The MacNeil/Lehrer NewsHour

MR. LEHRER: Good evening. Leading the news this Wednesday, Oliver North was fined and sentenced to probation but not to jail. The Chinese Government announced a crackdown on corruption, and in Paris, Soviet Pres. Gorbachev and French Pres. Mitterrand made a joint appeal for a cease-fire in Lebanon. We'll have the details in our News Summary in a moment. Robin.

MR. MacNeil: After the News Summary, we have reaction to the sentencing of Oliver North from Haynes Johnson of the Washington Post and Syndicated Columnist Ray Price, then the ideological character of the Rehnquist Supreme Court as revealed by recent decisions on affirmative action, the flag and abortion, with A.E. Dick Howard of the University of Virginia, and Eleanor Holmes Norton of Georgetown Law School, former Judge Robert Bork, former Congresswoman Barbara Jordan, and Editor Norman Podhoretz. We end with a look back from Essayist A.C. Greene.NEWS SUMMARY

MR. LEHRER: Oliver North was sentenced today but not to prison. Federal Judge Gerhard Gesell gave the former Reagan National Security Aide a three year suspended sentence for his Iran-Contra crimes. He was also placed on probation for two years, ordered to spend 1200 hours of community service with inner-city young people, fined $150,000, and forbidden to hold public office. Judge Gesell told North he was not the fall guy. He said the former Marine officer was really a low ranking subordinate who was carrying out the instructions of a few cynical superiors. North, his lawyers, and his family left the federal courthouse in Washington without commenting to reporters. Independent Prosecutor Lawrence Walsh said sentencing was the function of the judge and he declined further comment. White House Press Secretary Marlin Fitzwater said Pres. Bush would also not comment. Congressman Lee Hamilton, Democrat of Indiana, who chaired the House Iran-Contra Committee, had this reaction.

REP. LEE HAMILTON, [D] Indiana: I don't think the fact that he was a scapegoat or a fall guy absolves him of any responsibility in the matter, but it certainly goes to the question of mitigation of punishment.

MR. LEHRER: We will have more on the North sentencing right after the News Summary. Robin.

MR. MacNeil: Soviet President Mikhail Gorbachev and French President Francois Mitterrand today appealed together for an immediate cease-fire in Lebanon. And in a joint statement, they also called for an end to arms deliveries to the warring factions there. On the second day of his visit to Paris, Gorbachev met with leading French intellectuals at the Sorbonne, the ancient University of Paris, where he said he was trying to create a fusion of socialism and democracy in the Soviet Union. He added, "It's more difficult than we thought in the beginning but it's working. The country is changing rapidly and irreversibly. While Mr. Gorbachev was in Paris, his defense minister was back in Moscow trying to explain yesterday's crash of a Soviet fighter plane. The Mig 23's pilot bailed out during a training mission over Poland, but the plane continued on through East and West Germany and the Netherlands before crashing into a house in Belgium, killing one person. Soviet Defense Minister Dimitri Yasov said a commission will investigate why Warsaw Pact forces failed to detect and shoot down the plane. West Germany, the Netherlands, and Belgium today complained to Moscow for not notifying them when the plane crossed into the air space. And in Moscow today very quietly they buried the statesman Andrei Gromyko. Geoffrey Archer of Independent Television News describes the scene.

GEOFFREY ARCHER, ITN: Andrei Gromyko's last journey was to a cemetery several miles from the Kremlin where he served Soviet leaders for 30 years. He was given a guard of honor as a last gesture from the Soviet leadership, but Gromyko was buried as a man who died out of office and largely out of favor. His widow was beside the coffin where Gromyko lay on open display for the final time, a short tribute by a member of the ruling Politburo the only other reminder of Gromyko's service to the Soviet state. The coffin then escorted to a small overgrown corner of the cemetery where he was to be buried, the family surrounded by a generation of political leaders now discredited. Former colleagues of the veteran diplomat came forward with wreaths. But now none of the Soviet leadership were present, a clear signal that Gromyko was at the end out of step with Gorbachev's new politics.

MR. LEHRER: The Chinese government announced a crackdown on corruption today. Stories in official newspapers reported the arrests, trials, and sentencing of local government leaders accused of taking bribes and of fraud. One concern the trial of six people for stealing $105,000 from a science center. Also today Chinese soldiers seized film and video tape from a group of Japanese tourists who took pictures at Tiananmen Square in Beijing in violation of martial law restrictions.

MR. MacNeil: Secretary of State James Baker arrived in the Asian Nation of Brunyide today for talks with other countries on the future of Cambodia. Baker told reporters, the U.S.will work very hard to prevent the Khmers Rouge from returning to power in Cambodia, when the withdrawal of Vietnamese troops is complete because he believes it could lead to another holocaust. The Khmers Rouge are said to have killed more than a million Cambodians when they ruled the country in the late '70s, and are now the most powerful of three armed factions. The administration wants to send arms to non-Communist rebels but some Congressmen believe they could fall into the hands of the Khmers Rouge.

MR. LEHRER: That's it for the News Summary tonight. Now it's on to the North sentence, the Supreme Court, and Essayist A.C. Greene. FOCUS - FAIR SENTENCE?

MR. MacNeil: We go first tonight to the sentencing of former White House Aide Oliver North. Judy Woodruff has the story. Judy.

