The MacNeil/Lehrer NewsHour

Intro ROBERT MacNEIL: Good evening. Leading the news this Monday, Soviet leader Mikhail Gorbachev said Star Wars, or SDI, remains an obstacle to better superpower relations. The Supreme Court struck an Illinois law requiring a day's wait after parental notification for teenage abortions. The Senate Judiciary Committee began confirmation hearings for Supreme Court nominee Anthony Kennedy. We'll have details in our news summary in a moment. Jim? JIM LEHRER: After the news summary, we look at Supreme Court nominee Anthony Kennedy, with a documentary report, his first day's testimony for the Senate Judiciary Committee, and Nina Totenberg of National Public Radio. Then David Gergen and Mark Shields examine the Presidential politics fallout from the Reagan/Gorbachev summit, and we close with a Roger Rosenblatt essay about a political issue called poverty. News Summary LEHRER: President Reagan and Soviet leader Gorbachev today continued to analyze their own summit meeting. Gorbachev spoke in a televised address to the Soviet people. He said disagreement over SDI, the Strategic Defense Initiative, could bar the way to further improvement in U. S. /Soviet relations. He said the claim that the SDI issue was resolved at last week's summit was a ''dangerous tendency. '' It was President Reagan who made such a claim Friday. Today, Mr. Reagan warned in a Washington speech that no further nuclear arms reductions would come until the Soviet edge in chemical and conventional weapons is mitigated.

Pres. RONALD REAGAN: We and our allies will soon go forward to negotiate with the East in redressing the imbalances in conventional forces in Europe, while, of course, taking the steps we need to strengthen our own conventional forces. And we attach a similar high priority to redressing, again both through negotiations and our own force modernization, the imbalance of chemical weapons, which at present favor the Soviet Union. And we're acting here with a clear understanding that these imbalances must be addressed prior to any further reductions in the nuclear forces committed to NATO. LEHRER: There was also a post summit story about Nicaragua today. The Defense Minister of Nicaragua said Saturday his government planned a defense buildup over the next seven years that would involve advance fighter planes and a 600,000 man army. Today, National Security Advisor Colin Powell said that did not jibe with what Gorbachev said last week at the summit. Powell did his talking on USIA's WorldNet Broadcast.

Lt. Gen. COLIN POWELL, Asst. to President for National Security Affairs: The General Secretary made reference to Nicaragua, and said that it -- they were rather cryptic references, I should add -- and said that it should be possible for them to throttle back their arms shipment to small arms, or even police weapons, he said at one time, if we would do likewise. They were very brief, cryptic references which we have to follow up with the Soviets in the days ahead, and do it rather quickly to see exactly what is in there. MacNEIL: The Supreme Court today struck down an Illinois law requiring teenage girls to wait 24 hours before having an abortion after they've notified their parents. The court was divided 4/4, and the tie vote automatically affirmed a lower court ruling against the state law. Eight states require parental notification, and five mandate a short waiting period. A group of physicians challenged the law, claiming it would increase the number of deaths and medical complications by delaying abortions. In another judgment the court made it easier for mining companies to refuse black lung disease disability benefits to miners. In a six to two vote, the court upheld the Labor Department rule that a single piece of evidence does not entitle miners to the presumption that they were disabled by the disease. LEHRER: The confirmation hearings of Supreme Court nominee Anthony Kennedy began today in Washington. The California Federal Appeals Court judge is President Reagan's third try at filling the seat vacated by Justice Lewis Powell. He was asked today by Senate Judiciary Committee members about antitrust laws, private clubs, privacy and abortion, among other things. On abortion, he said he was a practicing Catholic, but said a judge's personal views on morality should not dictate his judicial decisions.

