The MacNeil/Lehrer NewsHour

MR. LEHRER: Good evening. I'm Jim Lehrer in Washington.

MR. MAC NEIL: And I'm Robert MacNeil in New York. After our summary of the day's top stories, we look at the new situation in Rwanda where a tidal wave of frightened people are fleeing the victorious rebel army, then two legal experts analyze the impression Supreme Court nominee Stephen Breyer has made in three days of hearings. Finally, we have a report from Seattle on the likely impact on the airline industry of Boeing's new 777 airliner. NEWS SUMMARY

MR. LEHRER: Another mass exodus from Rwanda is underway. They are Hutus fleeing from the Tutsi rebels who have taken over most of the country. A relief official said as many 900,000 people will have entered neighboring Zaire by this weekend. The country's prime minister designate returned home today from exile in Uganda. Though a moderate Hutu, he will attempt to lead the new Tutsi-dominated government. We'll have more on Rwanda right after this News Summary. Robin.

MR. MAC NEIL: White House Spokesperson Dee Dee Myers said today President Clinton has made no decision yet on using military force to restore democracy in Haiti. But she said the President has made it clear he has not taken the use of force off the table. The Senate today rejected a proposal by Republican Leader Bob Dole which would have forestalled any military action. It called for the creation of a bipartisan congressional fact finding commission to study the situation in Haiti for a period of 45 days. The vote was 57 to 42 against the measure. Here's a sample of the debate.

SEN. ROBERT DOLE, Minority Leader: Before we get engaged in nation building in Haiti we ought to listen to Haiti's democratic parliamentarians. We ought to look at Aristide's leadership and power and in exile. And we ought to look at why reconciliation has not worked in Haiti. That's exactly what a commission would do. If you oppose this commission, you're saying no to the facts and yes to writing a blank check for military invasion and nation building in Haiti.

SEN. BOB GRAHAM, [D] Florida: I consider this resolution to be a statement of indecision. We're traumatized by all of the unpleasant forces that are before us. We are traumatized by what we see daily of the events from Haiti. We're traumatized by the thousands of people who are fleeing Haiti. And, thus, our answer is let's don't decide. Let's set up an ambiguous commission with an indeterminate reporting date, with a very vague charter, and let's let that substitute for making tough choices.

MR. MAC NEIL: Haiti's exiled president today demanded swift and definitive action from the world community to help get rid of the country's military leadership. But Jean Bertrand Aristide said he was constitutionally prohibited from calling for military action himself.

MR. LEHRER: The confirmation hearings for Judge Stephen Breyer continued today before the Senate Judiciary Committee. There were more questions about financial investments and possible conflicts of interest but nothing that was expected to derail his confirmation to the U.S. Supreme Court. Witnesses for and against Breyer are scheduled to testify tomorrow. We'll have more on the hearings later in the program.

MR. MAC NEIL: In economic news the Labor Department said sales at retail stores rose .6 of 1 percent in June. The gain followed two months of declines. Macy's and Federated Department Stores today announced a merger which could create the country's largest department store chain. The company would include some stores as Bloomingdales, Bullock's, and Rich's. Macy's is currently in Chapter 11 bankruptcy. The deal must be approved by the bankruptcy court as well as federal and state anti-trust officials.

MR. LEHRER: The Flint River crested today in Bainbridge, Georgia, thirteen feet above flood stage but seven feet lower than predicted. National Weather Service forecasters said a network of ponds, bogs, and marshes absorbed some of the runoff. The Bainbridge city manager said over 300 houses have been flooded. He said it could be a week before residents are allowed to return. Twenty-nine people have died in over a week of floods in Southwest Georgia. Flooding has also extended to Western Alabama and to the Florida Panhandle.

MR. MAC NEIL: Today was Bastille Day, the French holiday to commemorate the start of the French Revolution. And this Bastille Day, German troops were seen marching in the streets of Paris. Fifty years ago this summer, France was liberated from Nazi, Germany's occupation. Today's appearance by the Germans came at the invitation of French President Mitterrand. Louise Bates of Worldwide Television News narrates this report.

MS. BATES: For President Mitterrand, a champion of greater European unity, the chance to make a gesture as grand as the Arc De Triomphe. Mitterrand invited 200 German soldiers to attend the celebrations in the Champs Elysees. They'll form part of a new European defense corps. The invitation appeared to compensate for shutting Germans out of last month's 50th anniversary celebrations of the D-Day invasion. But it also reopened the wounds of a Nazi occupation. German troops once paraded through the heart of Paris to demonstrate the Third Reich's power. It was the first time they'd returned, and not everybody was as happy as Mitterrand.