MR. WOODRUFF: As we reported a moment ago the 45 year old former Marine was placed on probation and fined $150,000 for his role in the Iran Contra Affair. U.S. District Court Judge Gerhard Gesell gave North a three year suspended prison term, placed him on two years of probation and ordered him to preform 1200 hours of community service in a program to help inter city youths fight drug use. Gesell told North that he came to be the point man in a very complex power play developed by higher ups but the Judge said North responded willingly and to some extent even excessively to the requests of others in the Reagan White House. Gesell told North I believe you still lack a full understanding of how the public service has been tarnished. He added handing down the sentence that jail would only harden your misconceptions. For reaction to the long awaited sentencing of the former White House Aide we turn to two commentators. Ray Price, former speech writer for Richard Nixon. He is a nationally syndicated columnist and Haynes Johnson who writes a weekly column for the Washington Post. Haynes let me begin with you. Was this the right sentence or should North have gone to prison?

HAYNES JOHNSON, Columnist, Washington Post: I think that it was the right sentence Judy. I think that what we've seen here is a line drawn and what Judge Gesell said North did not understand how he tarnished the public service and I think in sending a signal to people in public life that if you violate the law, you usurp the Constitution, you go beyond your authority you are going to be held accountable. But it also in not sentencing him to jail and making him a martyr he also sent a clear signal to higher ups that there are many more people involved. That North didn't act alone and I think in that sense its a verdict that somehow singularly fits the case. It is ambiguous and it comes down with many things unresolved.

MS. WOODRUFF: Ray Price the right sentence or should he have gone to prison?

RAY PRICE, Syndicated Columnist: Under the circumstances it was the right sentence. he should have not gone to prison but I would disagree with Haynes on some of the surrounding circumstances. Ollie North is caught at the vortex of a titanic struggle between two branches of Government. It is a political struggle that should never been criminalized. As long as it was criminalized as long as he was prosecuted, as long as he was convicted yet only on the three of the twelve that remained after dropping earlier ones and the three least of those. It was appropriate the he be sentenced to something other than prison. Prison would have served no good purpose at all and he will appeal the conviction of course and even if after the appeals are completed in a couple of years the sentence still stands. It is one that he could serve with honor.

MS. WOODRUFF: Well let me ask you both about a statement that the prosecutors made in a memorandum they gave to Judge Gesell before he made this sentencing. They said not to send Oliver North to prison would send exactly the wrong message to government officials. And let me just quote quickly here from this memorandum. They said that it would be a statement that fifteen years after Watergate Government Officials can still participate in a brazen cover up. lie to Congress, and collect a substantial gratuity and still receive only a slap in the wrist.

MR. JOHNSON: Right and people do feel that way and the Watergate analogy is important. I disagree with Ray Price that this was just a titanic political struggle. There were laws that were violated. Mr. North said openly that he destroyed documents, destroyed evidence. he lied, he went against his oath as a marine to uphold the Constitution. Now this is not a struggle between the branches. It was about accountability and trust in Government. But his sentence has been imposed in a way that his life is forever changed. He has got a three year sentence suspended the make sure he won't serve time in Jail. But his life is ended he can not hold, public office, he can't be in the Marine Crop. I think that his entire life has been changed. I think that is a rather strong penalty.

MS. WOODRUFF: You say his life has been changed and yet he can now go out and we read make speeches, collect what $25,000 a speech, I mean in six speeches he can pay off his fine.

MR. JOHNSON: He can pay off his fines easily, he'll probably have security probably the rest of his life Judy but I think the question is going to be whether or not the people understand what was at the heart of this. It was a major abuse of trust between the branches of Government.

MS. WOODRUFF: Ray Price how much of a punishment is this really for Oliver North? You agree with Haynes that this is a major turning point in Oliver North's life that he can't do what he would have wanted to do now as a result of this.

MR. PRICE: You have to remember he has already been punished very substantially. he has been disgraced in many people eyes, not in mine, but in many peoples, he has had to leave the Marine Corp, he had to go through this horrible ordeal for the last couple of years and he can not hold public office, however, I think that he can contribute importantly to public debates. He has played a key role in one of the defining foreign policy controversies of our time. he has been on the right side of that and I hope and trust that he will be a public figure although he can not be a public official.

MR. JOHNSON: What it does it means that Mr. North is not going to be a martyr and it means that those in public life who follow what happened here will realize that they can be also caught in the net that he was caught in.

MS. WOODRUFF: What does that mean? What are you saying?

MR. JOHNSON: I mean in the picture of Oliver North going to jail and the doors clanging shut on him and waving the American Flag in pin striped prison suits. I think that would make him even more a cult figure and I think that when time settles in on this verdict and the history of it he will be seen as someone who has paid a price. he is a convicted felon for the rest of his life. In the sense I think there is a judgment rendered.

MS. WOODRUFF: But Ray Price just said that he can continue to speak out in the causes he believe in. He can continue to particularly to conservative groups.

MR. JOHNSON: he could do that from a prison cell, I mean, Hitler wrote Mein Kamp from a prison cell and you can continue in many ways and even become more of a martyr and I don't think that Mr. North is a martyr and I think that is the signal that I think Judge Gesell was trying to send in this sentence.

MR. PRICE: You know, I think that it is important to keep in perspective that of the twelve charges that the prosecutor brought against him most of these were for attempting to conceal the very sort of sensitive information that normally people would go to prison for revealing. Through most of what he did he was trying to keep alive the armed democratic resistance in Nicaragua while Congress was trying to cut them off at the knees. The old Administration was involved in way or another in trying to do this. It was a very difficult legal line to walk and the consequences could have been horrendous as they probably will be because Congress finally succeeded in cutting them off. Horrendous for the Nicaraguans, for their Central American neighbors and ultimately for us but that is a consequence of his failure not of his success.