Judge ANTHONY KENNEDY, Supreme Court nominee: It would be highly improper for a judge to allow his or her own personal or religious views to enter into a decision respecting a constitutional matter. There are many books that I will not read that I do not let, or these days, do not recommend that my children read. That doesn't prevent me from enforcing the First Amendment. Those books are protected by the First Amendment. A man's or a woman's relation to his or her God, and the fact that he or she may think they're held accountable to a higher power may be important evidence of a person's character and temperament. It is irrelevant to his or her judicial authority. LEHRER: The hearings are expected to last at least through Thursday. No major opposition to the Kennedy nomination has surfaced yet, and most Senate observers expect his confirmation. MacNEIL: In Israel, week long violence continued on the occupied Gaza Strip, as Israeli troops shot and killed a Palestinian demonstrator and wounded 17 others. Groups of young Arabs stoned Israeli soldiers today all along the 25 mile stretch of the Gaza strip and in most West Bank cities. The most serious protest occurred at Khan Yunis in the southern part of the strip, where hundreds of protestors threw rocks and bottles, and Israeli troops opened fire. LEHRER: In the Persian Gulf, there was a report today of an Iranian attack on two Greek tankers. The London based Lloyd Shipping Intelligence Unit said the frigate attacks occurred last Friday within 16 minutes of each other. The reports said there was only minor damage and no injuries. The Associate Press said a source told them a Norwegian operated tanker was attacked by Iraqi planes last week. The AP said three crewmen were killed in that attack. MacNEIL: The U. S. dollar fell to new lows today, pushing gold up to $500 an ounce for the first time since 1981. Under pressure from poor trade figures last week, the dollar fell to record lows of l. 62 West German marks, and l27. 35 Japanese yen. This did not dampen spirits on Wall Street. After a 100 point advance last week, the Dow Jones average of 30 industrial stocks rose 66 points today, to close at 1932. 86. Advancing issues outnumbered those declining by a three to one margin. Texaco devalued its currency today as one of a series of measures to shore up the economy. The peso value was reduced by 22% to 2000 pesos to the dollar. LEHRER: The U. S. Postmaster General sounded a service cutback today. Preston Tisch said a $2 billion budget cut approved by the Senate Saturday could mean drastic changes in postal service and an increase in the price of postage. The service reductions could include no Saturday delivery and closing small post offices. Chrysler agreed today to pay back $16 million to customers to bought new cars that really weren't new. The company pleased no contest in a St Louis Federal Court to charges its employees drove cars with their odometers disconnected and sold them later as new Chrysler admitted the practice was ''stupid. '' The agreement involves payment of at least $500 to the owners of 32,000 vehicles. MacNEIL: In the Plain States and the Southwest, a major snowstorm was blamed for at least six deaths. The storm dumped up to 28 inches of snow and left drifts of up to five feet. New Mexico was hardest hit with many highways closed and motorists stranded in scores of vehicular accidents. Ninety mile an hour winds caused power blackouts for 7,000 customers in the Albuquerque area. In Eastern Colorado, the storm deposited a foot and a half of snow and triggered a 70 car pileup on Interstate 70. One storm related death was reported in Texas, two in Oklahoma, two more in New Mexico and one in California where a woman was killed by a falling tree. LEHRER: And that's it for the news summary. Now, Supreme Court nominee Anthony Kennedy, summit politics and Roger Rosenblatt. Number 3 MacNEIL: Our major focus tonight is Supreme Court nominee Anthony Kennedy, who went before the Senate Judiciary Committee today, the third of President Reagan's choices to fill the vacancy on the high court. Kennedy, a U. S. Court of Appeals judge in Sacramento, was questioned about his legal and philosophical views by a committee much tamer than the one which grilled Judge Robert Bork in September. We'll have excerpts and analysis of today's hearing. But first, Spencer Michels of Public Station KQED, San Francisco, has this report on Judge Kennedy's record as a jurist.

SPENCER MICHELS: Since he became a federal appeals court judge, Anthony Kennedy has been deliberating and writing on a wide range of legal issues. But until now, his views attracted little attention beyond Sacramento. His swearing in at the McGeorge Law School, where he was taught constitutional law, was recorded not by the press, but by the school. He told his colleagues then that what he admired most in the legal profession was simply the work of practicing lawyers. Judge ANTHONY KENNEDY: The Constitution, remember, was written for debate. It was written by lawyers, not judges and not law professors, but practicing lawyers, and very much like the men in this room: sensible men who knew how to write.

MICHELS: Today, 12 years later, many of Judge Kennedy's colleagues are praising him for those same qualities. Sacramento attorney Joseph Genshlea, a liberal Democrat and lifelong friend, argues that Kennedy's background will be an asset on the high court. JOSEPH GENSHLEA, Sacramento attorney: I think he'd bring something to the Supreme Court that the court really doesn't see enough of, and that is somebody who's been in the trenches as a lawyer, and not with a big law firm or with the government, but in small private practice in a medium size town, and has dealt with the kinds of cases that eventually percolate up to the Supreme Court.

MICHELS: When President Reagan first introduced Kennedy and his family to the nation, it culminated a relationship and philosophical bond that went back 15 years to when the young Sacramento attorney and lobbyist helped the then governor of California write and campaign for a tax cutting measure. At the White House, Reagan applauded the judge's adherence not to a personal agenda, but to the Constitution. Pres. REAGAN: Judge Kennedy is what many in recent weeks have referred to as a true conservative.

MICHELS: Just what kind of a conservative Kennedy will turn out to be is a matter of some debate. Prior to his confirmation hearings, he refused to speak publicly, but scholars and advocates have been poring over his more than 400 written opinions for clues to his ideology. One thing they seem to agree on is that he sticks often narrowly to facts of a specific case, because he's wary of judicial power. JOHN OAKLEY, University of California: He thinks judges should be very cautious in reading their own values into the Constitution. I think that's a genuine position of judicial restraint.

MICHELS: At the University of California at Davis Law School, Professor John Oakley says Judge Kennedy is concerned about the abusive power by the Supreme Court. Prof. OAKLEY: He's very concerned that there aren't many checks on the reading of the Constitution by Supreme Court justices. The confirmation process is one check, and that's why he's invited for a close scrutiny.

MICHELS: Oakley considers himself a liberal. He believes that Kennedy, despite his reputation as a conservative, is very balanced when it comes to safeguarding the rights of criminal defendants. Prof. OAKLEY: He recently wrote an extensive case involving a loansharking operation in Las Vegas in which he held that a warrant shouldn't be issued, and a lot of evidence was suppressed, because the police didn't have clear enough guidance on just what they were supposed to be looking for when they entered private property. I think he's concerned that there be an appropriate balance between the need for society to function efficiently and respect for individual autonomy. I think insofar as he's called upon to decide new novel cases, he probably will come down more on the conservative side of the court. He's not viewed as a person who has an agenda of his own.

MICHELS: Barry Portman, the federal public defender in San Francisco isn't worried about Kennedy's conservatism, even though he's lost six of the seven criminal appeals he has presented to the judge. BARRY PORTMAN, ederal public defender:F One out of seven isn't a terrific batting average, although from a defense standpoint, that's not all that unusual. They seem to be opinions that were recently supported by the record. And they did not seem to be an unfair use of the record. And while I may have disagreed with the result, I could certainly see how a reasonable judge could have reached the one that he did.

