The NewsHour with Jim Lehrer

JIM LEHRER: Good evening. I'm Jim Lehrer. On the NewsHour tonight, the news of this Tuesday; then, extended excerpts from the questioning of Supreme Court nominee Samuel Alito, with analysis from Stuart Taylor and Jeffrey Rosen; a report on Iran's decision to resume nuclear research; and a health unit look at a new study on the rising cost of health care.

NEWS SUMMARY

JIM LEHRER: Supreme Court nominee Samuel Alito said today he would approach abortion rights cases with an open mind. It came in his first day of questioning from senators. He was also pressed for his views on presidential powers. Alito said, "No person in this country is above the law, and that includes the president and it includes the Supreme Court." We'll have extended excerpts and analysis from today's hearing right after this News Summary.

Nuclear workers in Iran removed U.N. seals from uranium enrichment equipment today and resumed nuclear research. That went against demands from the U.N. nuclear agency for a two-year freeze on all nuclear programs. Iran insists its nuclear programs are only for making civilian energy.

Today's move brought swift warnings from the U.S. and European nations. A White House spokesman said Iran risked referral to the U.N. Security Council. We'll have more on Iran later in the program.

President Bush today forecast more tough fighting and sacrifice in Iraq. In a speech to a gathering of the veterans of foreign wars, the president outlined his expectations for 2006. He urged Iraqis to put aside their differences and form a government of national unity.

PRESIDENT GEORGE W. BUSH: A country that divides into factions and dwells on old grievances cannot move forward and risks sliding back into tyranny. Compromise and consensus and power-sharing are the only path to national unity and lasting democracy.

And ultimately the success of Iraqi democracy will come when political divisions in Iraq are driven not by sectarian rivalries but by ideas and convictions and a common vision for the future.

JIM LEHRER: In Iraq today, the search went on for an American journalist kidnapped in Baghdad over the weekend. Jill Carroll is a freelance reporter for the Christian Science Monitor. Gunmen ambushed her car and killed her translator on Saturday. No group has claimed responsibility in that kidnapping.

Israeli Prime Minister Ariel Sharon showed slight signs of improvement today. He is recovering from a massive stroke suffered last week. Yesterday he started breathing on his own, as doctors began to ease him out of an induced coma.

Today in Jerusalem, one of his doctors said the prime minister had more movement on both sides of his body.

DR. SHLOMO MOR-YOSEF: Prime Minister Sharon moves his right hand and leg in a bigger amount than yesterday. Prime Minister Sharon started to move his left arm as well.

JIM LEHRER: Doctors also said Sharon remains in critical but stable condition.

A South Korean scientist faked all of his research on cloned human embryos and stem cells. An academic panel from Seoul National University made that assessment today. We have a report narrated by Julian Rush of Independent Television News.

JULIAN RUSH: Disgraced and in hiding after one of the biggest frauds for years, Professor Hwang Woo-sook's fall from grace now complete. Once tipped for a Nobel Prize his own university has now confirmed he faked two scientific papers in which he said he had cloned a human and produced stem cells that matched their adult donors; today's verdict following a month-long investigation which went right back to his lab samples and found they weren't what he said they were.

CHUNG MYUNG-HEE (Translated): This conduct cannot but be seen as an act that attempted to fool the whole scientific community and the public.

JULIAN RUSH: Ironically Hwang's fraud means this British team based in Newcastle may now claim the prize to be the first to clone humans. When they reported their work, they made a point of saying how difficult it is.

As for Hwang, himself, well, he's already resigned. Earlier revelations had shown he had coerced his female staff into donating eggs for his research. Now he faces likely prosecution for embezzlement, for taking government research funds under false pretenses.

JIM LEHRER: Investigators on the panel did uphold claims the scientist created the world's first cloned dog. That research was first published last year in the journal Nature.

On Wall Street today, the Dow Jones Industrial Average lost a fraction of a point to close at 11,011. The NASDAQ rose more than a point to close at 2320.

And that's it for the News Summary tonight. Now it's on to questions for Alito; problems for Iran; and paying for health care.

FOCUS - THE ALITO HEARINGS

JIM LEHRER: Our congressional correspondent Kwame Holman launches day two of the Alito hearings.

KWAME HOLMAN: Senate Judiciary Chairman Arlen Specter knew this first day of questioning Samuel Alito could be an exhausting one for the nominee.

SEN. ARLEN SPECTER: There are eighteen of us and only one of you.

KWAME HOLMAN: During 30-minute rounds committee members repeatedly pressed Alito to reveal his legal thinking on issues such as abortion and presidential powers and to clarify several personal matters. Chairman Arlen Specter, a supporter of abortion rights, got right to that with his first question.

SEN. ARLEN SPECTER: Starting with a woman's right to choose, judge Alito, do you accept the legal principles articulated in Griswold versus Connecticut that the liberty clause in the Constitution carries with it the right to privacy?

JUDGE SAMUEL ALITO: Senator, I do agree that the Constitution protects a right to privacy and it protects a right to privacy in a number of ways. The Fourth Amendment certainly speaks to the right of privacy. People have a right to privacy in their homes and in their papers and in their persons, and the standard for whether something is a search is whether there's an invasion of a right to privacy, a legitimate expectation of privacy.

KWAME HOLMAN: Specter then brought up the often cited letter Alito wrote in 1985 in applying for a job in the Reagan White House stating the Constitution does not protect a right to an abortion.

SEN. ARLEN SPECTER: Do you agree with that statement today, Judge Alito?

