help Israel meet her economic crisis. Jim?

JIM LEHRER: Both of our focus stories tonight flow directly from Sunday's presidential debate. There's the question of the Supreme Court and the kind and quality we may get under presidents Mondale or Reagan. Our special issue and debate segment on the subject looks at it from both the legal and political perspective. Focus story number two is the new age question -- President Reagan's age. Also tonight we have a pre-World Series baseball feature, featuring novelist Bill Kinsella.

MacNEIL: President Reagan today amended his position on Social Security after a fresh challenge on the campaign trail from Walter Mondale. The President ruled out any cuts or changes in Social Security benefits for current recipients or for people who retire in the future. Mondale made his challenge in Cincinnati, saying he would reject any attempt to reduce Social Security, and called on the President to the same.

Vice Pres. WALTER MONDALE, Democratic presidential candidate: In the debate, the President swore again that he will not cut Social Security for those now on Social security. It's almost the identical pledge he made four years ago. I have two things to say: first, it's the same promise he made in 1980. He broke that promise in 1981, and now once again his most trusted advisors are hatching plans to cut Social Security. Now, this is not just a question about whether current beneficiaries will continue to have Social Security. His only pledge was to people now on Social Security -- the question is, will he keep it when he didn't last time? But there's a deeper question about what he intends to do with the rest of you. I don't know which is worse -- cutting benefits for people who are on Social Security, or asking people to pay into Social Security their whole lifetime and not give them any benefits when the time comes to retire.

MacNEIL: As soon as the President heard news accounts of that speech, he sent White House spokesman Larry Speakes out to say this to the press: "I have just spoken with the President, and Mondale ought to be ashamed. He's out to frighten the elderly. The President will never stand for reduction in Social Security benefits for anybody who is now getting it, or future recipients." When reporters pointed out that went further than the President had in Sunday night's debate, and was therefore a new policy, Speakes said, "Perhaps it is." In the debate, Mr. Reagan limited his commitment to present recipients.Here's what he said.

Pres. RONALD REAGAN [October 7]: With regard to Social Security, I hope there will be more time than just this minute to mention that, but I will say this: a President should never say "never," but I am going to violate that rule and say "never." I will never stand for a reduction of the Social Security benefits for the people that are now getting them.

MacNEIL: On Capitol Hill, Christopher Matthews, a spokesman for House Speaker Thomas O'Neill, said that Mr. Reagan's latest assurances are as phony as a three-dollar bill. He said the President had broken promises in the past not to cut Social Security, and the latest statement has taken us back to where he was before. Jim? Too Old to Serve?

LEHRER: And the issue that many thought would never get raised was on the front page today. Said The Wall Street Journal in its lead story, "The President's rambling responses and occasional apparent confusion injected an unpredictable new element into the race." Said Democratic campaign official Tony Coelho on the front page of The Los Angeles Times: "He looked old and acted old, and he is old." At the White House this afternoon, a reporter shouted it directly to Mr. Reagan.

REPORTER: Mr. President, the Democrats say your age is now a legitimate issue in the campaign. Do you think it ought to be, sir?

Pres. REAGAN: I'll challenge him to an arm-wrestle anytime.

LEHRER: Judy Woodruff takes the age story from there. Judy?

JUDY WOODRUFF: Jim, the age issue has been lingering in the background behind Ronald Reagan ever since the 1980 campaign, when some Democrats tried to suggest that he was too old for the job. But the months of vigorous campaigning he put in and his performance in the debate against President Carter that year laid most of those concerns to rest.

Candidate REAGAN [1980 debate]: I would like to have a crusade today, and I would like to lead that crusade with your help, and it would be one to take government off the backs of the great people of this country, and turn you loose again to do those things that I know you can do so well, because you did them and made this country great.

WOODRUFF [voice-over]: Since he was elected, the President has carried out a public schedule that makes him appear above normal physically and mentally for a man of his age. While he has been criticized for working a nine-to-five day, the White House has made sure that he appears in good health, by publicizing the fact that he chope wood and rides horses at his California ranch, as in this campaign commercial, and by having him take part in public activities that stress his vigor. His doctors have pronounced Mr. Reagan fit since he recovered from the 1981 assassination attempt, but there have been moments, during televised news conferences for example, where the President seemed less alert and less in control of the subject matter than at other times.

REPORTER: You think that would be -- would have to go before there would be any settlement?

Pres. REAGAN: Now, we talked about -- wait a minute, which country, again, are we talking about?

WOODRUFF [voice-over]: Just two months ago, reporters noticed when, in trying to answer questions from the press, Mr. Reagan seemed to need a little coaching, when he was asked about the stalled arms talks.

REPORTER: Mr. Reagan, is there anything you are doing to get them to the --

Pres. REAGAN [August 1984]: Uh --

NANCY REAGAN: We're doing everything we can.

Pres. REAGAN: Doing everything we can.

WOODRUFF [voice-over]: But the age question arose most pointedly during Sunday night's debate, when on several occasions, the President was noticeably less quick on his feet than his opponent.

Pres. REAGAN [October 7]: The system is still where it was with regard to -- the, with regard to the, the progressivity, as I've said --

WOODRUFF: To take a closer look at this issue of the President's age, we have asked former Democratic presidential nominee, George McGovern, and Republican Senator Richard Lugar of Indiana, to join us. Senator Lugar chairs the National Republican Senatorial Committee and he's with us tonight from Capitol Hill. Mr. McGovern, let me ask you first of all, what impressions did you come away with after watching the debate Sunday night?

GEORGE McGOVERN: Well, there's no question Walter Mondale showed a much greater degree of alertness, of information on the issues, of capacity to recall the points that he wanted to make. I frankly thought the President appeared confused, he was inarticulate, he was forgetful. He manifested many of the qualities of a person who's getting older. This isn't a criticism of the President; we all want to be old -- that's one thing we all share in common, and I honor the advanced age of the President. But to be realistic about it, it's a handicap in terms of handling the pressures of the White House, and I thought the President clearly demonstrated that in this 90-minute test on Sunday night. He just wasn't up to the occasion.

WOODRUFF: Senator Lugar?