WOMAN: I am from a certain age where I've seen the other Germans walking down the Champs Elysees.

MS. BATES: The German chancellor hailed the multinational defense forces, proof that a new Europe is being born. But the marks of history will be difficult to erase.

MR. LEHRER: And that's it for the News Summary tonight. Now it's on to the Rwanda tragedy, the Breyer hearings, and the new Boeing airliner. FOCUS - EXODUS - R

MR. MAC NEIL: We start tonight with Rwanda and what some of the national agencies are saying is the single largest mass movement of refugees in history. By the thousands a minute, Rwandans are crossing the border into Zaire. As many as 900,000 may make the crossing by the weekend. Most are of the Hutu tribe. The refugee exodus follows the apparent military victory of the Rwandese Patriotic Front composed mainly of members of the Tutsi tribe. As many as 1/2 million Rwandans have died in three months of civil strife that followed the death in a plane crash of the presidents of Rwanda and Burundi. The Patriotic Front has captured the capital of Kigali, and its control now extends through most of the country except for a safe haven protected by 2,000 French soldiers. We start with a report from the area under French control. The correspondent is Catherine Bond of Insight News of Britain.

CATHERINE BOND, ITN: This is Chanica, near Gikongoro. It provides a glimpse of the tidal wave of humanity that swept Rwanda ahead of the front line. From here northwards, strung along a series of hills, the authorities have, in effect, ordered half a million to a million people, mostly Hutu, to stop fleeing West towards Zaire. They form a human buffer zone, a wall of civilians hostile to the RPF. Homeless and hungry, the twin risks of famine and disease are great. Aid agencies say this humanitarian crisis is rapidly worsening. People in Southern Rwanda may need a million tons of food aid in the coming year. Right now, little has arrived. These orphans are eating stems of millet. This crisis could be solved by an act of political mercy, but it's not clear if the Patriotic Front will allow these people to cross back through to the front line and reoccupy their homes. The safe haven for criminals is guarded by a radio station; some of these men and women are likely to have participated in the massacres of Tutsi and of Hutu moderates. Foreign aid workers find themselves in an ethical dilemma, justifying donor assistance to suspected murderers.

JAMES FENNEL, Coordinator, CARE: I think the role of aid agencies is always to respond to people who are in most need, and that's a humanitarian need. That's not a judgment about their involvement in, for example, in the killings which have gone on, the massacres, the genocide here. At the same time, we do have a role to bear witness to those types of events. Ability to be in places where people are in distress means that we have a responsibility I think to, to governments in the West and to the people in the West to tell them what's really happening here.

MS. BATES: The quiet road to the border with Zaire. In colonial times it was Belgium, not France, that ruled Rwanda under a mandate from the United Nations. This corner of the Southwest is the only part of the country to have been spared the war so far. At the moment, the RPF does not have enough manpower to conquer it. In the countryside, villagers say the RPF has new support. The army the French supported as recently as a few months ago training on a football pitch lent to them by the Anglican Church. Hutu troops, in this case relatively well fed and well educated, most of them are university students and secondary school leavers. The general who commands these troops says that they're recruits who've joined the government only two weeks ago. It's a sign that the government at least continues to fight the war rather than negotiate with the rebels. Laborers work tea plantations. Rwanda's, economy dependent on exports of tea and coffee, has been hit hard by the crisis of the past three months. This is a state-owned tea factory, but key buyers in Britain, Pakistan, and Kenya can't get in touch. The accountant, probably a Hutu, is at work, but most of the offices next door to his are unstaffed. A relatively high percentage of Tutsi were skilled workers. Many Tutsi have lived in exile for the past 30 years but of the estimated 750,000 who lived inside Rwanda before the massacres began in April, only 100,000 are believed to have survived.

MR. MAC NEIL: We get four views now on the Rwanda situation. Gerald Gahima is the special envoy to the United States and United Nations of the Rwandese Patriotic Front. We invited the government but it declined. Stephane Marchand is Washington Bureau chief of the French newspaper "Le Figaro." He has previously been a journalist in Africa. Roger Winter is the director of the U.S. Committee for Refugees, a refugee policy organization in Washington, he's been in Rwanda three times in the past eleven weeks. Julia Taft is president of Interaction, a coalition of organizations during relief work. She is a former relief and refugee official with the State Department. She visited relief camps in Tanzania two weeks ago. Ms. Taft, some are saying this latest exodus may be the largest in history. Who are they and why are they fleeing into Zaire?