MICHELS: Portman cites Kennedy's dissent in a drug smuggling case as an example of the judge's belief that a suspect must have knowledge of his crime to be convicted. Mr. PORTMAN: Judge Kennedy took out an example of a child being handed a box and being told to bring this box to someone across the border, and the child didn't look in the box. Maybe the child should have looked in the box. But he felt that it was unfair that a person be convicted because the person was negligent and didn't look in.

MICHELS: The most vocal objections to Judge Kennedy's nomination come from women's groups, which cite his longtime membership in private clubs that do not admit women. Judge Kennedy recently resigned from San Francisco's Olympic Club and from the Del Paso Country Club in Sacramento over those policies. In a letter to the Senate, he said that such discrimination policies can cause harm, even though no ill will is intended. MARY DUNLAP, San Francisco attorney: He didn't resign from the Olympic Club until two days before he was seriously a contender. And that isn't a good sign. I think -- why was he a member of the club to begin with, and why did he tolerate or buy the policies of the club up to that point?

MICHELS: In San Francisco's working class mission district, Mary Dunlap practices civil rights law. Based on her reading of Kennedy's opinions, she fears that if he is confirmed, he will consistently rule against women and minorities. Ms. DUNLAP: I'm worried that this judge, on the basis of the decisions I've read, only follows the law in a consistent way where it upholds a kind of governmentally oriented status quo, and where there's an individual who's wrong by that status quo, Judge Kennedy is less than forthcoming in the equal protection of the law that he as a judge has to afford.

MICHELS: Dunlap, a women's rights activist, also condemns Kennedy for his opinion in the State of Washington's well known comparable worth case. Ms. DUNLAP: The university paid women less for work of exactly equal value to men. Judge Kennedy said, ''Well, that's the free market. '' There's nothing free about a market that openly discriminates against women, and it shows not only a lack of compassion, but a lack of understanding of what discrimination is -- to call that a free market. BRIAN LANDSBERG, McGeorge Law School: He was essentially saying this was a legislative issue. He didn't say comparable worth was loony tunes -- which has been said. He simply said whether comparable worth was a good idea or a bad idea is a matter for the legislature, not for the courts.

MICHELS: Attorney Brian Landsberg is a teaching colleague of Judge Kennedy at the McGeorge Law School. Before coming here, he worked for 20 years in the civil rights division of the Justice Department. He cites another Kennedy case involving voting rights that shows that even though the judge is sensitive to the rights of minorities, he is even more insistent that the law be followed precisely. In San Fernando, California, Mexican Americans had sued the city, charging that legal roadblocks imposed by Anglos had kept the predominantly Hispanic population from electing one of their own to the City Council. Hispanics in fact could not even vote in their own neighborhoods. Yet, Landsberg said that because of Kennedy's strict interpretation of the law, he voted to deny the Hispanics relief. Mr. LANDSBERG: He said he was troubled by the case. He said he thought that there was proof of some discrimination against Hispanic Americans, and that they should be entitled to some relief. But they hadn't asked for the right relief. In other words, they wanted to institute a new electoral system.

MICHELS: In the historic section of Sacramento, Hispanic activist Victor Cabral practices law and serves as President of California's La Raza Attorneys. He says the discrimination in San Fernando was blatant and should have been remedied by Judge Kennedy. VICTOR CABRAL, La Raza: There were facts that from the very beginning of that city that showed that the minority -- the Mexican American population, who constituted 50% of the community -- were prevented from participating in the political process. The standards that he set for civil rights case is near impossible to me. That is, it's nearly impossible to prove a case of civil rights discrimination in front of Judge Kennedy.

MICHELS: Despite accusations from the left that he's too conservative, Kennedy has been attacked by some conservatives as being too liberal. Hoping to avoid a clash with the right, Kennedy met with Republican Senator Strom Thurmond, who had been reported as skeptical. Thurmond pledged his support. But other conservatives are especially disturbed by Kennedy's decision in a case involving homosexuals in the military. He ruled that the Navy had a constitutional right to dismiss homosexuals, but it was a narrow opinion that did not condemn private acts of homosexuality. And that's what bothers the far right. But attorneys of the conservative Pacific Legal Foundation in Kennedy's hometown, do not find that decision troubling. Attorney Robert Best: ROBERT BEST, Pacific Legal Foundation: Clearly, the opinion is -- does not come out against homosexualism. In fact, Judge Kennedy even has some language in that opinion where he says the regulations here may be unwise. You don't have him hanging a philosophical position onto his decision. Nonetheless, he's -- when he came down on his final ruling, he ruled the result was against homosexual behavior in the military. But what he simply said was that the Constitution doesn't require the Navy to allow this to go on. But he was very careful to limit it to this case -- in other words, not to rule beyond the case.

MICHELS: Kennedy's friend Joe Genshlea sees the judge's personality as a major influence on how he crafts his judicial opinion. Mr GENSHLEA: He's a guy that's comfortable with his wife, he's a guy that loves being a judge. He's a relatively happy guy. And he doesn't have that anxiety or that need to try to force an issue or push his opinions on people. Mr. BEST: If you're a conservative looking for an activist judge, a conservative activist judge, reading Judge Kennedy's opinions tells you you're not getting a conservative activist judge. You're getting a conservative conservative conservative judge. And so if you're looking for the courts to advance your social agenda, then you're not going to find in Judge Kennedy the flag carrier for your social agenda.