Sen. RICHARD LUGAR: Well, Judy, it seems to me it's clear that the press has been after President Reagan for years. The press conference is not his best format; everybody's tried to prove that once again on this occasion. But to imply that in some way the President lacks physical vigor and good health is just simply nonsense. People coming in and out of the White House throughout this campaign have testified again and again how strong and vigorous he is. I think we're just simply facing the fact in all of this discussion that people found Vice President Mondale to be alert and they liked his vigor and they thought he was back in the ring. But the same Newsweek poll that's been quoted so widely on who won the debate also indicates that by a full 20%, the people agree with what President Reagan stands for; they think he's more likeable; in short on all the things on which people vote in the elections, the President came out well ahead.

WOODRUFF: All right, let me ask you, Senator McGovern, on this. It's one thing to be off, to have an off night, as many in the White House are now saying the President was, but it's something else for one's age to catch up with one. Can't you make a distinction between the two?

Sen. McGOVERN: Well, let me put it to you this way. I'm not questioning the President's physical vigor. I'm sure that he probably would do well in an arm-wrestling contest, as he said here earlier today. But that's not really the test of one's mental alertness or your capacity to remember the fundamental facts you need to have in mind. Let me just illustrate what I'm talking about. A brief time ago, reporters were startled to hear the President say that he didn't know you were unable to recall nuclear missiles once they're fired from submarines. He was under the impression that you could fire those missiles -- which incidentally, comprise our main nuclear force -- and if you made a mistake, you could recall them. Now, it's impossible for me to believe that the President could be in the White House for four years and believe that to be the case. I'm sure that he has had times in the past when he knew that our main nuclear force was on submarines and that you couldn't recall those missiles. He must have just forgotten it. Or else he confused it. It is true that you can recall bombers once they've been launched, and I suspect maybe he remembered a briefing where they had told him that, and confused the bombers with the submarines. But this is a fundamental lapse in the man who has his finger on that nuclear trigger, and it's that kind of forgetfulness. It's not a criticism of getting old, it's simply a recognition that all of us slow down a little mentally when we get older.

WOODRUFF: Senator Lugar, would you agree that it's a fundamental lapse for the President to forget information like that?

Sen. LUGAR: Well, I'm not certain what the President actually forgot, you know, in the course of four years it's very possible to pick up small peccadilloes here and there. What I think is true is that the ability to govern is not necessarily the ability to debate, to be a quiz kid in 2 1/2-minute answers and this sort of thing. The American people are not going to judge the capabilities of people, nor whether they're right or wrong on the basic issues, in this kind of a format, even if they're pressed to by the circumstances of campaigns. I would just simply say the President's record for good decisions in national defense as well as in economic affairs is obvious, the record of improvement of the country is obvious; and these are the fundamental things that we're going to vote on.

WOODRUFF: Senator McGovern, doesn't the Senator have a point there, that, you know, there have been occasional moments of forgetfulness and so forth, but the American public time and again, or at least the polls indicate, seems to be willing to accept that in their president.

Sen. McGOVERN: Well, I think the American people like President Reagan. I think they respond to him personally. I think he's an amiable, attractive man; even his opponent, Mr. Mondale, said he likes him as a person. This has nothing to do, though, with the question we're talking about here tonight. Is it a fact or isn't it, that most people as they get older tend to slow down a little? I'm sure all of us see that this president is already, right now, the oldest man ever to sit in the White House. By the time he leaves that office, if he's reelected, he'll be approaching 78 years of age. Now, there's no question in my mind that that's a gamble; whether the American people want to take it is up to them, but I think they ought to be aware that the President is not as sharp as 78 as he was at 58.

WOODRUFF: Well, he's 73.

Sen. McGOVERN: But I mean at the end of his term, we're looking at four years down the road.

WOODRUFF: What are you suggesting? I mean, should we have a cutoff point after which someone shouldn't be permitted to run for president? I mean, is that what you think would be --

Sen. McGOVERN: No, I wouldn't set an arbitrary age. I think we have to make a judgment on each individual.But what I have seen in this President is not simply a lapse in this debate on Sunday. I've seen numerous indications over the last four years where I thought he was confused, where he was forgetful. He himself said at the end of the debate, he was so confused he wasn't quite sure how to make his concluding speech. And I think it was clear from that speech that he was confused. So we have to judge each case on the basis of the evidence.

WOODRUFF: Senator Lugar, it is true that the President's own aide, Michael Deaver, has said that the President falls asleep in Cabinet meetings, for example.

Sen. LUGAR: Well, Mike Deaver once made that unfortunate comment, which I presume probably was fictional. The facts of life are the President gets up early, he works long and hard, despite all the foolishness about a nine-to-five day at the White House and all that sort of thing. I think it's just important to say that presidents make basic decisions on taxes, on national defense, on lots of things that are important to the American people. They really don't have to be that quiz kid mentality and sharpness to do that. As a matter of fact, the judgments they make are historically based and will be historically remembered. I think the judgments the President is making now are ones that the American people, by a fairly large majority, like, and that is why even if he did not appear on occasion to be as physically vigorous as they would like, they still would like for him to continue in the job.

WOODRUFF: Do you think that we should just have -- is there any age after which you think we should say a president shouldn't be permitted to serve? Do you think it should just be as long as someone can run for office?

Sen. LUGAR: That is exactly where I would leave it. The people are the best judge of the type of person, the quality of person, the type of opinions that person holds. And I think we ought to leave it at that way. If we commit arbitrary judgments of this sort, I think we're going to err.

Sen. McGOVERN: I agree with Senator Lugar on that. I don't think you could --

WOODRUFF: So it really comes down to a political argument, is what --

Sen. McGOVERN: It's a judgment, but I think we have every right to caution the voters of some of the problems with a person at the age the President is now, and the four years of additional age that he's going to put on if he is reelected. This doesn't mean that I'm in favor of an amendment saying nobody can be president after 65. I think you have to judge each case on its own merits. Let me say this, too; I wouldn't object to the President being a senator at the age of 85 or 90, or whatever it is, because that's one member of a body of 100. But the president of the United States is different from any other job in the world. It's the most crucial job and the most demanding and strenuous job in the world, in my judgment.