MR. JOHNSON: I mean the record is so clear on this point that what they were doing and they knew they were doing was circumventing the law.

MR. PRICE: But let's look at what that law was Haynes. The five Boland Amendments which were not even something that Congress was willing to stand up and be counted on and vote on as a piece of legislation. They were riders attached to the kind of appropriations bills that a President can veto and they kept changing the rules so that you could not conduct a sensible and coherent and consistent policy.

MR. JOHNSON: The law is the law and what they were doing and the whole reason for the secrecy because they knew they were violating it. The reason they turned it in to something extraordinary beyond the realm of accountability or tried too to get around the Constitution is create a private operation that was beyond the law.

MR. PRICE: And the only reason they were driven to try and create a private operation beyond the law was that Congress had so weakened the CIA and had so halted it with reporting requirements which when things were reported to Congress then they would show up next morning in Haynes's newspaper. You couldn't conduct covert operations and if you wanted to you had to something privately and they stumbled badly in trying to live with that.

MS. WOODRUFF: Rather then rearguing the whole thing all over again, as fascinating as it is, Ray Price should Oliver North be pardoned still after this light sentence. Is there still a case for doing that?

MR. PRICE: I think that it takes a lot of the stream out it. I thought that Reagan should have pardoned him as a final act of his own Presidency because this happened on Reagan's watch and he should just with out regard for North he should have wiped the plate clean for his successor.

MS. WOODRUFF: What about now?

MR. PRICE: I think that if I were advising the people down there I would be urging North if his appeal fails I would urge North to request that Bush not pardon him. Bush shouldn't have to take on the baggage.

MR. JOHNSON: I think aside from Oliver North the happiest man in America tonight must be George Bush. He doesn't have to face the clamor to pardon Oliver North. Judge Gesell let him off the hook.

MS. WOODRUFF: Haynes what does this say if anything about what the other Iran Contra defendants face particularly John Poindexter whose trial is coming up next?

MR. JOHNSON: Well that puts a lot of burden on Mr. Poindexter it seems to me, Judy, because the trail doesn't do much higher. You've got North's immediate superior Admiral Poindexter and President Reagan is gone, George Bush is now the President and I think that this now extracts a much more difficult process in the trial for Poindexter because he was a superior in change. If you accept the logic of Judge Gesell he is pointing the finger upward. Where does the finger go? It goes up next to Poindexter.

MS. WOODRUFF: I agree that is probably what Judge Gesell is doing and I think that it is going to be a rough time for Poindexter.

MS. WOODRUFF: Gentlemen we thank you both. Ray Price in New York, Haynes Johnson here is Washington. Thank you both for being with us.

MR. MacNeil: Still ahead on the Newshour what recent decisions say about the Character of the Rehnquist Supreme Court and a look back by Essayist A.C. Green. FOCUS - COURTING CONTROVERSY

MR. LEHRER: Next tonight we review the just completed work of the U.S. Supreme Court. It ended its term Monday with a bang, a decision that allows states to restrict abortions but it was only the last of many bangs. The sharply divided Court stepped in to several divisive issues and resolved them mostly with 5 to 4 votes and bitter divisive words of their own. The issues included civil rights and affirmative action, freedom of speech and the right to desecrate the American Flag, capital punishment and the execution of the mentally retarded and persons who committed crimes when they were 16 years old or younger. What these and other decision of this term add up to and why is what we look at now. Beginning with Supreme Court Scholar A.E. Dick Howard a Professor of Law that the University of Virginia. Professor Howard is there now a Rehnquist Court that is indetifiable and describable?

A.E. DICK HOWARD, Professor of Law, University of Virginia: Jim for 20 years or more we have been waiting for a court to come into its own. We've been looking for a conservative working majority. The Burger Court never really found its identity but I think that we can now say that after three years Chief JusticeRehnquist assumed that post that there is indeed a Rehnquist Court with its own unmistakable stamp.

MR. LEHRER: Describe the stamp?

MR. HOWARD: Well it seems the me that if you generalize about cases that were decided this spring and summer, cases like those dealing with abortion, capital punishment, criminal justice, other cases like that. I think that you can identify a Court that by and large is inclined to respect the judgments that State Legislatures and other official bodies make about some of the great social issues of the moment. It seems to me that it is a Court that is not inclined to be very adventuresome by way of social engineering. Its a Court that seems to me to prefer to allow social mores and customs to filter up through the political process and decide the kinds of questions which at least in the days of the Warren Court and even in the Burger Court we found often being decided by Judges.

MR. LEHRER: What about this tendency toward five to four decisions, bitter words, very strong words in the dissenting opinions. Is there a precedent for that?

MR. HOWARD: Well if you read the decisions of the Warren Court when Hugo Black and Felix Frankfurter and Bill Douglas and those people were trading blows. I think the language that they used in describing each others jurisprudence was just as strong as anything you see now. There is a curiously comity on the Court that they can sound like they are the most bitter of enemies in their opinions and yet they can shake hands before they come in to the Bench after conference.

MR. LEHRER: What does the Rehnquist Court, what does its approach toward precedent appear to be, for instance, we will be talking about this in detail in a moment, but in the civil rights areas and in affirmative action the abortion decision. It seemed like the Court was moving was willing to look back on other decisions and say okay we disagree. How would you read that?