JUDGE SAMUEL ALITO: Well, that was a correct statement of what I thought in 1985 from my vantage point in 1985, and that was as a line attorney in the Department of Justice in the Reagan administration.

Today if the issue were to come before me, if I am fortunate enough to be confirmed and the issue were to come before me, then I would have to -- I would approach the question with an open mind. And I would listen to --

SEN. ARLEN SPECTER: So you would approach it with an open mind notwithstanding your 1985 statement?

JUDGE SAMUEL ALITO: Absolutely, Senator. That was a statement that I made at a prior period of time when I was performing a different role. And as I said yesterday, when someone becomes a judge, you really have to put aside the things that you did as a lawyer at prior points in your legal career and think about legal issues the way a judge thinks about legal issues.

KWAME HOLMAN: Specter noted that the 1973 Roe versus Wade decision affirming a woman's right to an abortion has been reaffirmed 38 times and asked if it fell in the category of stare decisis, the principle stating that precedent decisions are to be followed by the courts.

JUDGE SAMUEL ALITO: When a precedent is reaffirmed, each time it's reaffirmed that is a factor that should be taken into account in making the judgment about stare decisis, and when a precedent is reaffirmed on the ground that stare decisis precludes or counsels against reexamination of the merits of the precedent, then I agree that that is a precedent on precedent.

Now, I don't want to leave the impression that stare decisis is an inexorable command because the Supreme Court has said that it is not but it is a judgment that has to be based taking into account all of the factors that are relevant and that are set out in the Supreme Court's cases.

KWAME HOLMAN: Toward the end of his round of questioning, Specter asked Alito to explain his dissent in the 1991 case of Casey versus Planned Parenthood in which the Third Circuit Court of Appeals struck down a Pennsylvania law that included a provision requiring women seeking abortions to notify their spouses.

JUDGE SAMUEL ALITO: I did it because that's what I thought the law required.

KWAME HOLMAN: But Wisconsin Democrat Herb Kohl pressed Alito on Casey.

SEN. HERB KOHL: Judge Alito, in Casey you argued that the requirement that a woman notify her husband did not impose an undue burden upon a woman, your reason in part that the number of married women who would notify an abortion without notifying their husbands would be rather small. In other words only some women who would be affected.

The majority in that case disagreed with you and stated "whether the adversely affected group is but a small fraction of the universe a pregnant woman desiring an abortion seems to us irrelevant."

This disagreement begs the question: Is the constitutional right any less of a right if only one person suffers a violation or should greater value be placed on that right if a larger number of people have that right violated?

JUDGE SAMUEL ALITO: Part of the problem was that the law just was not very clear at that time. The undue burden standard had been articulated by Justice O'Connor in several of her own opinions, and there were just a few hints in those opinions about what she meant by it. But what she said was that an undue burden consisted of an absolute obstacle or an extreme burden. Those may not be exact quotes but they're pretty close.

And she did say that it was insufficient to show simply that a regulation of abortion would inhibit some women from going forward and having an abortion. Those were the -- that was the information that was available in her opinions to try to understand what this test meant.

And so then the question became: How do you apply that to the numerous provisions of the Pennsylvania statute that were before us? And it was a difficult task. The plaintiffs argued that all of the provisions constituted an undue burden. And when the case went to the Supreme Court, Justice Stevens agreed with that. He said they all were an undue burden: Things like a 24-hour waiting period, that was an undue burden because it would inhibit some women from having an abortion, an informed consent provision. Justice Stevens thought and the plaintiffs argued that would be an undue burden.

The majority on my panel and the joint opinion on the Supreme Court found that most of the provisions of the statute did not amount to an undue burden. The 24-hour waiting period, the informed consent provision, and all of them -- we disagreed on only one. And that was the provision regarding spousal notification with a safety valve provision there that no sort of notification was needed if the woman thought that providing the notification would present a threat of physical injury to her.

It was -- I wrestled with that issue but they based on the information that I had from Justice O'Connor's opinions, it seemed to me that this was not what she had in mind.

Now that turned out not to be a correct prediction about how she herself would apply the undue burden standard to that statutory provision, but that was the best I could do under the circumstances.

KWAME HOLMAN: The issue that most concerned Patrick Leahy, the top Democrat on the committee, was executive power. He raised questions about a 2002 Bush administration memo that outlined how to avoid violating international laws for interrogating prisoners by setting a high threshold for the definition of torture.

SEN. PATRICK LEAHY: What is your view of the legal contention -- that memo that the president can override the laws and immunize illegal conduct?

JUDGE SAMUEL ALITO: Well, I think the first thing that has to be said is that -- is what I said yesterday, and that is that no person in this country is above the law. And that includes the president and it includes the Supreme Court. Everybody has to follow the law. That means the Constitution of the United States and it means the laws that are enacted under the Constitution of the United States.

KWAME HOLMAN: Leahy asked Alito about a memo he himself wrote as a Justice Department lawyer in 1984 in which Alito said the attorney general should be immune from lawsuits for ordering wire taps without court permission. He wrote, "I do not question that the attorney general should have this immunity."

SEN. PATRICK LEAHY: Do you believe today that the attorney general would be absolutely immune from civil liability for authorizing warrant-less wiretaps?

JUDGE SAMUEL ALITO: No, he would not. That was settled in that case. The Supreme Court held that the attorney general does not have --

SEN. PATRICK LEAHY: But you did believe that.