WOODRUFF: I think we have a somewhat understandable disagreement here between a Democrat, Senator McGovern, and a Republican, Senator Lugar. Thank you both for joining us this evening. Robin? Issue and Debate: The Character of the Court

MacNEIL: One of the issues Walter Mondale has been pounding home at every opportunity lately concerns the Supreme Court and the criteria Mr. Reagan might use to appoint future justices. Tonight we devote one of our campaign issue and debates to this subject. In Sunday's debate in Louisville, Mr. Mondale repeatedly invoked the name of the Reverend Jerry Falwell, implying that a vote for Mr. Reagan would lead to a much moreconservative Supreme Court, especially on such issues as abortion.

Mr. MONDALE [October 7]: When the Republican platform says that from here on out, we're going to have a religious test for judges before they're selected for the federal court, and then Jerry Falwell announces that that means they get at least two justices of the Supreme Court, I think that's an abuse of faith in our country.

Pres. REAGAN [October 7]: With regard to our platform on the Supreme Court, I can only say one thing about that: I don't -- I have appointed one member of the Supreme Court, Sandra Day O'Connor. I'll stand on my record on that, and if I have the opportunity to appoint any more, I'll do it in the same manner that I did in selecting her.

BARBARA WALTERS: Mr. Mondale, your rebuttal, please.

Mr. MONDALE: The platform to which the President refers in fact calls for a religious test in the selection of judges.And Jerry Falwell says that means we get two or three judges. And it would involve a religious test for the first time in American life.

MacNEIL: Mr. Mondale has also made the Reverend Falwell the centerpiece of a new campaign commercial.

ANNOUNCER [Mondale campaign commercial]: Reverend Jerry Falwell and President Reagan cordially invite you to join their party on November 6th. Here's all you have to believe in.

WOMAN: The secret war in Central America.

MAN: New Supreme Court justices must rule abortion a crime, even in cases of rape and incest?

WOMAN: No Equal Rights Amendment for women.

MacNEIL: Reverend Falwell denies that he'll be involved in selecting federal judges, but he and other conservatives do anticipate that if reelected, Mr. Reagan will look to fill vacancies with conservatives.

Here's the current lineup of the Court, one that has been remarkably stable, with one exception, for the past decade. Generally considered in the liberal wing are three justices, all in their mid-70s: William Brennan, Harry Blackmun and Thurgood Marshall. Comprising the conservative wing are the Chief Justice, Warren Burger, who's 77; plus the court's two youngest members, William Rehnquist, 60, and Sandra Day O'Connor, 54. In the middle are the so-called swing votes, sometimes voting with the liberals but more often voting with the conservatives in recent years. They include Lewis Powell, who is 77; plus Byron White and John Paul Stevens, both in their mid-60s. Court observers believe that whoever is elected president could be in the position to name replacements for as many as five justices, including all three liberals.

LEHRER: This is an issue where the divisions are just about as clean as they get along liberal-conservative lines. And we have two of each tonight, and the first pairing is of members of Congress, Democrat Barney Frank of Massachusetts, and Republican Henry Hyde of Illinois. Both are lawyers and members of the House Judiciary Committee, and they are with us tonight from Capitol Hill. Congressman Frank, what is the danger as you see it of five potential new appointees to the Supreme Court by Ronald Reagan?

Rep. BARNEY FRANK: I think there are several very specific issues that are a problem. One has to do with the question of the inappropriate insertion of religion by government means. I am nervous about Jerry Falwell's enthusiasm. I thought it was interesting that the President tried to fuzz up what the Republican platform seemed to say. I thought the Republican platform was saying more like what Mr. Mondale was saying. The President really refused a direct answer on that, I think because he thought that that was not the most popular position to take. I worry about particular localities doing things that will inappropriately involve government with religion, and the Supreme Court won't be there as it has been for a very long time to protect people. I also worry that organized labor, which is getting a beating from the Reagan National Labor Relations Board, will find the courts further beating them up. I think there's been a real retreat from the rights that organized labor ought to have, that working men and women should have, to govern themselves in the workplace, and I'm afraid of that being eroded further.

LEHRER: All right, let's go back to you, Congressman Hyde, on the religious question. Do you see the Republican platform as requiring a religious test? What's your view on that?

Rep. HENRY HYDE: No, I think that's another outrageous exaggeration by Mr. Mondale. If you read the platform, it's virtually identical with the one in 1980. It doesn't require a religious test, I have it here. "We applaud President Reagan's fine record of judicial appointments -- " nothing wrong with that, Sandra Day O'Connor was confirmed 99 to 0 by the Senate -- "and we reaffirm our support for the appointment of judges who respect traditional family values and the sanctity of innocent human life." I don't see anything wrong with that, either.

LEHRER: All right, what does that mean? Does that mean only judges who are pro-life, anti-abortion?

Rep. HYDE: No, not at all. But it means we like to see judges who respect innocent human life. Now those who don't respect innocent human life, we'd not like to see go to the bench, but it happens that the Court appointments of President Reagan have been really superb people.Chuck Wiggins the other day, to the U.S. Court of Appeals out in California; Judge Bork, Judge Parsons in the Seventh District; they're all fine legal scholars and good people.This is just another nonsensical remark by Mr. Mondale -- and by the way, I know Jerry Falwell isn't going to select any judges. I'm not sure that Jesse Jackson, the other great religious figure in this campaign, isn't going to select some judges -- and I'd like to hear from Mr. Mondale on that.

LEHRER: Well, Mr. Mondale isn't here, but Mr. Frank is. Mr. Frank, how do you respond to that?

Rep. HYDE: I don't think he knows.

Rep. FRANK: Well, just to mix the colors, I think Jesse Jackson is a red herring in this situation. Henry isn't serious about him picking judges. The point is, that either that sentence that Henry Hyde read is one of the great platitudes of all time, and I don't think it was meant to be; or it says that the judges have to be people who take the anti-abortion position. I don't think they simply put in there that they didn't want Supreme Court judges who would run people over or shoot them on sight. I don't think anyone would have thought it was worthwhile, even the kind of people who go to conventions -- who are an interesting breed, I admit, on both sides of the aisle. So I think that they took this statement meaning to say to the anti-abortion people, we're only going to appoint judges who think it should be a crime for any woman anywhere to have an abortion, but when pinned on it, they don't want to admit it. And Jerry Falwell is the one who says he's going to participate in picking the judges, we didn't make it up, that's what the man said.