MR. HOWARD: Well there is a certain caution on the face of the opinions for example in the abortion case the plurality opinion by Chief Justice Rehnquist says we don't need to consider whether Roe V Wade need be overruled and like wise in a civil rights case much heralded this spring the court decided not to over rule Runyon Versus McCrary, a case from the 1970s which had been reargued before the Court this term but if one goes beyond the face of the opinion for example in the abortion case itself Chief Justice Rehnquist may have purported not to over rule Roe but it is very difficult to read his opinion without realizing that is a case if it were up to him has a very short life span indeed. He dissented in Roe V Wade. he has no use for its reasoning. He wants it out of there and I think that it is really a bit like knee capping a victim.

MR. LEHRER: What is the history on that sort of thing. About Supreme Courts sitting in past decision of their own predecessors?

HOWARD: Well when they start moving in a new direction it is very common in the first case that begins to change to say that we are going to redefine or reconsider or undermine or in some way limit the reach of this earlier precedent and another two or three years pass another couple of cases come down and finally the Court reaches a point where they look back to the precedent and they say well they say my goodness this precedent is really nothing. There is nothing left of it is just an empty shell. We might as well admit that it is dead. I think that the Court would rather be coroner rather than executioner.

MR. LEHRER: We have a Rehnquist Court as you say. This conservative majority is here finally after 20 years. Describe it in terms of names of these 9 people on this Court to what has brought this about finally?

MR. HOWARD: We are labeling this the Rehnquist Court, you can also call it Reagan's Court. It is a classic example of the influence which a President can have on the Supreme Court through the power of appointment. During his 8 years in Office President Reagan only got to fill three vacancies on the Court and of course he also moved Rehnquist up to be Chief Justice but those three Justice's are 3 of the 5 who make up what I would call a working conservative majority on the Court. The rate of agreement this past term among those appointees and Rehnquist, between O'Connor and Scalia and Kennedy and rehnquist hovers around 90 percent.

MR. LEHRER: That is unusual is it not?

MR. HOWARD: It is very high indeed. I mean there are examples of it in the past but it is fairly uncommon to find as many as 5 Justices all having that rate of agreement with each other and it is because of that that we are watching a Court which for the first time in 20 or 25 years may now fall in a pattern where one can begin to predict ahead of the fact what sort of opinions that they will hand down.

MR. LEHRER: Now the Warren Court was identified by the strong leadership of Earl Warren. Is there evidence that Rehnquist is strongly leading this Court or did he just happen to get some like minds?

MR. HOWARD: Well a very curious thing is happening. We remember a few years back when Justice Rehnquist before he became Chief was often the loan dissenter. If the Court voted 8 to 1 in a case the 1 was likely to be Rehnquist as not and one had the impression that he was perfectly happy to cast his vote. If he stood by himself it didn't trouble him at all. In the three years that he has been Chief Justice one gets the impression that Rehnquist is beginning to see this, the troops are assembling. He now actually has the votes to begin to lead a parade and as a result I think that he is making intelligent and skillful use of his power in assigning opinions. There is no evidence that Rehnquist is keeping all the big cases for himself.

MR. LEHRER: Why is that important?

MR. HOWARD: Well I think that if he were that would be an ego trip. What he appears to be doing is assigning the majority opinions when he is in the majority to the other people in the block. For example Justice Kennedy, who is in effect a freshman Justice, his first full term on the Court, was given a couple of major opinions this time along with the more senior Justices on the Court. I have the impression that Rehnquist is deciding who will write these opinions with the view of shaping a cohesive and enduring majorities on his wing of the Court.

MR. LEHRER: Thank you. Now in to the discussion come two other legal scholars with two different views of the Court. George Town University Law Professor Eleanor Holmes Norton who headed the Equal Employment Opportunity Commission in the Carter Administration and Former Solicitor General and Federal Court of Appeals Judge, Robert Bork. Whose nomination to the Supreme Court was defeated by the Senate in 1987. He is currently the John M. Olin Scholar in Legal Studies at the American Enterprise Institute. Eleanor Holmes Norton what words would you use to describe this new Rehnquist Court.

ELEANOR HOLMES NORTON, Professor of Law, Georgetown University: I think that it is a Rehnquist Court but only partly because of Justice Rehnquist. I think that the single most important thing that has happened to create this Court is the addition of Justice Kennedy to the Court because now the Court has a reliable conservative majority for many of the issues that have been most controversial in the United States, whereas, Justice Powell whom Justice Kennedy replaced was it seems to me a more balanced Justice who could not be depended to go with one side of the Court or the other even though most of the time he voted a conservative.

MR. LEHRER: What is your view of this Judge Bork?

ROBERT BORK, John M. Olin Scholar in Legal Studies, American Enterprise Institute: Well it is not what my colleagues have here but I think that this is a Court that does not have a working conservative majority. I think this Court has moved closer to the center but I think that it remains a slightly left liberal Court and if you look at decisions such as the dial a porn decisions which allowed the pornography by telephone to flourish, if you look at the religious cases eliminating a sales tax exemption for religious books, and if you look at the flag burning decision that is jot a working conservative majority. I think that the abortion decision turns out to be 4 to 4 to 1. That again is not a working conservative majority in that case. Now in the civil rights cases I think that the adjustments were rather modest. They moved away from rules that produce quota but they haven't really done any major cutback.

MR. LEHRER: Do you see it that way?

MS. NORTON: Not at all. The fact is that to have a working conservative majority you don't have an iron clad majority on every issue. It is almost insulting to the Justices to believe that they would be incapable of dividing on some issues. You've never has that kind of working conservative majority on the Court that I know of. But the fact is that on issue where you never had an operating conservative majority before you now have it and those are many issues that truly count such as civil rights. Far from moving the Court as Bob Bork says toward the center you have a radical departure in those decisions. Just to name one of them the burden of proof which has been critical to how one goes at proving discrimination which is a very difficult thing to prove, it's been turned on its head without any intervention by the Congress. The Webster decision, to take the abortion decision.