MICHELS: Meanwhile, Kennedy had prepared for a tough round of questions from the Senate Judiciary Committee. Though all indications are that with his background the Senate sessions won't be nearly as grueling as the hearings on Judge Bork. MacNEIL: And now to the testimony before the Judiciary Committee today. Judy Woodruff has been following that. Judy? JUDY WOODRUFF: The atmosphere in the Senate Caucus Room was far calmer today than it was last September during the Bork hearings. In fact, many members of the Judiciary Committee were absent for much of today's testimony. There were nevertheless questions raised about Judge Kennedy's background and his beliefs, beginning with the issue that proved controversial for Judge Bork -- whether the Constitution guarantees individuals a right to privacy. Kennedy responded to a question that had been posed by the Democratic Chairman of the Judiciary Committee, Senator Joseph Biden. Judge KENNEDY: The framers had an idea which is central to western thought. It's central to our American tradition. It's central to the idea of the rule of law And that is that there is a zone of liberty, a zone of protection, a line that's drawn where the individual can tell the government, ''Beyond this line you may not go. '' Now, the great question of constitutional law is, one, where is that line drawn, and, two, what are the principles that you refer to in drawing that line? JOSEPH BIDEN, Chairman Judiciary Committee: But there is a line? JUDGE KENNEDY: There is a line. It's wavering, it's amorphous, it's uncertain. But this is the judicial function. Sen BIDEN: Do you have any doubt that there is a right of privacy -- I'm not asking you where you draw the line, but that it does exist and can be found protected within the Constitution. JUDGE KENNEDY: It seems to me that most Americans, most lawyers, most judges, believes that liberty includes protection of the values that we call privacy. As we well know, that is hardly a self defining term, and perhaps we'll have more discussions about that.

WOODRUFF: Biden zeroed in on meetings Judge Kennedy has held with members of the Reagan Administration and the Senate, and asked if there were any deals he might have cut. Sen. BIDEN: Have you made any commitments or promises to anyone in order to obtain their support for your nomination? JUDGE KENNEDY: I have not done so, and I would consider it highly improper to do so. Sen. BIDEN: So just to make the record clear, you made no promise to any member of the Senate on anything? JUDGE KENNEDY: Other than I would be frank and candid in my answers. Sen. BIDEN: Judge, I'm not doubting you for a minute. As I'm sure you're aware, though, one of my colleagues is reported to have spoken with you about the issue of abortion on November 12 in a meeting at the White House. Let me read to you -- and I'm sure you've seen the text -- I have it here and will not -- from a newspaper article by a columnist named Cal Thomas. And Mr. Thomas says the following -- and I'm quoting from his article. ''Republican Senator Jesse Helms of North Carolina told me that he and Judge Kennedy met in a private room at the White House on November 12. 'I think you know where I stand on abortion,' Mr. Helms said to Judge Kennedy. Judge Kennedy smiled and answered, 'Indeed I do, and I admire it. I am a practicing Catholic. ' Judge Kennedy did not elaborate. Mr. Helms interpreted the response to mean that Judge Kennedy is opposed to abortion and would look favorably on any case in which the court's earlier decision striking down the abortion laws of all 50 states might be overturned. '' Could you -- for the record -- characterize for us how accurate or inaccurate you think that column is. JUDGE KENNEDY: I think it is important to say that if I had an undisclosed intention or a fixed view on a particular case, an absolutely concluded position on a particular case or particular issue, perhaps I might be obligated to disclose that to you. I do not have any such views. With reference to privacy or the other subjects there mentioned. And therefore, I was not attempting, and would not attempt, to try to signal by inference or by indirection my views on those subjects. The conversation that you refer to was wide ranging of a personal nature, in which the Senator asked me about my family and my character, and I told him, as I've told others of you, that I admire anyone with strong moral beliefs. Now, it would be highly improper for a judge to allow his or her own personal or religious views to enter into a decision respecting a constitutional matter.

WOODRUFF: Democratic Senator Edward Kennedy focused on the nominee's former membership in private clubs which exclude women and minorities. Sen. EDWARD KENNEDY, (D) Mass. : As you know, in 1984, the American Bar Association amended the commentary to its code of judicial conduct to provide, and I quote: ''It's inappropriate for a judge to hold membership in any organization that practices (unintelligible) discrimination on the basis of race, sex, religion, or national origin. '' And it would seem from your questionnaire that you belonged to three clubs that discriminated against women, and one or more of these clubs may have discriminated against racial minorities as well. As I understand it, the Olympic Club is a country club in San Francisco which also has a downtown athletic facility with meeting rooms, dining, residential facility and has about 4,000 members. When you joined the Olympic Club in 1962, its membership was expressly limited to white males, and apparently that explicit restriction on racial minorities was lifted in January of '68. Today, there's still, as I understand, no active black members of the club, and women still cannot be full members of the club. you were a member of the Olympic Club for many years before you became a federal judge. You continued to be a member of the club for 12 years after you became a federal judge, even though it discriminated against blacks, women -- you apparently didn't try to change the discriminatory policies at the Olympic Club until this summer, and you didn't resign until your name evidently surfaced on the short list of potential nominees. My question is a simple one, and that is simply why did it take so long? JUDGE KENNEDY: With reference to the Olympic Club, in part it has the atmosphere of a YMCA with its downtown facilities reserved for men. And I used it and enjoyed it and found it helpful. In the late spring of 1987 this year, the U. S. Open was sponsored at the Olympic Club and at that time publicity surfaced that it did not have some racial minorities as members. That was not a policy of the club as I could understand it, but it's pretty clear that the mix wasn't there if you looked at the membership rolls. And the club expressly excluded women. There was an article in the New Yorker Magazine which really triggered off my action -- a very fine sports writer wrote about the Open and talked about the egalitarian history of the club which goes back to the 1800's. Then I wrote a letter to the club which the committee has, in which I indicated that it's time to make the egalitarian spirit a reality. And I had discussions with the legal counsel for the club. I do know directors of the club who are officers, and indicated that in my view was high time that the Olympic Club changed. They did have a membership meeting, as you've indicated. In part as a result of my discussions, but in part as a result of the reaction of the City Attorney and concerns expressed by other members. And I actually had heard that the bylaw that you referred to had passed favorably. The Board of Directors were optimistic that it would, and somebody actually reported back to me that it had passed. I was not a voting member and could not vote, was not at the meeting. When I heard that the bylaw had been turned down, principally the objection was women in the athletic facility, no the racial minorities, I thought that my position had become quite untenable. And I therefore resigned before I talked to the members of the Administration, thinking that it wasn't fair to the Administration or to the members of this distinguished to make that an issue.