JUDGE SAMUEL ALITO: Actually, I recommended that that argument not be made. It was made. And I think it's important to understand the context of that. First of all --

SEN. PATRICK LEAHY: You did say in the memo "I do not question that the attorney general should have this immunity."

JUDGE SAMUEL ALITO: That's correct. And the background of that, if I could just explain --

SEN. PATRICK LEAHY: Sure.

JUDGE SAMUEL ALITO: -- very briefly, is that, there we were not just representing the government. We were representing former Attorney General Mitchell in his capacity. He was being sued for damages. And we were in a sense we were acting as his private attorney.

KWAME HOLMAN: Staying on the subject of executive power Massachusetts Democrat Edward Kennedy returned to Alito's Reagan era writing.

SEN. EDWARD KENNEDY: In 1985 in your job application to the Justice Department, you wrote, "I believe very strongly in the supremacy of the elected branches of government." Those are your words. Am I right?

JUDGE SAMUEL ALITO: They are, and that's a very inapt phrase.

SEN. EDWARD KENNEDY: Excuse me.

JUDGE SAMUEL ALITO: It's an inapt phrase. And I certainly didn't mean that literally at the time. And I wouldn't say that today. The branches of government are equal. They have different responsibilities but they are all equal. And no branch is supreme to the other branches.

SEN. EDWARD KENNEDY: So you've changed your mind?

JUDGE SAMUEL ALITO: No, I haven't changed my mind, Senator, but the phrasing there is very misleading and incorrect.

I think what I was getting at is the fact that our Constitution gives the judiciary a particular role, and there are instances in which it can override the judgments that are made by Congress and by the executive.

KWAME HOLMAN: Kennedy pressed Alito furtherbringing up the unitary executive theory, an expansive view of presidential powers that Alito has expressed support for since the 1980s.

Kennedy cited Alito's remarks in a speech to the Federalist Society in 2000 when he said the theory best captures the meaning of the Constitution's text and structure and argued the president has not just some executive powers but the executive power-- the whole thing.

SEN. EDWARD KENNEDY: Why should we believe that you'll act as an independent check on the president when he claims the power to ignore the laws passed by Congress?

JUDGE SAMUEL ALITO: The issue of, to my mind, the concept of the unitary executive doesn't have to do with the scope of executive power. It has to do with who within the executive branch controls the exercise of executive power, and the theory is the Constitution says the executive power is conferred on the president.

Now, the power that I was addressing in that speech was the power to take care that the laws are faithfully executed -- not some inherent power but a power that is explicitly set out in the Constitution.

KWAME HOLMAN: Reacting to Democratic persistence on the presidential powers issue, Iowa Republican Chuck Grassley gave Alito several chances to clarify his position.

SEN. CHUCK GRASSLEY: So, Judge Alito, do you believe that the executive branch should have unchecked authority?

JUDGE SAMUEL ALITO: Absolutely not, Senator.

SEN. CHUCK GRASSLEY: And do you understand that where constitutionally protected rights are involved, the courts have an important role to play in making sure that the executive branch does not trample those rights?

JUDGE SAMUEL ALITO: I certainly do, Senator. Each branch has very important individual responsibilities. And they should all perform their responsibilities.

SEN. CHUCK GRASSLEY: And so clarify for me: Do you believe that the President of the United States is above the law and the Constitution?

JUDGE SAMUEL ALITO: Nobody in this country is above the law. And that includes the president.

KWAME HOLMAN: Members of both parties questioned Alito about his pledge in 1990 to recuse himself from all cases involving the Vanguard Mutual Fund Company in which he held investments but in 2002 Alito ruled in favor of Vanguard in a lawsuit.

Utah Republican Orrin Hatch.

SEN. ORRIN HATCH: The reason I want to go into this is to kind of get rid of this problem that I think is as stony as anything I've ever seen in my time around here.

Like I say, this case has been written about or reported on for weeks in bits and pieces so that getting a clear picture of the facts is indeed a challenge, let alone getting a clear picture of the ethical issues involved as well. And I know you've not had a chance to respond to any of it publicly so I want to give you that chance now.

JUDGE SAMUEL ALITO: This is a case that came up in 2002, 12 years after I took the bench, and I acknowledge that if I had to do it over again, there are things that I would have done differently.

And it's not because I violated any ethical standard but it's because when this case first came before me, I did not focus on the issue of recusal and apply my own personal standard, which is to go beyond what the code of conduct for judges requires.

KWAME HOLMAN: Democrat Kennedy also weighed in on the Vanguard issue but was more critical than his Utah colleague.

SEN. EDWARD KENNEDY: If you'd like to be refreshed about the number of times the name Vanguard appears on the brief and the number of times Vanguard appears on the opinion which I believe you offer --

JUDGE SAMUEL ALITO: Senator, the name Vanguard certainly appears on the briefs.

SEN. EDWARD KENNEDY: Your testimony here now is even though you saw the names on that, it did not come to mind at that moment that you had made the pledge and promise to this committee that you would recuse yourself?

JUDGE SAMUEL ALITO: I did not focus on the issue of recusal, I think, because 12 years had gone by and the issue of a Vanguard recusal hadn't come up.

And one of the reasons why judges tend to invest in mutual funds is because they generally don't present recusal problems and pro se cases in particular don't present recusal problems and so no light went off. That's all I can say. I didn't focus on the issue of recusal.

SEN. EDWARD KENNEDY: Well, this is important when the lights do go on and when the lights do go off.