MR. LEHRER: That is the abortion decision, right.

MS. NORTON: You have the court, in effect, not overruling the decision but stripping away the basic framework that had been in place and that was the essence of the decision, that is, the trimester system for deciding when a woman can have an abortion. When you can get a court to move in these directions in one term, I should think that conservatives should be quite satisfied that they have a working conservative majority.

MR. LEHRER: But you're not satisfied.

JUDGE BORK: Not a bit, not a bit. On the abortion decision, it's kind of interesting, because the fact is that under a system of separated powers we are supposed to have a court that applies law made by others. The court has no jurisdiction over the abortion question one way or the other. It should have gotten out of the business a long time ago. It hasn't. And it's too soon to predict that it absolutely will.

MR. LEHRER: What about this, the word libertarian has been thrown around a lot lately, particularly since the flag decision because of Judge Kennedy and particularly Judge Scalia who voted with the, with three liberals in that particular case, does that have meaning to you, Judge Bork?

JUDGE BORK: I think what it means is that a rampant individualism has been built into first amendment doctrine and other doctrine by past liberal courts, and this court has not yet rethought that line of doctrine. And I don't know that it will ever will.

MS. NORTON: Notice that Bob Bork keeps saying things like rethink the line of doctrine. What he really wants this court to do is to overrule its past precedents, and that is precisely what conservative courts do not do. They are supposed to respect their precedents. If they got out of the business of abortion for example, they would have to overrule Roe. In fact, the court has found a far more clever way to proceed. They do not overrule decisions; they simply strip away all the flesh and leave you with a bone there that all but overrules their decisions.

JUDGE BORK: Sounds very attractive.

MR. LEHRER: Is she right though?

JUDGE BORK: No, no. Liberals always tell conservatives the conservatives should respect precedent, and the reason they like that is because the precedent is liberal. Now if you go back to Earl Warren's day, they overruled case after case, they changed doctrine completely and built it into a very liberal left constitutional doctrine. And now we're told that true conservatives would never undo that. That means that there's a liberal ratchet in constitutional law.

MS. NORTON: Could I --

JUDGE BORK: I see no reason why there should be.

MS. NORTON: Let me just make it clear that I do believe the court should overrule a precedent when necessary. What I am saying is that conservatives do not believe that and if they don't believe that, then Roe ought to be allowed to stand and they ought to respect precedents instead of stripping them away the way they have this term of court.

JUDGE BORK: I just learned I wasn't a conservative.

MS. NORTON: You are to the right of a conservative.

JUDGE BORK: No, middle of the road.

MR. HOWARD: Jim, could I jump in on this

MR. LEHRER: Sure.

MR. HOWARD: Let me make one observation about what the conservatives will not accomplish on the court. I think they will push doctrine back towards the center, as Bob would have it.

MR. LEHRER: What do you mean by doctrine?

MR. HOWARD: Doctrine, what the cases actually say or what they hold.

MR. LEHRER: Okay.

MR. HOWARD: What they won't accomplish is bailing out of the business of deciding these cases, the question of agenda. The questions like capital punishment, abortion, commercial speech, you go right on down the line, issues that never used to be in the Supreme Court twenty, twenty-five years ago are there and the liberals and conservatives will push from side to side, but what won't happen is the court to simply say these cases don't belong here. They may overrule Roe or whatever, but they'll stay in the business of abortion cases.

MR. LEHRER: An interesting point that I wanted to ask about, the court took on flag burning, you go down the list, affirmative action, couldn't the court have said, no, we don't want to deal with these things, just passed on it?

JUDGE BORK: It could have. It can usually just deny certiorari, but that would not be a very responsible thing to do.

MR. LEHRER: Why would it not be responsible?

JUDGE BORK: Well, if they think doctrine, if they think the rules are producing results, they ought to re-examine them and I think that's what they did. You see in the civil rights cases, I think they saw that the rules about the burden of proof and so forth were making the situation in which discrimination was assumed, rather than being proved, which pushes employers towards quotas. In order to escape lawsuits, you adopt a quota, and for that reason they redid the rules to prevent that from happening.

MS. NORTON: Nobody who's ever tried a Title 7 case --

MR. LEHRER: What is a Title 7 case?

ELEANOR HOLMES NORTON, Georgetown University Law Center: A Title 7 case is the job discrimination law that Bob Bork just mentioned. The fact is that if you are following the statute -- and by the way I thought that that was what conservatives were supposed to do --

MR. LEHRER: They're --

MS. NORTON: -- and 18 years ago conservative Justice, Chief Justice Burger said that the statute said that the burden was the way it has been for 18 years, and you turn around 18 years later, and say that's not what it should be at all. The question of quotas is quite a red herring. The burden of proof doesn't have anything to do with quotas. The court, itself, in the last three or four terms of court have approved quotas. If they are dissatisfied with quotas, then go after quotas. Don't go after burden of proof. That, in fact, keeps you from proving discrimination in the first place even when that discrimination is there and remember, if your concern is quotas, the employer will realize that he is liable for a reverse discrimination suit if he simply imposes quotas where quotas shouldn't be imposed.

MR. LEHRER: Is this another case, Dick Howard, where the court hasn't thrown out affirmative action, but it is pulling it apart little by little?