WOODRUFF: Republican Senator Orrin Hatch gave the judge an opportunity to express his views on aspects of criminal law. In particular the rights of the defendant as weighed against the rights of the victim. Sen. ORRIN HATCH, (R) Utah: Could you just give us the benefit of discussing with us generally how you approach the task of finding an appropriate balance between the procedural rightsof the defendant and society's right to protect innocent victims of crime? JUDGE KENNEDY: Well, Senator, I do not think that there is a choice between order and liberty. We can have both. Without ordered liberty there is no liberty at all. And one of the highest priorities of society is to protect itself against the corruption and the corrosiveness and the violence of crime. And in my view, judges must not shrink from enforcing the laws strictly and fairly in the criminal area. They should not have an identity crisis or self doubts when they have to impose a severe sentence. Now, it's true that we have a system in this country of policing the police. We have a system in this country that requires courts to reverse criminal convictions when the defendant is guilty. We have a system in this country whereby relevant, central, necessary, probative, convincing evidence is not admitted in the court because it was improperly seized. This illustrates, I suppose, that constitutional rights are not cheap. Many good things in life are not cheap, and constitutional rights is one of them. We pay a price for constitutional rights. Now, my view of interpreting these rules is that they should be pragmatic. They should be workable. We've paid a very heavy cost to educate judges and police officers throughout this country. And the criminal system works much better than people give it credit for. In every court house at whatever level, throughout the country, even if it's a misdemeanor traffic case, the judge knows the Miranda rule, he knows the exclusionary rule, and so do the police officers that bring the case before him, and we've done a magnificent job of educating the people in the criminal justice system. On the other hand, it is sometimes frustrating for the courts, as it' frustrating for all of us, to enforce a rule in a hypertechnical way when the police or the prosecutor have made a mistake in good faith, and the good faith exclusionary rule was designed -- or the good faith exception to the exclusionary rule -- is one of the court's recent pronouncements to try to meet some of these concerns -- remains to be seen how workable that exception is. Sometimes exceptions can swallow the rule. And the court has yet to stake out all of the dimensions of this exception.