Rep. HYDE: I find it fascinating that Jesse Jackson isn't to be taken seriously, but Jerry Falwell is.

Rep. FRANK: He never announced he would have his judges. Falwell said it; Jesse Jackson never said it.

Rep. HYDE: Jerry Falwell doesn't have the power to select any judges; you know it and I know it -- and that's a real red herring.

LEHRER: Well, Congressman Hyde, though, I mean, you position on -- you feel strongly about this issue of abortion, and, I mean, all kidding aside, isn't that really what that means? I mean, isn't abortion really the issue?

Rep. HYDE: It means that those people who wrote the platform, and I was one of them, and it means those people who adopted the platform would like to see justices who support the sanctity of innocent human life. That's plain English, and that's what it means, and I'm for that.

Rep. FRANK: And they won't explain it to you.

Rep. HYDE: And I -- also, traditional family values. Let's not forget that. Now, that is in sharp contrast to the Democratic platform, which says a woman has a fundamental right to an abortion, only they don't have the courage to call it abortion, they say reproductive rights.

Rep. FRANK: No, we have the courage to be very explicit, and I think Henry Hyde is again, as Mr. Reagan is doing, refusing to answer the very direct question he was answered. Yes, it says innocent human life. If that simply means that we don't want judges who are inclined to murder people, then I wonder why you bothered to put it in the platform.

Rep. HYDE: Well, let's make it clear -- [crosstalk]

Rep. FRANK: I think it was intended to do two things. You were flirting with the antiabortion people, but -- why don't you want to say it here?

Rep. HYDE: I will say it here. I would like to see judges who will reverse Roe v. Wade.

Rep. FRANK: Is that what the platform means? That only judges convinced of that in advanced would be --

LEHRER: Roe v. Wade, to explain, is the Supreme Court decision on abortion. Go ahead.

Rep. FRANK: Is that what the platform means?

Rep. HYDE: I'll tell you what it means, Barney. You evidently haven't read it.It says "We reaffirm our support for the appointment of judges who respect traditional family values and the sanctity of innocent human life." [crosstalk]

Rep. FRANK: Innocent human life.

Rep. HYDE: That's what I'm for.

Rep. FRANK: Does that mean judges who are committed to reverse Roe v. Wade? I've read it but it's a little ambiguous.

Rep. HYDE: It means we reaffirm our support for them whether they will be appointed or -- [crosstalk]

Rep. FRANK: You're not insisting that those be the judges who will be appointed, that they be anti- Roe v. Wade.

Rep. HYDE: This is not a test, this is a principle, this is something that we wan't it's something that we support.

LEHRER: Let me put it another way.

Rep. HYDE: I'm not backing off, I want pro-life judges. Do you understand? How many languages do you want me to say it in?

Rep. FRANK: English. English.

Rep. HYDE: I want pro-life. Watch my lips, pro-life judges.

Rep. FRANK: Does the platform require that?

Rep. HYDE: Innocent, the sanctity of innocent human life. Now you understand that, is that so complicated?

Rep. FRANK: No.

Rep. HYDE: Innocent human life.

Rep. FRANK: I understand that. Does the platform require that a federal judge be committed to [crosstalk]

Rep. HYDE: No, no more than your platform requires mandatory gay rights, affirmative action --

Rep. FRANK: What are mandatory gay rights?

Rep. HYDE: I say, it doesn't require it, it's just a hope of your platform. [crosstalk]

Rep. FRANK: I think what you saw was a backoff here again. They're embarrassed about Jerry Falwell --

Rep. HYDE: Backoff! I'm not embarrassed.

Rep. FRANK: You're running away from it. [crosstalk]

Rep. HYDE: I hope you're running those commercials against Jerry Falwell in the South, but I bet you're not.

LEHRER: Congressman Hyde. Let me reverse the question. What is the fear that you have, if any, of Walter Mondale's having the opportunity to appoint five Supreme Court justices?

Rep. HYDE: Well, we'll get more of the same. We'll get judges who think their job is to legislate and not adjudicate. We'll get more of the justices that we've had in our federal system, who think it's their job is to make policy, not to have policy made by the elected branch. We have a very liberal lower court, and the appellate judges are mostly appointed by Jimmy Carter and Democrats. So the only chance we have to even things up and get a judiciary system that knows its job is to adjudicate and not legislate, is through some Reagan appointees.

Rep. FRANK: Let me just say, two Republican justices appointed to the Supreme Court by a Republican, Harry Blackmun from Nixon and John Paul Stevens from Gerald Ford, have recently made just the charge Henry Hyde made, but they've made it against their fellow right-wing judges, and they're judges appointed by Republicans. [crosstalk] Let me just finish this sentence -- you don't want to hear the sentence finished, Henry. John Paul Stevens, conservative, Henry; John Paul Stevens, appointed by Ford, Harry Blackmun appointed by Nixon -- they're the ones who have accused the judges you're reaffirming and praising there of doing precisely what we object to. They've done it in labor law, these courts have taken rights away from unions that they've had a long time, and again, two Republican appointees to the Supreme Court have made precisely that accusation, I think accurately, against -- [crosstalk]

Rep. HYDE: You see how little you have to fear from Republican appointees?

Rep. HYDE: It's Reagan appointees I fear, Henry.

Rep. HYDE: You're praising Blackmun and Stevens.

Rep. FRANK: I'd give Gerry Ford two more appointments. It's Reagan I fear, and Jerry Falwell, not Gerry Ford.

Rep. HYDE: Well, it's Mondale and Jesse Jackson I fear, too.

LEHRER: Congressman Hyde, specifically what kind of, can you give us a name or an example of the kind of judge that you fear that Mondale might appoint?

Rep. HYDE: I don't fear any judge. I think it's up to the President and I'm sure whom he names, and that Senate confirms, will be very up to the job. I have no problem with that. I'm not in fear at all, I'm in hope. I'm in hope we get a court that understands its role is to adjudicate.

LEHRER: Do you see this, Congressman Hyde, as really a central issue in this presidential campaign? Is this something voters really should pay attention to when they vote?