A.E. DICK HOWARD, University of Virginia: I think so. What strikes me about the line of civil rights cases, we had cases that made it harder to have an affirmative action program, harder to defend one, cases which make the burden of proof more difficult for civil rights plaintiffs, cases which narrow the application of civil rights statutes. Each of those cases standing by itself may be a bit technical, but what they say to me as a line of cases is for the first time probably since the Warren court days, the Supreme Court is not inclined to look at race cases as being different from other cases, not inclined to read civil rights statutes as being different in kind from other statutes. In other words, they've taken civil rights cases and sort of brought them into what they, the majority on this court, would say is the mainstream of statutory interpretation. That obviously is a sea change in how the court's been behaving.

MR. LEHRER: Sea change?

ROBERT BORK, American Enterprise Institute: It may be a sea change but it seems to me to treat civil rights cases like other law is exactly what a judge should be doing. He shouldn't be making up a social policy, and twice in the burden of proof case, Justice White mentioned that the reason for changing the law was that the way it was was forcing employers to move to quotas to avoid liability.

MR. LEHRER: Look, before we move on, I want to ask the two of you a question I asked Dick Howard, and that is, are you concerned at all, beginning with you, Judge Bork, about the bitter words and the divisiveness, the 5 to 4 decisions of this court?

JUDGE BORK: The bitter words have gone on for a long long time. I was once standing in the court with a Senator and after he heard the dissent decision being read, he turned to me and he said, "Do they always talk to each other this way?". He said, "We don't talk to each other this way.". The five to four decisions are bound to be that way so long as the court is ideologically split. Now if it were a court that took politics less into account and legal doctrine more, the splits would be less obvious and perhaps the bitterness would be less obvious.

MR. LEHRER: But what message does this send to the country when you hear this kind of thing, Eleanor Holmes Norton? In other words, if the Supreme Court of the United States is split 5 to 4, then doesn't that encourage everybody else to be split 5 to 4 and not come together on a particular issue?

MS. NORTON: Well, on some of these issues, such as abortion, people are split 5 to 4 I'm afraid.

MR. LEHRER: But what I mean is what does the court then resolve when it votes 5 to 4 on a certain issue?

MS. NORTON: Particularly on these decisions it doesn't resolve very much because it's often not a decision of the court, but I hope people don't misinterpret the bitterness of the language of the court, because I think I heard Bob Bork say something I agree with there, and that is that's been the case on the court for a long time and yet the court is not known for personal bitterness between and among themselves. They do feel deeply about these subjects. If you were Justice Blackmun, for example, and you had to sit there and watch a plurality tear apart essentially your great abortion decision, you'd feel very strongly too. But I don't think and I hope the people will not, I hope that we will not take our cues on how to behave from a sense that these Justices are at one another because I think that's not true.

MR. LEHRER: I'm afraid I'm going to get a certain answer from the three of you because the three of you come out of the legal world, but it was suggested to me over the weekend that politicians would do well to follow the procedures or the practices of the members of the Supreme Court who speak very frankly about the issues and very honestly about it, and don't cover it with all kinds of flowery language but behave together personally in a very good way. Does that make sense to you, Dick Howard?

MR. HOWARD: Jim, I think there's one thing that's unique about the judicial branch. Granted, those of us who criticize their opinions will say they were a bit disingenuous here, and they hid the ball there, but the one thing that it is a custom, a tradition that is unique among the three branches, the Judiciary is obliged to articulate and explain how it reasoned and how it got to a result.

MR. LEHRER: Even if it makes 'em hot?

MR. HOWARD: Even if it makes 'em hot, but they're bound to print an opinion that says here's how we started, here's our reasoning, here's where we came out. Then it's up to others to criticize it.

MR. LEHRER: Do you agree?

JUDGE BORK: Sometimes or all too frequently the reasoning that's expressed in the opinion is rhetorical, and it does not really hold water when you analyze it. I'm afraid Judges have a bit of a political impulse in them these days and I would not greatly care to see the Senate debate matters in the same tone that the Justices sometimes debate it.

MS. NORTON: Although I do hope the Senate and the House and particularly the state legislatures will find a civil way to debate the abortion question. The fact is that some of the judiciousness in opinions might not be misplaced as we try to find a way to settle this very divisive issue.

MR. LEHRER: Thank you. Robin.

MR. MacNeil: Now for two other views of the court in its term, we turn to Norman Podhoretz, Editor of the magazine "Commentary", and Barbara Jordan, former Democratic member of Congress from Texas, who's now a Professor at the University of Texas at Austin, where she joins us from public station KLRU. Barbara Jordan, what is your characterization of this court?

BARBARA JORDAN, University of Texas: [Austin, Texas] Robin, I characterize this court as one which made champions of civil rights, civil liberties, the right to privacy cringe, feeling that proponents of civil rights and civil liberties and right to privacy would feel that this court is not their friend and that many old battles which we thought were won must be refought because this court has refused to move forward in a natural progression of advancement.

MR. MacNeil: How would you characterize it?

NORMAN PODHORETZ, Commentary: Unhappy as I am to disagree with Bob Bork, I think that this court has been moving toward a rectification of some of the excesses of the recent past, excesses involving judicial usurpation of powers that properly belong under our systems in the legislatures and excesses in the sense of interpreting both the Constitution and legislation in a perverse manner, sometimes so perverse that it overturns the plain sense of the statute or of the Constitution.

MR. MacNeil: Would you agree with Barbara Jordan that people concerned about civil rights and liberties should cringe before this court?