WOODRUFF: The hearings had opened this morning with some Democratic Committee members urging Kennedy to answer all questions about his judicial philosophy freely, some Republicans advising him not to be badgered or bullied into answering such questions. The judge appeared to be trying all day not to fall into an extreme at either end. Robin? MacNEIL: And with us to discuss the reason for the different climates around this nomination from the Bork and Ginsburg sagas, we have Nina Totenberg, reporter for National Public Radio. She joins us from a studio on Capitol Hill. Nina, how would you describe the tone of today's hearing as compared with that of Ginsburg -- I beg your pardon, for Bork? NINA TOTENBERG, National Public Radio: Well, I think the Bork hearings really did crackle with confrontation. These hearings are sort of ambling along with amicability. We have a committee that's exhausted, a nominee that's very different in his approach, both to the law, to his role as a judge, and to the senators. And what you're seeing is senators wanting to make sure that the precedent is established that he has to answer questions about his views. On the other hand, I think probably every Senator on that committee would like to vote for this candidate. And it looks tome like there's a good possibility if there's not some misstep, he might get a unanimous recommendation from the committee. MacNEIL: Is that because they feel since this is Mr. Reagan's third choice they owe him one, or that they just don't feel there are the grounds for opposing him that there were before? Ms. TOTENBERG: I really think it's mainly the latter. I don't think Democrats ever think they owe Ronald Reagan one. And they felt, I think, very strongly that Ronald Reagan has put them in an untenable position with the Bork nomination, certainly the southerners and more conservative Democrats resented the position they were put in. So I don't think they felt they owed the President one, and certainly the Ginsburg mishap got them completely off the hook. The President really had mud on his face after that nomination. It really had been a stumble, a terrible political stumble. But the fact is that Judge Kennedy is an entirely different kind of nominee. As one senator put it to me, he's a judge. He may not be a judge that I agree with all the time, but he is a judge. He's not one of them -- meaning a Reaganite who's carrying forth the Reagan agenda. MacNEIL: Does that mean that these areas -- we've just heard some of them now -- he is being questioned about -- do not really disturb the senators who were questioning him, the right to privacy -- a right to privacy, questions like that -- and they're just going through the motions so as to make, as you said earlier, to set the record, that they do have the right to question him on his views -- are they just going through the motions? Ms. TOTENBERG: Well, I think they care, but there's a limit to how much any senator can do. The President has the right to nominate. And he has the right certainly to nominate somebody of his general philosophical view. And no senator I think believes that he can force President Reagan to nominate a liberal Supreme Court justice. And I would venture to say that Judge Kennedy is considerably more conservative even than Justice Powell, and that most of the liberal Democrats on that committee know it. The question is what kind of a judge will he be? Is he reasonably open minded? Is there a prayer for people of an opposite point of view? Will he try to undo everything that the courts have done in the last 30 or 40 years? Or will he try to work it out and move along with a more traditional conservative approach of respecting precedent? And I think the evidence to date is that he is a more traditional conservative than the two previous Reagan nominees. MacNEIL: What did you make of the advice that Judy referred to that he got at the beginning from the Conservatives to give very limited answers and from the liberal Democrats not to give limited answers? Are the conservatives worried that he might trip himself up by being too expansive? Ms. TOTENBERG: Well, I guess they are. You know, Judge Bork last week gave a speech in which he said he never should have come to the committee and testified at all, he seemed to suggest, much less answer the questions that were put to him. Now, this nominee is in quite a different position, although he has some 430 legal opinions he's written, he's written -- they're on narrow legal questions. And unlike Judge Bork, he does not have reams of paper to call him to account. He has not written and delivered hundreds of speeches and hundreds of articles in which he espouses a rather confrontational point of view. Quite to the contrary. He's always been trying to resolve questions in terms of a narrow framework of precedent. So he doesn't have a record that can be tested that way. And he can, for want of a better word, get away with far more limited answers. The Democrats have made clear, and Senator Specter has made clear, and even Senator Thurmond to some extent in the past has made clear that the nominees are now going to be obliged to give the Senators some notion of what their views are. But this nominee was cautioned by Republicans who didn't want to get into too much trouble, ''Don't go too far, don't make trouble for yourself where you don't have to. '' MacNEIL: So in other words, his performance today and over the next couple of days is still critical? Ms. TOTENBERG: Oh, yes, it's critical. MacNEIL: I mean, he could blow it here, really -- Ms. TOTENBERG: Certainly he could blow it. But he's got the points on his side. This confirmation is his to lose at this point. MacNEIL: Now, just one final question -- where if the hearings are going to be over this week -- or possible -- is that right? They'll be finished this week? Ms. TOTENBERG: That's what most seem to think -- MacNEIL: Yeah -- why is the committee going to wait until January to vote on it? And the whole Senate until February? Ms. TOTENBERG: Well, there's a great deal of criticism of Chairman Biden for even having these hearings this week. This is the most rushed we've been in any confirmation hearing since the 1980. Even when the Republicans controlled the Senate, they gave longer periods of time between nomination and the confirmation hearing. So that means there was less time to investigate the nominees, less time to read his work and analyze, and this is probably the last legislative week of this session. Senators, as you will notice as the camera pans, are missing. There are other legislative meetings, conferences on bills. There will be votes on the floor. This is a tough time to have a confirmation hearing. Senators will not be there, as they were in the Bork hearings, to hear the continual strain of answers. And so Chairman Biden in an attempt to diffuse some of the criticism, has said, ''Well, I'll keep the record open in case anything else comes up we'll be able to explore it before we vote on his nomination in January. MacNEIL: I see. Okay. I understand that. Nina, thank you very much. Running on Arms LEHRER: The third Reagan/Gorbachev summit has come and gone, but it is not forgotten. Not only in Moscow and Washington among the diplomats and the pundits, but also in Iowa and New Hampshire among the Democrats and the Republicans. The candidates were out over the weekend, expressing themselves about it.