Rep. HYDE: No, I think it's Mondale desperately looking for an issue. Now we have the geriatric hatchetman, McGovern, out raising age, so you can add that to arms control and foreign policy and the other will-o'-the-wisp issues that they're grasping for. They won't talk about the economy, though.

LEHRER: Congressman Frank, how do you respond, that this really isn't that big a deal, anyhow.

Rep. FRANK: Oh, it's a very central issue.If you believe in equal rights for women, since the conservatives have blocked the Equal Rights Amendment from being ratified, because we can't quite get two-thirds -- Henry's going to interrupt me again, because he doesn't like what I said -- he doesn't want us to have judges who will do it. If we don't have an Equal Rights Amendment, the Supreme Court will therefore be very important for enforcing women's equality. The kind of judges Reagan will appoint with Falwell's support, will not be supportive of women's equality. And I think the rights of working men and women are important; and I am very scared about the tendency on the part of Reagan and his political supporters to inject religion in the most inappropriate way into the political system.

LEHRER: Congressman Hyde?

Rep. HYDE: And I'm concerned about Barney Frank and his people wanting to exclude religious values from public consideration of issues.

Rep. FRANK: Oh, I've never been for that. I voted for the equal access bill, Henry, I think that's -- tell me when I've excluded religious values from public [crosstalk].

Rep. HYDE: Well, what you just said indicates an insensitivity to religious values.

LEHRER: Gentlemen, don't go away. We'll be back. Robin?

MacNEIL: The possible revamping of the Court has also great interest to the legal community. Two lawyers watching the situation closely are Paul Kamenar, legal director of the Washington Legal Foundation, a conservative public interest group; and Alan Dershowitz, a defense attorney, and a professor at the Harvard Law School. Professor Dershowitz joins us from station WGBH in Boston. Mr. Dershowitz, are you worried about the possibility of Mr. Reagan appointing a majority of conservatives on the court, and if so, worried about what in particular?

ALAN DERSHOWITZ: Well, I'm very worried. I'm worried for the same reason if I had been a conservative, I would have been terrified by President Roosevelt's trying to pack the court in favor of liberals during the New Deal. What I'm most afraid of is that the Supreme Court will no longer serve its function as a check in our system of checks and balances on the executive and the legislature, and I'm just as worried when there's a liberal court with a liberal president and a liberal Senate and Congress, as I am when there's a conservative court and a conservative president and a conservative Congress. Institutionally, what the Supreme Court must do is serve as a check on the excesses of the other branches of the government. And when a president, a popular president, has the ability to load the court with four or five or six judges of his own choosing, that crucially important system of checks and balances can go astray. And all Americans -- liberal, Democrat, conservative, Republican -- ought to be very worried about that, especially if you want to keep government off the backs of the people.

MacNEIL: But isn't that simply what the Constitution states the president can do?

Prof. DERSHOWITZ: No, it doesn't quite say that. It says the president shall, with the advice and consent of the Senate, appoint the justices. And I think the Senate has not been playing an active enough role in advising the President on the appointment of judges. And I think, you know, there's a very big difference between appointing Cabinet members -- the president should have his own cabinet -- and appointing judges. Judges are supposed to be independent. We should not have a conservative, activist court. And by the way, Barney is absolutely right about the point he made. The most activist court in American history is sitting right now. Justices Rehnquist, Burger, O'Connor are the ones who want to reach out and adjudicate and also legislate at the same time. This myth that only liberals are people who believe in civil liberties are activists and all conservatives lay back and wait is simply that, a myth.

MacNEIL: Let's go to Mr. Kamenar in Washington. First, on the separation of powers argument you've just heard, Mr. Kamenar, what is your comment?

PAUL KAMENAR: Well, I'm sort of reminded of the statement by Harry Truman, who said, "You can't pack the Supreme Court; I tried it, and it just doesn't work." And I think it's borne out by some of the appointments that were made in prior administrations, where you have Brennan, who was appointed by Eisenhower. And with respect to that so-called religious test in the 1980 Republican platform, I recall as a sort of a footnote to all of this that the President did appoint Sandra Day O'Connor, with the objection of very many pro-life groups. So apparently they didn't pass her test, yet the President ignored that and appointed Justice O'Connor.In terms of the justices being on the bench to have the separation of the judiciary from the rest of the executive and legislative branches, I agree that they should be independent, but at the same time, there's a big difference between being an activist in terms of making the law as a judge would like to see fit, as opposed to being activist in the sense of cutting back on judicial excesses of the Warren Court. And the Washington Legal Foundation has been trying to counter the efforts of the ACLU and the Nader and NAACP type groups, who have been trying to push the court into legislate, and we are trying to have the court come back a little bit to the intent of the legislative and the democratically elected officials of the people.

MacNEIL: You would argue that the present court is activist in the conservative sense of trying to redress the, what you would call the excesses of the previous liberal activist court.

Mr. KAMENAR: Yes, I would agree, one decision that came out last term was the Memphis firefighters case versus Stotts. There you have a decision written by Justice Byron White, who was appointed by President Kennedy. In that opinion he was citing Hubert Humphrey and saying that our civil rights laws should be applied in a color-blind fashion. And that case, as you recall, said you cannot have quotas to override the rights of innocent non-minorities, and you can't have remedial powers unless there's been an actual case of discrimination and not just a general member of a class.

MacNEIL: Gentlemen, we've had a general statement from each of you, let's take some of the current issues that are or may be before the court and ask you your views. Starting with you, Mr. Kamenar, do you think if there were a Reagan-appointed, new conservative majority on this court, that Roe v. Wade, the decision of the present court that permitted, made abortions legal in this country, would that be repealed, do you think?

Mr. KAMENAR: I really don't know. There's no abortion case before the Supreme Court this term that I know that they accepted for review. The last one in the last term was the Akron case, I believe, and that was 5-4 decision. But I might add that legal scholars who are either for or against abortion either one, basically agree that that was a decision, that the justices created these rights out of whole cloth, thereby violating the statutes that were on the books in various states. My answer is that, if the Supreme Court had the laws providing for abortion, I would think that even conservative judicial judges would agree and let those state-passed laws be the law of the land, rather than imposing their views.

MacNEIL: So are you saying that a new -- inother words, put it much more simply, the same question Jim was putting to the two members of Congress. If there were a newly appointed Reagan majority on the court, is it likely it would rule abortion illegal in the federal sense?