MR. PODHORETZ: On the contrary, it seems to me that the issue of civil rights, what you're seeing is an effort to undo some of the harm that has been done by interpreting the great civil rights legislation, the Civil Rights Act of 1964 particularly, in a way that the people who agitated for it and the people who passed it never intended, that is, as a warrant for reverse discrimination and quotas. Hubert Humphrey who was the floor leader for that bill in the Senate said he would eat the document if it was ever used to justify such practices, but it has been used to justify such practices, particularly by the court, and I think it has done a great disservice to the cause of civil rights properly understood in so doing. As for civil liberties, the court, this particular court, has moved, it seems to me, in the opposite direction. The flag burning case, the Dial-A-Porn case mentioned by Judge Bork, should give great comfort to people who think that the first amendment legitimates any form of, not only of speech but any form of expressed behavior.

MR. MacNeil: Why should civil rights, people concerned about civil rights cringe, Ms. Jordan?

MS. JORDAN: I say that people would cringe when they're concerned about civil rights, as in one of the cases which the court decided during this term, those battles which contestants felt had been won, that is, dissent decrees had been entered, we had the court deciding during this term that even though you have fought that battle and you have a consent decree that all parties agree to if there is a subsequent party who was not alive and well and a participant in that case, that party can refight that battle one more time. That is why I would cringe and that is why persons who believe that they have fought these battles and won these battles and now to know that new voices come in and you have to do it all over again, that's why one cringes.

MR. MacNeil: Do you have a comment on that?

MR. PODHORETZ: Yeah. Well, some of the battles that were supposedly won were lost in the legislatures, that is, were lost in the political process and won through judicial usurpation of legislative powers. What the court is doing in a lot of these cases is returning these issues to their proper venue, namely the legislatures. That is particularly true of the abortion decision, also of the capital punishment decisions. I applaud that as truer to our system of checks and balances and separation of powers than the tendencies of the past. As of the case Barbara Jordan just mentioned here, what you have here is the court saying that an individual who committed no wrong, who never discriminated against anyone, and who was being discriminated against because of arrangements entered into by other people has a right to challenge that, the court is giving that individual who is the victim of a wrong in this case the right to challenge it. I think that's good, not bad.

MR. MacNeil: Judge Bork said it would be less bitter in this court if they took politics into account less and legal doctrine more. On the line of taking politics into account, what do you make of Justice Scalia in the capital punishment decision which said it is not unconstitutional to execute people who commit murders at sixteen or seventeen talking about no consensus in the country on cruel and unusual punishment?

MR. PODHORETZ: Well, as I understand his argument, it was the fact that a number of legislatures, I forget the numbers, 16 or something, permit execution of minors who've committed certain heinous murders, the fact that there are such provisions proves that this is not considered cruel and unusual -- this should not be considered cruel and unusual punishment, that is, it is not considered cruel and unusual by contemporary public opinion as measured by the state legislatures. I think that's his argument. He contradicts that argument, by the way, in his acquiescence in his opinion in the flag burning case where there is clearly no consensus behind that decision, but he agreed to majority.

MR. MacNeil: What do you think, Barbara Jordan, of Scalia's use of the word "consensus" as justifying a decision?

MS. JORDAN: I believe that the Justices of the Supreme Court should take firm cognizance of what they are supposed to be about. The Supreme Court has a unique role to play in our society. It is an independent, an independent entity, an independent branch of government. It was supposed to be able to take the slings and arrows and make decisions not on the basis of what was political, but on what appeared to be right. I believe that the Supreme Court should be able to move ahead of the pressures and passions which sort of caused people to make unwise decisions and make those decisions notwithstanding the politics of the matter. I believe that Judge Scalia should make sure that he understands he is not a part of a political branch and that he can make decisions as a Justice of the Supreme Court without regard to what the politics of the matter seem to be.

MR. MacNeil: So you agree that the court, with Robert Bork, that the court is taking politics into account?

MS. JORDAN: It would appear that the court is taking politics into account.

MR. MacNeil: What do you think?

MR. PODHORETZ: Well, my view is that this court is trying to do less of that than has been the practice in the last 20 or so years. The fact is that with all due respect to Barbara Jordan, the function of our judiciary system is not to do what is "right"; the function of the judiciary is to interpret the laws that are made by the legislature and the function of the Supreme Court in certain cases is to interpret the Constitution, not to rewrite it, not to read their own moral views into that document, or into the products of our political system, mainly our laws. Scalia, as I understand his judicial philosophy, believes that that is his precisely his role, namely to interpret the law, not to make the law. He referred to consensus, it seems to me, as part of an argument over cruel and unusual punishment. How do you know whether punishment is cruel and unusual? Well, you have to say is it, in fact, unusual in our contemporary context, and he pointed to these legislatures as evidence that it was not unusual. I don't think that's a political judgment; that's a legal one.

MR. MacNeil: Let me ask you this. Just quickly, Barbara Jordan, do you agree with Dick Howard that the trend of this court is so apparent now that future decisions can with some reliability be predicted?

MS. JORDAN: I believe that the trend of this court is apparent and that you could predict future decisions. I would posit that anyone could have predicted how the court would rule in the most recent abortion decisions, not that they would have various combinations of justices making rulings, but that they would not overrule Roe V. Wade outright but would cut back and eviscerate the rationale in Roe V. Wade. I think it is a predictable court and I regret that.

MR. MacNeil: If it's a predictable court, Mr. Podhoretz, and you're a conservative, and if you agree that it's a predictable court, where do you see it going in the future on some areas that are of great concern to the society, for instance, on civil rights, on abortion, on free speech, and on crime and on the rights of defendants and so forth?

MR. PODHORETZ: I don't think it is all that predictable. I would not have predicted the flag burning case and I would have not predicted that Scalia and Kennedy would have joined the majority vote.