JESSE JACKSON, Democratic Presidential Candidate: The (unintelligible) that we celebrate the starting of the INF Treaty, the first treaty to mandate destruction of a class of nuclear weapons. The INF Treaty is a small step towards sanity. A small step (unintelligible) of our nuclear arsenals, but a step in the right direction nonetheless. The INF is a small step for mankind, it's a giant step for President Reagan. Gov. MICHAEL DUKAKIS, Democratic Presidential Candidate: This is an important step. All of the Democratic candidates for the presidency are supporting the President. Only one of the six Republican candidates is supporting the President. And I think that tells you something about where the Republican Party is coming from in this country. Vice President GEORGE BUSH, GOP Presidential Candidate: I think this treaty is going to have overwhelming support from the Republicans in the United States Senate. Why? Because it's a good treaty. It's good national security policy, and it's good arms control policy, and it's got broad support amongst conservatives. People say to me, ''Why are conservatives opposed to it?'' Conservatives are not opposed to this treaty. You can find a few people on the fringe that may be. But -- and there are some that are opposed to it for very good reasons of their own. And they may be conservative, they may not. But to put a categorical statement out there that conservatives oppose this treaty, I just don't subscribe to that. Sen. ROBERT DOLE, GOP Presidential Candidate: George Bush had nothing to do with the treaty. He's out now in Iowa and other places. You'd think he discovered it. I'm not hedging or waffling, as someone said, I just have a different responsibility. I am the Republican leader, and I want to be in a position to lead the effort for President Reagan on the Senate floor. And so what we're doing is not only reading it, it's being analyzed, we have a series of meetings in the next few days, including one with the President, maybe two with the President, and then ought to be in position to indicate precisely what I'll do. But it's a little difference in the role of the Vice President, who all he does is follow what the President says, and I don't quarrel with that. But he knows, and I know, that the Republican leader has a constitutional responsibility to also check the treaty very carefully. Rep. JACK KEMP, GOP Presidential Candidate: Clearly we're in an era of great opportunity and also an era of great challenge. And as far as I'm concerned, before we beat our swords into plowshares, and our spears into pruning hooks, we should be very careful, because there's no answer yet to the Soviet behavior. LEHRER: All of this is our way of introducing the politics to the Reagan/Gorbachev summit as seen by the Gergen/Shields 1988 Politics Observation Team. David Gergen is the editor of U. S. News and World Report. Mark Shields is a political columnist for the Washington Post. Mark, the conventional wisdom is that the summit and the results of the summit are a big plus for George Bush. Do you agree? MARK SHIELDS, Washington Post: Yes, I think conventional wisdom is right in this instance. I think it's more perhaps a liability for Bob Dole than it is for anybody else in the race. But I think it has been a plus for George Bush. George Bush is seen as somebody who's been excessively loyal to the President, which has always raised questions about his independence. And this one instance where he is the lone Republican supporting the President's negotiations on the INF, his loyalty makes him look stronger. LEHRER: Do you agree, David? DAVID GERGEN, U. S. News & World Report: I agree. I think in general it's a very strong plus for Bush on two grounds: One is anytime Reagan is helped, Bush is helped. Secondly is as the campaign goes on now, I think it's going to put a lot more emphasis on foreign policy, and Bush has the strongest foreign policy credentials entering this campaign. LEHRER: All right. What about Bob Dole? As we just heard in that clip from yesterday, he's now saying he's going to talk to the President some more to look at the treaty some more. He's been accused of waffling. Is he in fact waffling? Has he been hurt by this? Mr. GERGEN: I think he's going to suffer some short term damage. I think he's moved a little late. I think his timing's perhaps -- if he'd moved last week, he'd have been better off. And that is theconventional wisdom -- but I would point out one thing which I think may work in Dole's favor. Should this come down to a two man race, Dole has carefully positioned himself just to the right of Bush now. And should it come down to the two man race, Dole is going to pick up a lot of the conservative support that Bush might otherwise want. LEHRER: So those people who are out there who have questions about the treaty, and at least they can go to a candidate who's the last to jump onboard, rather than the first one -- Mr. GERGEN: They're much more likely -- and I must say -- there's a rather strange thing happening between Bush and the conservatives. The conservatives have been attacking Bush -- Reagan -- and George Bush for reasons I don't understand is taking on the conservatives in that (unintelligible) way. He over the last couple of days called these -- the Richard Vigueries and so forth -- the ''extra chromosome set,'' which immediately drew a response, of course, from them, and -- the New York Post for instance, had a headline saying, ''George Bush calls conservatives mental cripples. '' Well, he doesn't need that kind of exchange. I mean, he needs to be ultimately the candidate who unites the party in order to win, not one who divides. LEHRER: What do you think's going on there, Mark? Mr. SHIELDS: I think Bob Dole made a very serious mistake. The premise of the Dole candidacy is this: I am a leader. He has a record to back that up. He's been an effective, wily, crafty leader. And a forceful leader in the United States Senate of all Republicans. Leadership issue emerges in this campaign. The treaty. Twelve candidates in this race, eleven of them take a position on it. One of them hasn't: Bob Dole. Bob Dole is now looking for ceremonial escape hatch. He wants to go to the White House and have the President put his arm around him and I'm sure they're negotiating that at this very moment. I mean, he needs a crash Evelyn Wood Reading Dynamics course now to read this treaty. He's gotta do it. And it just has not been -- been playing Senate politics rather than presidential politics. LEHRER: Well, but David disagrees with you. He says that this might be a helpful thing in -- Mr. SHIELDS: Let me tell you where David is wrong in this one instance. It's the first time tonight (laughter). Among Republican primary voters in New Hampshire, nobody has mistaken New Hampshire Republican primary voters for residents of Berkeley, or Harvard Square. Seventy two to twelve in favor of Ronald Reagan's treaty, with Mikhail Gorbachev. Seventy two to twelve. They're playing for 12% of the Republicans in New Hampshire -- which is a little to the right of (unintelligible) to begin with. Mr. GERGEN: Well, Mark, I think also it's true the people in New Hampshire as well as elsewhere want a man that's going to be careful. That's going to be thoughtful. This is a complicated treaty. There are people who are thoughtful people who have questions about this treaty. Mr. SHIELDS: No question. Mr. GERGEN: A man like Brent Scowcroft or Henry Kissinger have questions about the treaty. I don't think it's wise for Dole just to rush in and do it. And I also think this: Anytime you hook your fortunes to what Mikhail Gorbachev wants to do with his foreign policy, as a candidate you may have some problems. Just over the weekend, since this all happened, we've had the story out of Nicaragua about creating an armed force of 600,000 people. Well, there are a lot of people who'd say, ''Hey, look, what kind of Soviet Union arewe really dealing with if they're intending to build an army of 600,000, doubling the size of the Nicaraguan army. That makes Bob Dole look a little better. I will tell you, I think Dole has suffered short term damage, but I don't think it's necessarily damaging. LEHRER: All right. Let's move a quantum leap to the Democrats now. As Dukakis said in this little clip over the weekend, all the Democrats support this. What does this do for them for November? Doesn't this help the Republican candidate no matter who it is in November, assuming there's no huge change, as you say, David? What do you think, Mark? Mr. SHIELDS: I think it helps the Republicans. Ronald Reagan is a rather remarkable, resourceful political figure. One thinks about it in terms of what the principal problems of the Republican Party faced in a public judgment, generic problems? They were, the Republicans tilt too much to the rich. All right? Ronald Reagan embraces as his own. The Bradley/Gephardt tax reform has a loophole lobby, apoplectic and upset when he pushes through that tax reform, and rich people upset, and Ronald Reagan goes a long way toward curing of -- serving as an antidote. What's the other charge against the Republicans? That the Republican Party is too bellicose, too confrontational, gonna start World War III? Ronald Reagan just negotiates an arms reduction. The one thing the Democrats have going for them is that the Republicans were the principal obstacle to Ronald Reagan's tax reform, and the Republicans were the principal obstacle to his treaty. And I think that's the one hope the Democrats have right now coming out of this. Mr. GERGEN: It seems to me that just as Black Monday will conceivably help the Democrats, this is the other side, the equivalent of Black Monday and this helps the Republicans, because it takes the peace issue away from the Democrats. It's gonna be much, much harder. If the President gets a START Agreement as well, when he travels to Moscow -- LEHRER: That's the Strategic Nuclear Weapons -- Mr. GERGEN: The longer -- the boomers -- then it seems to me that it's going to be very, very hard, unless the economy falls apart, very hard for the Democrats to win the White House. Mr. SHIELDS: Period. Mr. GERGEN: Period. I don't care -- and I think that clearly as this goes on, George Bush is going to benefit a great deal from that. Mr. SHIELDS: There is a Democratic argument that's made by someone on the Hill. And that is that once Gorbachev and the Soviets are de demonized -- I mean, the Democrats have suffered the national elections in recent years because there was a question about their essential toughness -- if you de demonize the Soviet threat -- that is, sort of neutralize it -- then focus will shift to domestic politics, where the Democrats are considerably stronger and have been stronger -- witnessed by the fact that they hold -- Mr. GERGEN: I'm not sure, but I think an interesting argument is going to shape up in the campaign now that we hadn't thought about before. And that is the Democrats are now arguing -- Simon, Dukakis and others -- that there's going to be essentially a peace dividend. When you cut all these weapons back, we're going to have a lot of money -- Simon's already said that you can cut the defense budget by 6% over the next three years, he said that Thursday night -- and the Republicans on the other hand are arguing, ''No, no, no. We still need money for conventional forces. '' Bush has said he's going to increase the defense budget. I think there's going to be a sharp division -- LEHRER: Priorities argument -- Mr. GERGEN: Parties arguing over whether it really is going to be a peace dividend. LEHRER: David, Mark, thank you all again. Psalms for the Poor MacNEIL: If you're having a problem deciding who you'd want to be running for President, essayist Roger Rosenblatt has some suggestions about an approach.