KWAME HOLMAN: And then there was the issue of Alito's membership in a college organization called Concerned Alumni of Princeton. The group also called CAP had been criticized for opposing co-education and affirmative action. But Alito's 1985 job application touted his membership.

SEN. PATRICK LEAHY: Why in heaven's name were you proud of being part of CAP?

JUDGE SAMUEL ALITO: Well, Senator, I have wracked my memory about this issue, and I really have no specific recollection of that organization.

SEN. PATRICK LEAHY: CAP was most noted for the fact that they were worried that too many women and too many minorities were going to Princeton.

I can't believe that at 35 when you're applying for a job that you're going to be anything less than careful in putting together such a job application.

And, frankly, I don't know why that was a matter of pride for you at that time.

JUDGE SAMUEL ALITO: Well, Senator, as you said, from what I now know about the group it seemed to be dedicated to the idea of bringing back the Princeton that existed at a prior point in time.

And, as you said, somebody from my background would not have been comfortable in an institution like that. That certainly was not any part of my thinking in whatever I did in relation to this group.

KWAME HOLMAN: Sen. Hatch offered Alito an opportunity to explain further his association with the Princeton group.

SEN. ORRIN HATCH: So is it fair to say that you were not a founding member?

JUDGE SAMUEL ALITO: I certainly was not a founding member.

SEN. ORRIN HATCH: You were not a board member.

JUDGE SAMUEL ALITO: I was not a board member.

SEN. ORRIN HATCH: Or for that matter you were not even an active member of the organization to the best of your recollection?

JUDGE SAMUEL ALITO: I don't believe I did anything that was active in relation to this organization.

SEN. ORRIN HATCH: So let me just ask you directly: On the record, are you against women and minorities attending colleges?

JUDGE SAMUEL ALITO: Absolutely not, Senator, no.

SEN. ORRIN HATCH: I felt that that would be your answer. I really did.

KWAME HOLMAN: Some questions by senators this afternoon explored some newly tested areas of the law. Ohio Republican Mike DeWine.

SEN. MIKE DeWINE: Judge Alito, let me ask you about Congress's power to protect children from the proliferation of pornography on the Internet. This is an important issue. I raised it at the last hearing. It's one that I think is very troubling.

Congress has tried several times to protect our children from being exposed to pornography on the Internet.

In 1996, we passed the Communications Decency Act but the Supreme Court struck it down citing the First Amendment. A few years later we passed the Child On-Line Protection Act. Again the court struck it down.

What bothers me about these cases is they fail to account for something that to me seems relatively simple.

Let me ask you, Judge, what is your thinking on this subject. Is pornography lesser value speech as Justice Stevens has seemed to suggest and are there or should there be different levels of speech under the First Amendment?

JUDGE SAMUEL ALITO: I think that the problem of protecting children from pornography on the Internet illustrates the fact that although the task of the judiciary is to apply principles that are in the Constitution and not make up its own principles, to apply those to different factual situations when the world changes and in particular when, in the First Amendment context, when means of communication changes.

The job of applying the principles that have been worked out-- and I think in this area worked out with a great deal of effort over a period of time in the pre-Internet world-- applying those to the world of the Internet is a really difficult problem.

And I understand that Congress has been struggling with it, and I know the judiciary has been struggling with it. I can't say much more about the question than that. It is a difficult question. I think that there needs to be additional effort in this area, probably by all branches of government so that the law fully takes into account the differences regarding communication over the Internet and access to materials over the Internet by minors.

KWAME HOLMAN: And Judge Alito could give only general answers to a series of questions posed by Wisconsin Democrat Russ Feingold concerning the president's actions in the war against terror.

SEN. RUSS FEINGOLD: Does the president in your opinion have the authority acting as commander in chief to authorize warrant-less searches of Americans' homes and wiretaps of their conversations in violation of the criminal and foreign intelligence surveillance statutes of this country?

JUDGE SAMUEL ALITO: That's the issue that's been framed by the developments that have been in the news over the past few weeks. And, as I understand the situation, it can involve statutory questions, the interpretation of FISA, and the provision of FISA that says that no wiretapping may be done except as authorized by FISA or otherwise as authorized by law and the meaning of the authorization for the use of military force and then constitutional questions.

And those would be -- those are issues, as I said this morning, that may well result in litigation. They could come before me on the court of appeals for the Third Circuit. They certainly could come before the Supreme Court. And before -- those are weighty issues involving two of the most important considerations that can arise in constitutional law: The protection of the country and the protection of people's fundamental rights. And I would have to know the specifics and the arguments that were made.

SEN. RUSS FEINGOLD: As I understand it, you've prepared for these hearings over the past few months with a variety of practice sessions; some have called them moot courts or murder boards.

Was the question of the president's power in time of war to take action contrary to a federal statute ever raised in any way during any of the practice sessions for these hearings?

JUDGE SAMUEL ALITO: I have had practice sessions on a great variety of subjects, and I don't know whether that specific issue was brought up. It may have been.

SEN. RUSS FEINGOLD: Who was present at these practice sessions where these questions were discussed and who gave you feedback or suggestions or made any comment whatsoever on the answers you gave?

JUDGE SAMUEL ALITO: Nobody at these sessions or at any of the sessions that I had has ever told me what to say in response to any question.

SEN. RUSS FEINGOLD: I just asked --

JUDGE SAMUEL ALITO: Those are --

SEN. RUSS FEINGOLD: Were there no comments?

JUDGE SAMUEL ALITO: The comments that I've received -

SEN. RUSS FEINGOLD: No advice?