Mr. KAMENAR: It would be very close, because like I said, you have the split of the Supreme Court on this issue. But that doesn't mean that the Congress cannot override a Supreme Court decision; they do it all the time. And that's the checks and balances we do have.

MacNEIL: Mr. Dershowitz, what's your view on that particular issue -- Roe vs. Wade?

Prof. DERSHOWITZ: Well, it depends on what kind of justices the President appoints. If he appoints truly conservative justices, they will abide by the notions of stare decisis, let the law remain the way it is.And they will not move in to simply count the votes and try to overrule a prior decision. If on the other hand, President Reagan appoints Jerry Falwell's folks, people who have a mission to come into the Supreme Court with a hit list of decisions -- number one, Roe v. Wade; number two, Miranda -- and they set out in a political fashion simply to get enough votes to overrule the decision, they will probably be willing to do so. Justice Harlan was my idea of a great judicial conservative.

MacNEIL: And if they did, to make it clear, that would mean that the Supreme Court of the country was saying that abortion was illegal in this country.

Prof. DERSHOWITZ: That's right. The states could make abortion illegal, could criminalize abortion, could send rape and incest victims to jail, and doctors to jail, if together they agreed that the woman deserved an abortion. Justice Harlan was a great judicial conservative, took the view very often, "I don't agree with what the Supreme Court said in the past, but I will not overrule prior decisions." Decisions of the Supreme Court should not be like restricted railroad tickets, good for this train and this day only, but what I'm afraid of, and what many people, both liberal and conservative are afraid of, is that the Reagan administration and Mr. Meese will appoint judges who are essentially sworn to a program of reversing certain Supreme Court decisions. Something the liberals have never done.

MacNEIL: Just let me, I'd like to come back to Miranda, so we can cover some of this other ground. Miranda, which is shorthand for criminals' rights, what do you think, Mr. Dershowitz, a more conservative court would do in that direction?

Prof. DERSHOWITZ: Again, I think that a conservative, a truly conservative court would not reverse the exclusionary rule. It might impose limits on it, it might curtail it a bit; but a court which was appointed for the express program of adopting the Reagan administration's policy against the exclusionary rule would reverse Miranda, would reverse other procedural safeguard rights -- and by the way, the Supreme Court does has before it four or five very important criminal procedure cases this year, including the right of the police to shoot and kill a 15-year-old boy who was suspected of a $10 felony, a burglary of a home. They have a variety of other cases, and you know, the Supreme Court sets its own docket. If it doesn't have it this year on the agenda, it can always pick from the 2,500 or 3,000 cases next year or the year after.

MacNEIL: Let's go to Mr. Kamenar on the point of Miranda and criminals' rights.

Mr. KAMENAR: Well, judt one thing with respect to the stare desisis first. I guess if you keep all the decisions the same, we would still have the Dred Scott decision which made slavery chattels, you wouldn't have reversal of decisions. I might add that the solicitor general under President Reagan did not ask for reversal of any case at all during the four years he's been in office.

Prof. DERSHOWITZ: And that's why he's in so much trouble with the Republican administration and they want to fire him.

Mr. KAMENAR: Now wait a minute, let me -- with respect of Miranda warnings, the Supreme Court has moved back to a reasonable, balanced approach on interpreting the rights of the criminals versus the rights of law-abiding society. And I think if you asked the American people whether they felt the decision in the Leon case and other cases, where the lower courts had thrown out convictions because of a minor technicality, they would agree with the Supreme Court. They're moving back to more moderate position that way. And you stated on this show about three or four months ago, that after that decision, the police would be banging down your doors, raiding everybody's houses, you'd have a Gestapo police coming in. And I haven't seen that happen yet. I think you're an alarmist and you're exaggerating in a demagogic fashion on that.

MacNEIL: Briefly, Mr. Dershowitz.

Prof. DERSHOWITZ: I certainly never said that --

Mr. KAMENAR: Yes, you did.

Prof. DERSHOWITZ: I said I thought that our rights would be in greater danger. There have been a series of raids recently on law offices, on newspaper offices. I think these things take time to happen. But by the way, speaking about the solicitor general's office, obviously the reason that Rex Lee, the solicitor general, is in so much trouble today as the result of pressures from your organization and others, is precisely because he has acted in a statesmanlike and judicial manner, and has not sought overruling of the kind your organization has sought. You also said the American people approve of current cutbacks in Supreme Court decisions. It is not the role of the United States Supreme Court to please the American people. It is the role of the Supreme Court to establish existing and established law.

MacNEIL: We must move on. Thank you, gentlemen. Jim?

LEHRER: Yes, I want to go back to the two congressmen, Congressman Hyde and Congressman Frank, who are on Capitol Hill. Congressman Hyde, should a president in appointing federal judges be cognizant of a philosophical hit list or whatever you want to call it, in terms of judicial decisions, in selecting people to be appointed?

Rep. HYDE: Ideally, no. Ideally the person selected should be of keen intelligence, a legal scholar, good temperament, incorruptible -- all of those good things, would make excellent judges. As a practical matter throughout history, there have been political overtones. You get named by your senator, and then you must be confirmed by the Senate. Of the 128 appellate judges in the federal system now, 70 are Democrats, 58 are Republicans. And if you look at their decisions, they do remember who put them there, and that's just human nature.

LEHRER: Well, what I guess I'm really getting at is simply this. What's wrong with a conservative president appointing conservative people to be on a court?

Rep. HYDE: I would think that's what America wants when it elects a conservative president.

LEHRER: Isn't that right, Congressman Frank?

Rep. FRANK: Yes it is. The problem is that people may be inclined to vote for Ronald Reagan because they like his economic policy, but they may not necessarily want that to mean a Supreme Court that's going to make it a crime for any woman anywhere to have an abortion, or that's going to be very anti the tendency towards equal rights for women. That's the problem. Obviously the President has the right if reelected to appoint people who reflect his viewpoint. I don't differ with his right to do that. I simply think in an election time people should understand that those are the implications. And people who may like Ronald Reagan's tax cut, I think they have to think, do they want judges who are going to be for allowing religion inappropriately to be involved in the schools. I think some of the Reagan people are? Are they going to be anti the tendency towards equal rights for women? Are they going to be saying that Roe v. Wade was wrong and it should be a crime for a woman to have an abortion? I'm not saying that Ronald Reagan doesn't have the right to make those appointments; I'm saying that I think that those are legitimate issues to be talked about. Of course he's going to appoint people who reflect some of his values. I think the Republican platform had a right to say what I think it said, although I think it's being backed away from. But I think they intended to say, "We're going to only appoint judges who are anti-abortion," and they got a little bit worried about that politically. But I think that's a commitment that is there and ought to be talked about.