ROGER ROSENBLATT: There seems to be two ways to prepare for the next Presidential election, which -- I don't mean to frighten you -- is less than one year from today. One way is to watch television, or whatever any of you watch, and observe the candidates as they strut their stuff in public. They announced their candidacies in front of giddy hometown rallies. They join bands of other candidates and hold friendly debates and chats in one forum or another. They stump on their own. They appear in ads. In these processes, names, faces grow familiar. Dole. Gephardt. Gore. DuPont. Dukakis. Simon. Haig. Bush. Babbit. Jackson. Kemp. Robertson. And perhaps more to come. The electorate can sit back in passive comfort and wait for one of these people to rise like a flamingo from the swamp. There he is. I like his smile. I like his talk. Great sense of humor. He's got my vote. The other way to prepare for the election -- one I suggest to you now -- is not to wait for the candidate who appeals to you, but for you to appeal to them. And to do it with an issue. Choose an issue that best represents your vision of the country. Study it. Argue it. Then see which candidate best embraces it. If you're in the market for an issue, I'd be pleased to recommend one. It is the issue of American poverty. Poverty and all the tragedies that accrue to it. Crime. Hunger. The abuse of Women and children. Drugs. Teenage pregnancy. Disease. Malnutrition. Ignorance. Danger. Hatred. Class Division. The poverty around us now. Outside your living room. Outside your block. In your city or town. In your country. The poor have us surrounded. And we have them licked. In 1986, 32. 4 million Americans living below the poverty line. Why? You might think that the Reagan Administration has cut the welfare rolls. But in fact the welfare rolls are as high as they ever were. By the time you get through even a cursory study of poverty in America, you realize that whatever any particular administration has done or has not done for American poverty, the poor are always with us. What to do? Fashionable theories claim the fate of the poor ought to be left to private charities. It will not work. No more than it ever has. And the reason is not simply to increase tax benefits. The people need a central funnel, a central engine in the government. Poverty cannot cry out in its own behalf. Poverty is voiceless, inarticulate. It is the absence of things. The absence of a sound, as well as the absence of food, clothing, a roof. Because poverty does not speak for itself. It has no political representation. Because it has no political representation, it has no power to rescue itself. In the coming election, choose someone who will make the government speak for the poor. Who knows what else may improve after that? We might be less guilty of hypocrisy abroad, because we would display less hypocrisy at home. We might show some logical integrity. We might even learn to spend our dollars sensibly. Best of all, we would have diminished greed. And greed, not communism, is the enemy of democracy. Greed is the enemy of capitalism. If we save the poor, the poor will save us. In sort, ask now what your candidates can do for you. But what you can do for your candidates. Two hundred years ago a bunch of English rationalists, known as the founding fathers, wrote about an America that was just, fair and kind. Their dream obtains today. May I suggest that you tell the current group of candidates that you want an America that is just, fair and kind to the poor? By declaring the issue, you may create the candidate. And we all may begin to realize ourselves, to remember who we are as a people, and what we're doing on earth, with all our power, all our riches. Recap LEHRER: Again, the major stories of this Monday. Soviet leader Gorbachev said disagreement over the strategic defense initiative remains an obstacle to fundamental change in U. S. /Soviet relations. And the confirmation hearings of Supreme Court nominee Anthony Kennedy began before the Senate Judiciary Committee. Good night, Robin. MacNEIL: Good night, Jim. That's the NewsHour tonight. And we will be back tomorrow night. I'm Robert MacNeil. Good night.