SEN. ORRIN HATCH: Let him answer the question, Sen. Feingold.

JUDGE SAMUEL ALITO: The advice that I have received has gone generally to familiarizing me with the format of this hearing, which is very different from the format of legal proceedings in which I have participated either as a judge or previously when I was arguing a legal issue as a lawyer, but nobody has told me what to say. Everything that I've said is an expression of my own ideas.

KWAME HOLMAN: Despite a full day of questioning Judge Alito, senators were just getting started. They'll return tomorrow morning for Round 2.

JIM LEHRER: And to Ray Suarez.

RAY SUAREZ: We are now joined by two court watchers who have been following these hearings closely: Jeffrey Rosen, professor of law at George Washington University and legal affairs editor at the New Republic, and Stuart Taylor, a columnist with National Journal and a fellow at the Brookings Institution.

And Stuart, Judge Alito was in the hot seat for upwards of seven hours. They covered a great many subjects during this first day of questioning. Looking at the arc of the day, how did he do?

STUART TAYLOR: Given the rather arcane rules of this game-- and it is sort of a game-- I thought he had a pretty strong day after a little bit of a weak opening statement yesterday beginning with the joke that fell flat.

But today he managed to duck the questions he needed to duck. He gave very reassuring answers to the questions that people were worried about. You know: yes, I respect precedent. I would have an open mind about Roe versus Wade; I believe in the right to privacy; I believe in the right to contraception, Griswold versus Connecticut. The president is not above the law. I agree with Justice O'Connor when she said a state of war is not a blank check for the executive when it comes to the rights of the nation's citizens. The one person/one vote principle is a fundamental part of American law.

So these are all areas where he previously said things that shook some people up, and he to some extent took the sting out of a lot of those. And with the help of Republican senators, he gave some counter examples to the claims that have been made that he very rarely rules in favor of a civil rights plaintiff or a race discrimination complaint.

This isn't to say that he has no problems, but going in the idea was that he would be confirmed unless he stumbled. I didn't see him stumble.

RAY SUAREZ: Professor Rosen.

JEFFRY ROSEN: I think I'm a little less impressed than Stewart was. I don't think whether it was artful judiciousness or strategic evasiveness, but he managed on the central issues that are especially of concern to his skeptics not to give a much clearer sense at the end of this day than we had when we began it.

On the question of abortion he pointedly ducked the question of Sen. Schumer -- Do you believe as an original matter that the Constitution protects a right to abortion -- taking refuge in generalities about the importance of precedent.

And on a series of very pointed and interesting questions about executive power culminating in that discussion from Sen. Feingold that we heard, he refused to say whether or not the president's domestic spying program violated the FISA statute or was authorized by the Constitution but just said he would have to engage in these questions when they came before him.

So if the standard is did he duck the questions that he had to duck, sure, and I guess that was strategic in his favor but for Democrats who are considering whether or not to oppose him strongly I didn't see an awful lot today that would have reassured them.

RAY SUAREZ: Stuart.

STUART TAYLOR: I don't question that he ducked a lot of questions. He did. You watch it and you think why doesn't he answer the question? Sen. Schumer is asking him do you still believe the Constitution -- and that's why I refer to the rules of this peculiar game.

Jeff and I disagree, that I don't think we learned anything in three days of testimony from John Roberts, anything at all about how he would rule on any of these pending issues.

And frankly, when we've got a hot national debate right now about whether the president has acted illegally, even criminally in this warrant-less surveillance program, no nominee for any judicial office is ever going to come close to answering it nor should they. It would be pre-judging the case.

RAY SUAREZ: Well, let's take a look since you both mentioned abortion and the day ended with some tough questions from Sen. Schumer of New York. He said, for instance, that he does find a right to privacy in the Constitution, which takes him further than earlier some earlier nominees, notably Robert Bork who he said he admires.

He supported the conclusion in Griswold versus Connecticut, which is a landmark decision on contraception, and Eisenstadt, which extended the Griswold protections to single people, not just married couples. Should this reassure those people who had worried about his abortion stances earlier?

JEFFRY ROSEN: I don't think so. It's now clear that you can't get confirmed to the Supreme Court unless you recognize the legitimacy of the Griswold and Eisenstadt cases. John Roberts did that and Judge Alito pointedly distanced himself from Robert Bork in this respect who had questioned those cases, but he declined to say whether or not he thought that Roe was a super precedent or a super duper precedent.

He made an okay joke about that sounding like some detergent that you'd see on the rack at the grocery store. But in that sense he seemed less reassuring about the scope of stability and continuity than John Roberts was.

And even Clarence Thomas, when you think back to his hearings, was almost expansive about the importance of precedent, saying nothing could be more important. He wouldn't overturn it under any circumstances so on Roe, he really kept his options entirely open and refused to tip his hand in any way. I would not be reassured if I were a Democrat.

RAY SUAREZ: Stuart, options entirely open even after Sen. Specter, who is a pro-choice Republican, made such a point of noting the 38 decisions that upheld Roe since its first decision?

STUART TAYLOR: I agree with Jeff on that. I think he kept his options entirely open. And John Roberts, the chief justice now, kept his options entirely open. And any judge, anybody up for confirmation to the Supreme Court will keep his options open unless he can't get enough votes to get confirmed that way.

There's a pretty good argument that you shouldn't be saying, yes, senator, I promise I'll vote to reaffirm Roe versus Wade even though that's going to outrage all the Republicans or, yes, senator, I promise that I will overrule it or I won't overrule it.