MR. MacNeil: Okay. Let's leave that one aside perhaps as an anomaly, but what about abortion, where do you predict it going?Is it predictable?

MR. PODHORETZ: My guess is that it will, that Roe will for all practical purposes be overturned --

MR. MacNeil: It has been --

MR. PODHORETZ: -- although there is an unpredictable element here, and that's Justice O'Connor, whose position is a little vague, and I don't think anybody is quite sure what she will do, they don't have her vote, they don't have the necessary five votes to overturn. On civil rights, I think that the tendency, I hope, in fact, that the tendency will be to restore our law and understanding of those procedures to where it should have been and from which it got derailed by previous courts.

MR. MacNeil: You don't think that process is complete yet as you see it?

MR. PODHORETZ: Oh, no, far from it.

MR. MacNeil: Barbara Jordan, where do you predict it going? Let's start with civil rights. Is there further to go in a way that I presume would dismay you in this what Mr. Podhoretz views as undoing things that he thought were wrong?

MS. JORDAN: I don't know how much further the court can go to undo the kind of affirmative action we have made in the past. I believe that in the future affirmative action is at risk. I believe civil rights is at risk. I believe with this court, the future of human rights and civil rights and privacy and those things those of us in one wing and thought in this country believe in are at risk.

MR. MacNeil: And what about abortion?

MS. JORDAN: Abortion, yes. I believe most definitely the next abortion decision to come down will even further eviscerate Roe, if not outright overturn it, there will not be a threat left to hang your hat on.

MR. MacNeil: So the conservatives who started twenty, twenty- five years ago with Goldwater and finally with Reagan, they have got the court now you think they wanted all these years, is that --

MS. JORDAN: That is my view, Robin, and I would like to see some evidence that I am wrong, but I do not see that evidence and I believe that it's disingenuous for anyone to look at this court and say it is not a firm conservative majority. I believe it's there.

MR. MacNeil: Mr. Podhoretz.

MR. PODHORETZ: My view is that civil rights properly understood are not at all in jeopardy from the decisions made by this court. As I understand civil rights, as most Americans understand civil rights, they translate into the right of every individual regardless of race, color, creed, as we say, to be treated equally before the law and not to suffer discrimination. I think that that right is firm and that this court will continue to protect it against abuse.

MR. MacNeil: Thank you both, Barbara Jordan, Norman Podhoretz. ESSAY - PAST PERFECT

MR. LEHRER: Finally tonight, Essayist A.C. Greene takes a look back at the growing interest in looking back.

PRESIDENT BUSH: I want a kinder and gentler nation.

A.C. GREENE: A new President has spoken of a kinder, gentler nation, implying there was a time when American society was kind and gentle and that it is possible to retrieve it. Movies like Mississippi Burning, The Big Chill seem to tell the present generation they've lost a finer yesterday, a yesterday when it was easy to know what was right from what was wrong. But is it that we want to return to another period or that we're afraid to go on? Do we want to reclaim some lost part of our culture, or some part of ourselves? The dictionary's definition of nostalgia is "homesickness" or "a wistful yearning for some past period or some irrecoverable condition.". Our nostalgia, it seems to me, is an attempt to recapture an imagined time when we knew where we stood, knew what and who we could count on in life, not to mention radio, television, and the movies. We would like to return to a time when we knew who "we" were, not needing to know who "they" were. They were dangerous ideas, disturbers of the peace, fugitives from reason that we as a culture rejected. Now "they" is the next person we meet on the street and it's harder and harder to define who "we" are. We are in an individual search for our collective selves. Many towns have historic districts. Streetcars are coming back. Every city has a radio station that plays old songs exclusively. Teen-agers and young adults are charmed by new versions of old tunes their mother and daddy rocked to before they were born. But our new nostalgia is more than historical preservation or recollection. It's a yearning search for lost attitudes. People who could care less about hard pine floors or trolley rides jam the video stores clamoring for untinted black and white movies from the 1930s and '40s. But again it's more than nostalgia. It's something about the time we're living in, not that it's worse or better, but it's scary. It's uncertain. We're looking for certainty, the certainty we think was available back then, the security of knowing that something is still going to be there when we wake up in the morning. We look at the '50s automobiles and water at the mouth. We listen to Walter Cronkite on tape telling about our unified nation of World War II, and we believe the pictured past can be recaptured if we will preserve the frame. We claim we hate violence, but we worship television's tough cops and film's agents of revenge that modern law won't allow us to be. The jacket copy of a current best selling novel speaks of the familiar legend of cowboys, Indians, and gunmen, the violent heart of the American dream. We search for the three "R's" of existence, roots, reasons, and rationale, how to preserve our roots, how to understand why we are like we are, and how to apply rationale to the uncontrolled ride life seems to be taking us on. And so we stare at the past and hope nothing is going on behind our back in the future. SERIES - TALKING DRUGS

MR. MacNeil: Our coverage of the Supreme Court today didn't leave us time enough for our regular Wednesday series on the war against drugs. It'll continue tomorrow, when Charlayne Hunter-Gault talks with the Mayor of Bogata, Colombia. RECAP

MR. MacNeil: Once again, the main points of today's news, Oliver North was fined $150,000 and sentenced to probation, but will not go to jail for his part in the Iran-Contra affair. In Paris, the presidents of France and the Soviet Union made a joint appeal for the cease-fire in Lebanon and an end to arms shipments to that country's warring factions. Good night, Jim.

MR. LEHRER: Good night, Robin. We'll see you tomorrow night. I'm Jim Lehrer. Thank you and good night.