Rep. HYDE: Well, let me just say, Chuck Wiggins, who is a dear friend of mine, was just nominated and confirmed to the U.S. Court of Appeals, did not ever support my position on abortion; the President named him, and he's going to be a great judge. And I hope he's on the Supreme Court someday. Don't be so terrified by it, because things will work out all right [crosstalk].

Rep. FRANK: I'm only -- Henry, between now and November, I'm not worried. I'm not worried between now and November, I'm worried in the second term, I take Ronald Reagan at his word. And I think we're going to see problems with equal rights, we're going to see problems with regard for keeping church and state separated properly, we're going to see problems for unions. Ronald Reagan has the right to do those things, and people have a right to know that he will.

Rep. HYDE: Well, the problem with equal rights was the way it was managed in the House and that you can't get 38 states to ratify it. That's not Ronald Reagan's fault. But the --

Rep. FRANK: Well, Ronald Reagan -- it is his fault for letting Republicans --

LEHRER: Let him finish --

Rep. FRANK: The Republican platform opposes that amendment for the first time in the party's history.

LEHRER: Congressman Frank, let Congressman Hyde finish, please, sir.

Rep. HYDE: Thank you. He does interrupt. I was going to say, the country has been on a liberal tack for many years, and I think there's a shift back, the pendulum is shifting back, and I think it's healthy that it does.

LEHRER: Let me just ask Mr. Kamenar. What kind of test do you think should be given to judicial appointees?

Mr. KAMENAR: Well, I don't think there should be any test as such. Obviously the qualfication of the judicial candidate should include his or her legal background in terms of their competence to be a judge or judicial temperament, and these are the criteria that the President has used. But I must point out that every judge -- every president has appointed when he had the opportunity to, a person on the Supreme Court, obviously included the judicial philosophy of that person. I would think that you would want to have somebody that is more for judicial restraint and a strict construction of the Constitution, and to say what the law is and not what the law should be, and leave that to our elected leaders.

LEHRER: Mr. Dershowitz, you disagree with that?

Prof. DERSHOWITZ: I don't disagree with the way he's put it; I disagree with the way he would implement it in practice. I think that it is important to have some conservative judges on the court, but they ought to be judges who have a broad philosophy and not a specific program like a politician might have. There have been abuses on the other side as well. At some point in his life, Justice Douglas had a specific program. If one judge has that, that's tolerable; if six or seven judges see themselves as part of a campaign to roll back the issues, I think we're in trouble, and I think Ronald Reagan will have learned the lesson of Harry Truman, and he will know how to work better and harder and more intelligently at getting judges who will persist in his philosophy until the 21st century -- that's a long time.

LEHRER: Congressman Hyde, do you believe that whether they're appointed by Ronald Reagan or anyone else, that it is a legitimate purpose in appointment federal judges to roll back some of the liberal decisions of the past?

Rep. HYDE: Yes, I think if you're concerned about the judicial legislation that has gone on, that has established busing as a constitutional right, I think if the court has found a right of privacy justifying a right to abortion in the Constitution that for 200 years nobody else found, I don't see that there's anything wrong with trying to straighten out that imbalance. But Reagan's appointments to the court have been superior people, outstanding legal scholars and great justices. And Sandra Day O'Connor is but one. I don't understand all of this simulated anxiety over what Reagan's going to do in the next term. They'll be just as good and we'll see a court that is just as good as it's been.

LEHRER: You don't agree with that, Congressman Frank?

Rep. FRANK: No, I agree more with those Republican-appointed justices Harry Blackmun and John Paul Stevens, that Sandra Day O'Connor and some of the others that Mr. Hyde liked have in fact been activists, they've been activists in a direction I don't like. He has a right to do that. Who's kidding whom? A president, elected politically, is going to appoint justices who tend to agree with him. I think people should know what they're going to get from Ronald Reagan.

LEHRER: You're suggesting that his appointees thus far have not been that good, is that correct?

Rep. FRANK: I'm suggesting that -- he's only made one to the Supreme -- I'm not suggesting, he's only made one to the Supreme Court. I'm saying that after he gets reelected if he does, and I don't think after that debate that that's any certainty, that if he got reelected you would see people who would be, on equal rights for women and on unions and on religion in schools, very right-wing people. I just take Ronald Reagan at his word, and I think that he means what he says, even if on occasions like last Monday [sic] he didn't say it very clearly.

LEHRER: Mr. Kamenar, how do you read what President Reagan is saying about the kinds of people he will appoint to the --

Mr. KAMENAR: Well, again, I think it goes back to what he said in 1980, that he will appoint justices that are competent, that have the qualifications, that share his basic philosophy of judicial restraint. But I might also add that the Supreme Court is only one court; 99% of the cases adjudicated in this country never reach the Supreme Court, they're fought in the lower legal trenches in the courts of appeals and the district courts. And I might add that almost 50% of all those judges who affect our lives every day ware appointed by Jimmy Carter, and they're there until the 21st century as well.

LEHRER: Mr. Kamenar, do you see this as a big deal in this election?

Mr. KAMENAR: I really don't see it as that big of a deal. I think it's an important issue for lawyers and judicial scholars and jurists, as well as the people at large, but I don't think it's that important in the sense that any decision of the Supreme Court can be basically overturned by our elected leaders. I have confidence in our democracy.

LEHRER: Mr. Dershowitz, how do you read the importance of this?

Prof. DERSHOWITZ: Oh, I think it's crucially important. What we don't want is an every four year reversal in the trends of the Supreme Court. There will be a loss of respect for that crucial institution; I think there already is a loss of respect, both for the Chief Justice personally and for the institution over which he presides.