So I think, no, the game at this stage is a ritual. Jeff is right. You have to pledge allegiance to the right to privacy, the right to contraception, Griswold versus Connecticut, to get confirmed. And probably if you say I think Roe versus Wade should be overruled, I'll have an open mind if I get there, but as I sit here today, I think it should be overruled, you probably can't get confirmed either.

RAY SUAREZ: Let me turn the question around a little bit. Yesterday during their opening presentations Senators Brownback of Kansas, Coburn of Oklahoma, Graham of South Carolina, all spent a lot of their time in their opening statements talking about abortion.

And today hearing the nominee uphold the right to privacy, uphold Griswold, uphold Eisenstadt, and speak in favor of starri decisis, respecting precedent, might they have something to worry about?

STUART TAYLOR: I think everybody who is worried about, you know, how Roe versus Wade is going to turn out has something to worry about because we have two new members of the court who quite properly in my view have avoided -- well, Alito is not on there yet but if he gets there, have avoided saying yes I promise to overrule it; no, I promise not to overrule it. I don't think they should say that.

I frankly don't think they will overrule it. But that's not because of any particular thing either of them have said. That's because of my possibly incorrect gauging of their temperaments.

Neither one of these guys, it strikes me, is a bomb thrower, is somebody who wants to suddenly throw a lot of turmoil into the system and overruling Roe versus Wade would certainly do that.

RAY SUAREZ: Professor Rosen, today we heard about some arcane terms like presidential signing statements which really don't make the news very often. But it's a document generated when a president signs a bill that's passed by Congress. What is it and why is it important?

This was part of a really fascinating debate about the scope of presidential power. And we know when President Bush signed the recent congressional ban on torture, he included a signing statement saying that it might not bind the executive branch in important ways.

Judge Alito, when he was an advocate, had supported the use of presidential signing statements to preserve presidential authority. And there was a long debate about his support for an important theory called the unitary executive that as Sen. Kennedy said Judge Alito had supported quite recently. This is the centerpiece of the recent debate about the scope of presidential power, and the most dramatic advocates of this theory argue that the president should have the power even to refuse to obey laws that he believes are unconstitutional like the law restricting wiretaps.

Judge Alito was asked: Do you support the use of signing statements under these circumstances? He said that's a theoretical question that the court hasn't decided. I'll have to come back to that.

Do you support the unitary executive theory in its broadest form? He drew an interesting distinction between the president's control over his appointees and his ability to fire people and the scope of his authority. And he said, no, here I'm just talking about the ability to fire cabinet appointees. I'm not saying that the president should be able to break laws with which he disagrees.

So by bobbing and weaving on that central question, he really didn't tell us, although he was asked to repeatedly whether he thought that that FISA law, for example, could be broken in light of Congress's authorization of the use of force after 9/11.

He refused to say whether that put the president in the zone of twilight when he was acting against expressed congressional intentions. He just said I have to consider all those arguments when they came before me. And in this sense although lots of senators really tried to give him a run for his money here we didn't have a strong sense at the end of the day exactly where he sat on these questions.

RAY SUAREZ: Stuart, did Judge Alito de-claw those questions about the limit of executive power?

STUART TAYLOR: I don't think he de -- well, I think he got by which is all he needed to do. Now, I get the impression from Jeff that he thinks Judge Alito ought to be saying, well, here's how I would rule on this case. Oh, the president against Congress on wiretapping? No, I'd rule against the president on that. And on Roe versus Wade, oh, I'd overrule that one. Is that really what you want him to do?

JEFFRY ROSEN: Of course not. No, no. There's no question that he shouldn't tell how he's going to rule on cases coming before the court in the future. But when you're asked very specific questions both about his views about constitutional questions like Roe independently of the starri decisis question -- or even there was a nice exchange where he was asked tell us about Bush versus Gore. The election of 2000 at this point is settled. It's not going to come up again. Was that right as an original matter? He said election disputes might come before me.

Now do I admire him for bobbing and weaving? I do. And I'm especially impressed that he didn't resort to the mantra that lots of past nominees have used: I can't answer that; that will come before me. Judge Ginsburg did that. Chief Justice Roberts did that. There's a certain elegance about the fact that he appeared to be forthcoming without actually being forthcoming.

I'm just saying for my own sake as someone who hasn't made up his mind on the nomination, I don't feel like I know a whole lot more about his substantive views about abortion or executive power than I did before the hearing began.

RAY SUAREZ: Stuart, what about some of the issues talked about the anti-Alito activists in the run-up to these hearings, things like his recusal over the Vanguard Mutual Fund ownership when the case came before him, the findings for corporate respondents in hiring bias cases and his membership in this Princeton alumni group?

STUART TAYLOR: Well, those all got some attention today. On the Vanguard thing, his strength is that I don't think there are many serious legal ethicists who think seriously that there was a problem, that he had a conflict of interest sitting on vanguard cases because he owned some Vanguard Mutual Fund shares but he said he would recuse himself, for how long was kind of ambiguous, and the explanation of why he failed to recuse himself in one case and then changed and then it had to be brought to his attention.

The explanations have been unsatisfying so I think he's made his own problem to some extent there and added fuel to the fire but the American Bar Association Committee, which is no bevy of administration supporters, it's a pretty broad group, gave him a very strong thumbs up on integrity after examining the Vanguard matter very closely.

Concerned Alumni for Princeton, this is a group that he proudly said I'm a member when -- a conservative group, when he was applying in 1985 for a political appointment in the Meese Justice Department and now he says I have no recollection of that apart from that document. That probably isthe hardest thing to believe of all the things that he said.

And the Democrats are making hay out of it because Concerned Alumni for Princeton or some of its members said some pretty far-out things about -- we've got too many women here; we've got too many black people here -- that frankly I think it's hard to believe that Alito agreed with those statements but being associated with an organization where people were making them gets him into problematic territory. I don't think it's going to be a huge problem for him but it's kind of a blot.

RAY SUAREZ: Gentlemen, thanks a lot.

JIM LEHRER: Still to come on the NewsHour tonight, Iran's nuclear moves, and the cost of health care.

UPDATE - NUCLEAR MOVES

JIM LEHRER: The Iran story: We have a report narrated by Jonathan Miller of Independent Television News.

JONATHAN MILLER: Deep in these tunnels where for nearly two decades Iran hid its nuclear program, its scientists today resumed the research to uranium enrichment.

MOHAMMED SAEEDI, Iranian Atomic Energy Organization (Translated): Our research work is not limited to one place. We will carry out the research in all the centers that we have already announced to the International Atomic Energy Agency.

JONATHAN MILLER: His delivery's relaxed enough but this is a big political risk, calculated to raise the stakes, guaranteed to rile a world mistrustful of Tehran's atomic intentions.

The lurking suspicion that the country's whose president wants to wipe Israel from the map also wants an atomic bomb.

SCOTT McCLELLAN: There is serious concern throughout the international community about the regime's behavior, and given Iran's history of concealing and hiding their nuclear activities from the international community and its continued noncompliance of its safeguard obligations such concern is well founded.

SPOKESMAN: I think the speculation --

JONATHAN MILLER: In the House of Commons today, the foreign secretary said he hoped they'd pull back. Just last week the Guardian newspaper cited a leak to European intelligence document which concluded that Iran had been shopping in Europe for nuclear bomb-making equipment and ballistic missile components.

JACK STRAW: This creates a serious situation for the international community. President Chirac has said this is a serious error by Iran. It's one that we internationally have to consider.

JONATHAN MILLER: Now that enrichment research has resumed here in Natanz, 200 kilometers south of Tehran, the foreign ministers of Britain, France and Germany, the EU-3 along with the EU's foreign policy chief who have long sought to negotiate a nuclear climb down will meet on Thursday to work out just how to stop Tehran in its tracks. Washington's preferred option: To refer Iran to the U.N. Security Council.

Now even Russia, a key ally of Tehran, urging Iran to keep its promises. Iran has a record of tempering conciliatory gestures with provocative moves.

Three-and-a-half years ago an exiled Iranian opposition group revealed the existence of the secret underground enrichment plant in Natanz. Within four months Washington was accusing Tehran of across- the-board pursuit of weapons of mass destruction.

Next, the U.N. entered the phrase accusing Tehran of breaching the nuclear non-proliferation treaty. Iran promised the EU-3 it would suspend enrichment and then a year later, it promised to suspend the processing of raw uranium, too.

But last September the U.N.'s atomic energy agency announced Iran had resumed the first stage of nuclear processing, breaking the seal at the Isfahan plant. Today research on Stage 2 resumed: Uranium enrichment.

FOCUS - COSTLY CARE

JIM LEHRER: Finally tonight, Margaret Warner has our update on the ever-rising price tag for health care in America.

MARGARET WARNER: A new report out yesterday confirmed what companies and consumers already know: That health care costs are soaring. In fact, said the Federal Centers for Medicare and Medicaid Services, overall health spending in the U.S. doubled between 1993 and 2004.

And in 2004, total health care spending amounted to $1.9 trillion. That represented 16 percent of the nation's GDP, the largest share on record. A one-year snapshot offers this picture: The rate of growth in 2004 alone was nearly 8 percent-- more than double the national inflation rate, and far exceeding overall economic growth.

Yet there was some encouraging news, too. The growth in 2004 wasn't as great as in the three previous years. For more on what's behind the numbers, and what they portend for the years ahead, I'm joined by NewsHour correspondent Susan Dentzer of our health unit. The unit is a partnership with the Robert Wood Johnson Foundation.

Susan, hello.

SUSAN DENTZER: Hi, Margaret.

MARGARET WARNER: Explain this to us. There were a couple of headlines. They were really all over the map. One today said health care grows faster than the economy. Another one said the growth of national health spending slows. Now was this a good news story or a bad news story?

SUSAN DENTZER: Margaret, it was a little bit of both. The good news is that as we just said health spending increases slowed in 2004 over the previous few years. And that's largely because in the early years of this decade, you may recall, managed care, HMO's and so forth, that whole system was kind of falling apart. And, as a consequence, health spending took off for several years. You saw this particularly in things like prescription drug spending where in 2000 it soared by 16 percent in one year alone.

That's been offset by a slowdown now in 2004, and the good news is we saw that in prescription drugs once again, that prescription drug spending rose only 8 percent in 2004 -- only 8 percent in 2004, which is up again about half the pace of several years earlier.

But we need to look at this against the larger back drop, which is that a health spending rate increase of 8 percent still is a recipe for health spending doubling again by 2013. So nobody is breaking out the champagne. And we still have very serious problems on our hands.

MARGARET WARNER: So what is driving -- I mean, if you look at the charts just inexorably every year even if the different categories may change, drugs, versus doctors versus hospitals just up, up, up as a percentage of GDP, what is driving that?