LEHRER: All right. Mr. Dershowitz in Boston, thank you very much for being with us tonight; Congressman Hyde, Congressman Frank on Capitol Hill, thank you; Mr. Kamenar here, thank you very much. Robin?

MacNEIL: In the Supreme Court today a California man described as an anti-abortion activist was arrested for standing up and shouting at the justices "The lawof God is 'Thou shalt not kill.'" He was removed but not charged. The court was not discussing abortion at the time. The court did agree today to decide a case affecting church-state relations. A lower court has ordered New York City to end an 18-year-old program of sending teachers to religiously affiliated schools to offer remedial classes to needy students. Last July the Second U.S. Court of Appeals ruled that the program is unconstitutional, even though it has done much good. New York City, joined by the Reagan administration, disagrees, and the justices agreed to hear their appeal. Jim?

LEHRER: Still ahead on the NewsHour tonight, a summary of the rest of the news of the day about El Salvador, the Middle East, the astronauts and AIDS, among other things, and finally, novelist Bill Kinsella tells us why baseball is so wonderful.

[Video postcard -- Blackstone River, Massachusetts]

MacNEIL: El Salvador's leftist guerrillas today accepted the proposal by President Jose Napoleon Duarte to meet next Monday for peace talks. Duarte made the proposal in a U.N. speech yesterday, suggesting the two sides meet unarmed in the town of La Palma near the Honduran border. The rebel radio Venceremos said today that the Farabundo Marti Liberation Front, or FMLN, a coalition of five left-wing groups that have been fighting for five years, accepted Duarte's conditions. They added one: they proposed that Colombian president Balisario Betancur serve as a mediator in the talks. In Washington the State Department said that if this meant the meeting would take place, the U.S. welcomed it.

Also in Washington, one of the issues holding up the adjournment of Congress is a continued dispute over the funding for the contras fighting the Sandinista government of Nicaragua. The House has voted four times to cut off assistance; the Senate has reportedly approved $28 million in secret funds, and conferees are trying to work out a compromise. Jim?

LEHRER: Shimon Peres, the prime minister of Israel for less than a month, was in Washington today. He talkedto President Reagan, and the subject was mostly economics: Israel's special crisis, a 400% inflation rate, a billion-dollar budget cut, and the need for additional U.S. economic aid, among other things. After the two-hour White House meeting, they had this to say.

Pres. REAGAN: I know from our own experience how difficult the problem of economic readjustment is, yet how vitally important a strong economy is to national security. The economic support funds and other funds that the Congress has appropriated for Israel come at an opportune time, for they will enable Israel to develop its programs without having to divert undue attention to balance of payments problems. Should such problems arise, the U.S. government will work closely with the Israeli government to avert them.

SHIMON PERES, Israeli prime minister: We are determined to tackle our economic difficulties head on. Mr. President, our land is not a land for skeptics, but a cradle for believers, and this is more important than any passing economic difficulty. The support of the President, the United States government, and the American people, is a source of strength and inspiration to all of us.

LEHRER: Peres flies to New York tomorrow, where he meets Walter Mondale and has an interview with Robert MacNeil.

In Jordan today, Egypt came out of its Arab world isolation. Egyptian president Mubarak arrived in Amman on an official state visit. He was greeted with a 21-gun salute, and an embrace by Jordan's King Hussein. Jordan and most of the Arab world broke diplomatic relations with Egypt in 1979, when Anwar Sadat signed a peace treaty with Israel. Two weeks ago Jordan resumed formal ties with Cairo, saying Mubarak has now taken pro-Arab stands. Robin?

MacNEIL: The United States Public Health Service said today there is no reason to believe the disease called AIDS, or Acquired Immune Deficiency Syndrome, can be transmitted from one person to another through saliva. The announcement was prompted by a report that a virus believed to cause AIDS has been found in the saliva of some people who have the disease or in danger of coming down with it. That report caused speculation that the disease might be transmitted through saliva as well as blood, blood products or semen. But Dr. Edward Brandt, the head of the Public Health Service, said that not one case of AIDS has ever been linked to saliva, and that the evidence indicates it's very unlikely. Jim?

LEHRER: Again, the main stories of this day. President Reagan said he would never ever reduce Social Security benefits for anyone, and on the age issue, said he was prepared to arm-wrestle the Democrats.

Also, the anti-government leftist guerillas in El Salvador agreed to talk peace with President Duarte.

Finally tonight, a little something about baseball. The World Series between the Detroit Tigers and the San Diego Padres opens later this evening. Novelist Bill Kinsella tells us now about baseball and why it's simply the most perfect of all games. A Timeless Sport

W. P. KINSELLA, novelist: Why baseball, I am often asked. Why my fascination for this particular sport? Why are there so many baseball fanatics? What do they try to answer? The one constant through all the years has been baseball. It is essentially the same game it was a hundred years ago. Baseball is timeless; it is a game of anticipation. Most sports involve taking a ball and depositing it in a hoop or a goal, or carrying it across a line within a given time.The clock in the sense of immediacy is evident in most sports.

But baseball is for dreamers. At a baseball stadium the clock is forgotten. The ball is only in actual play for two or three minutes of time; the rest is anticipation. You try to guess what is going to happen, plan the strategy, play at being manager. And if your mind drifts away to past games or future games, or indulges in other fantasies, no harm. The crack of the bat will bring you back to the action.

Why not baseball? Name me a more perfect game.It is the ballet of sports, the chess of sports. Name me a game with more possibilities for magic, wizardry, voodoo, hoodoo, enchantment, obsession, possession. Take the layout; look at a baseball diamond for a while if you want proof of the supernatural. No mere mortal could have conceived the dimensions of a baseball field, no man could be that perfect.

And think about this; the field runs to infinity, the foul lines run on forever, forever diverging. There's no place in North America that's not part of a major league ballfield -- the meanest ghetto, the highest point of land, the Great Lakes, the Colorado River. Every other sport is held in by boundaries, but there's no limit to the size of a baseball field. That's why baseball is so full of mystery, when you stop to consider there's no place in the world that isn't part of a baseball field.

LEHRER: Thoughts of novelist Bill Kinsella.Good night, Robin.

MacNEIL: Good night, Jim.That's the NewsHour tonight. We will be back tomorrow night. I'm Robert MacNeil. Good night.