SUSAN DENTZER: There are three major drivers of ongoing health care cost increases: One is new technologies, new drugs, new devices. A cancer drug like Urbatux extends life for colon cancer patients but at least a few months but it costs $100,000 a year -- enormous prices for these.

In addition to that, overall prices in the economy generally continue to go up, and they do in health care, hospital prices in 2004 rose 5 percent. Why? Well, in part because hospitals are having to pay more to hire nurses. That's one factor but they're also raising prices because they can. So prices are just going up.

And then finally we have the issue of ongoing increases in utilization. We know much more to do for people who are sick, and there are a lot of sick people, a lot of people who are chronically ill.

If we look at a child born today has a 50 percent chance of having diabetes over the course of his or her lifetime. That also is a recipe for ongoing, sustained increases in health care spending.

MARGARET WARNER: Now, you talked a little bit about this in your first answer but in terms of why at least the rate wasn't quite as fast, and you said it was because of lowered drug costs. Explain a little more why are people at least not spending 12 percent more a year for drugs?

SUSAN DENTZER: Well, paradoxically, even as managed care overall fell apart, the management of drug spending did get better. And it has gotten better over the last several years. And one sign of this is that many people are being either pushed or encouraged to convert from, say, brand name medications to generic drugs which are priced less.

You take an example of a drug like Prilosec, which is a drug for gastric reflux disease, a serious form of heartburn. An average month's supply of the brand name medication Prilosec is about $138. The generic version of that costs about $40.

If you get the over-the-counter version of that which is now available, it's $24. So you could save $1400 a year by switching from the brand name medication to the over-the-counter drug.

Now, that's the good news and that contains overall spending. The bad news for consumers is if you're buying the drug over the counter, you're paying that cost out of pocket. Your insurance company is not paying anything toward that.

And that's why paradoxically we also saw in 2004 out-of-pocket spending by consumers for prescription drugs rising even as the rate of increase overall was lower.

MARGARET WARNER: So, in other words, both employers and employees are paying these higher costs?

SUSAN DENTZER: Yes.

MARGARET WARNER: Now, this total amount for 2004 of $1.9 trillion represents over $6,000 for every man, woman and child in America. And there were a couple of other reports yesterday that spoke to the quality and equity of the care that we're getting for that $6,000. What's the headline there?

SUSAN DENTZER: Well, the headline is, I think as it has been for several years is that we're pretty comfortable that for all we're spending and keep in mind it's 50 percent more per capita than the next biggest spender -- which is Switzerland -- are we getting value for our money? And the answer unequivocally is, no, we're not.

One of the studies that was out yesterday is the National Health Quality Report, which looks at a number of indicators of quality in health care. Of 44 core indicators that it looked at, it said about half of them had gotten better since the previous report the prior year but half had gotten worse or stayed the same, no improvement.

And if you look at what underlies some of those indicators, take, for example, people with high blood pressure. One indicator is: Are those people getting the treatment for high blood pressure that they need to get?

The wonderful statistic is that 29 percent of them are. Now nationally we would like to -- we have had as a goal for several years to get to 90 percent. At the rate we're going we'll get there in about 20 years so quality falls far short of what we would expect to be getting or hope to be getting for the dollars expended on health care.

MARGARET WARNER: So back to the big picture and the spending picture, what do the experts you talk to think all this portends for the future? I mean, do they see any kind of diminishment of this at least rate or growth or in fact is it going to be worse because of the huge baby boomer population?

SUSAN DENTZER: Well, they think that there will continue to be efforts to make headway obviously on quality and certainly on cost containment. And it tends to go in cycles.

We attacked prescription drugs very vehemently over the last several years because we got the huge increases several years ago. We'll probably see a cycle where we go back at hospital spending, but overall I think people look at the big picture and say it's clear we're in a serious national cost health spending crisis.

There isn't a corporate leader who doesn't believe that or a serious health economist who doesn't believe that. Rising costs are a driver of several things. They're a driver of declining affordability of health insurance coverage. They are a driver of declining employer-based coverage.

The Kaiser Family Foundation Survey shows that 69 percent of employers were offering coverage in 2000. That number is now down to 60 percent. And in addition to that, public health insurance programs are growing. 8 million people on Medicaid alone over the last -- since 2000.

MARGARET WARNER: New ones.

SUSAN DENTZER: New ones. If this were not happening, the overall rate of health un-insurance would be worse. We're now at 46 million uninsured. We know that but for the growth of public programs that number would be higher as well.

So everybody steps back and looks at that and says we have a problem. We don't have anything on the horizon that looks like it's going to solve it or attack it in a concerted way. And where it will all end, who knows?

MARGARET WARNER: Thanks, Susan.

SUSAN DENTZER: Thanks, Margaret.

RECAP

JIM LEHRER: Again, the other major developments of the day: Supreme Court nominee Samuel Alito said he would approach abortion rights with an open mind. Iran removed U.N. seals from uranium enrichment equipment and resumed nuclear research. And an investigative panel in South Korea said a scientist faked all of his research on cloned human embryos and stem cells.

JIM LEHRER: And again, to our honor roll of American service personnel killed in Iraq and Afghanistan. We add them as their deaths are made official and photographs become available. Here, in silence, are seven more.

JIM LEHRER: We'll see you online, then tomorrow at 9:30 A.M. Eastern Time with our Alito hearing coverage, and again here tomorrow evening. I'm Jim Lehrer. Thank you, and good night.