MS. TAFT: These are the Hutus that are fleeing from the area that the RPF is making, is coming toward. The Hutus also on the side, the other side of the country, were fleeing into Tanzania. So we have two of the largest movements of refugees ever in, in recent history coming out of Rwanda, one into Zaire, and the same group of Hutus going into Tanzania. I think it demonstrates the real regional de-stabilization and the regional nature of this, of this conflict and the human impact it has far beyond just the borders of Rwanda.

MR. MAC NEIL: Do they have good reason to fear for their lives, these Hutus, in front of the advancing rebel forces?

MS. TAFT: Everyone makes their own decision as to why they leave, and they are leaving because they are afraid to stay. The condition of the refugees -- I'm unaware of the ones, except by the recent photographs going into Zaire -- but those that have come recently into Tanzania are increasingly suffering from malaria and diarrhea and malnutrition, so we are seeing a diminishing health status of the more recent arrivals at least into the Tanzanian side.

MR. MAC NEIL: Mr. Winter, what's your take on this latest sudden exodus which has astonished everybody by its size?

MR. WINTER: Well, two things. One is that there's no question that people are afraid. Part of the issue has to be to what degree should they be afraid perhaps. What has happened in Rwanda is for a period of several years the government has broadcast to the Hutu population that they need to fear the Tutsis and that the Tutsis will kill them, they will eat their children, and so forth. So a lot of the fear is a fear that has been drummed up by the government, itself. When I was last in the RPF section just several weeks ago, about 3/4 of the population that I saw were ethnic Hutus. And it's important to understand that the chairman of the RPF is a Hutu, and there are Hutu soldiers amongst the RPF as well as amongst the high command. And I saw no massive retribution of any kind. It's not the case that there are no incidents but it is the case there's no policy of retribution and no massive retribution that's occurring. So my hope is that while we respond to the needs of those people who are flowing into Zaire right now, that before long we will be able to get them back into the country as we get a multiparty, multiethnic government in power.

MR. MAC NEIL: Mr. Gahima, as the representative of the RPF, there were reports of your soldiers firing over the heads of these refugees as they go into Zaire. Are your forces trying to drive these Hutus out of Rwanda?

MR. GAHIMA: Our forces are not trying to drive anyone out of the country. In the country, we are trying to convince as many people as possible to stay, and some have stayed in areas like Ruhangeri, and still more others are coming back from the French zone to our area. So we want everyone to stay.

MR. MAC NEIL: Well, what reason do they have that your soldiers will exact reprisals on the Hutus, under whose government was responsible for many of the atrocities earlier in this, in this crisis?

MR. GAHIMA: As Mr. Winter said, there are many reasons why people flee. The government propaganda on the extremist radios, but there are also government troops who are convincing people to run away, and there are some others who are running away because they were involved in the atrocities, and it's also a natural reaction for people who are threatened with war to flee.

MR. MAC NEIL: Mr. Marchand, your government, the French government, called today for an emergency meeting of the U.N. Security Council. What do they want the United Nations to do?

MR. MARCHAND: Well, I guess that, as Mr. Beladieu said on Monday, the United Nations, there are is a great need for humanitarian help. I understand that the figure would be 500 tons a day, and obviously, French cannot provide that, cannot transport that by itself, so it's asking the international community to provide help, immediate help, because the French are supposed to leave the country at the end of this month. And obviously, Paris doesn't want to live in a state of chaos.

MR. MAC NEIL: What is the -- what is your feeling now about the success of the French mission there? What has it achieved?

MR. MARCHAND: Well, I guess that France has been intervening in Rwanda to show that it's still regional power in the world and especially in Africa where it has a special history to maintain, and I guess that to make that claim credible, the only way was to prevent this genocide to go further. I guess this was the reasoning in Paris. It will be a success if it prevents the genocide to go on but if they leave in 15 days with war going on and 12,000 refugees crossing the border to Zaire every hour, it will be a disaster, and especially Zaire, which is a country close, quite close to France, is already in a state of quasi chaos. And this influx of refugees is going to worsen things.

MR. MAC NEIL: Mr. Gahima, your RPF did not welcome the French when they first came. What do you think now of the French mission?

MR. GAHIMA: The French have been longtime supporters of the dictatorship in Rwanda. They provided arms. They provided troops. They provided money. They have been in Rwanda, but they have not saved many people. Mr. Beladieu said they have only saved 1,300 people since they got into Rwanda. We believe that the international community should acknowledge there is a problem of the large army which has involved itself in killing innocent civilians and it ought to be disarmed, and France is not disarming them, and we have taken the burden of disarming that military machine.

MR. MAC NEIL: You were at the State Department today and I gather that you discussed with the U.S. at the State Department when you are going to declare a cease-fire. When are you going to stop fight?

MR. GAHIMA: We will stop fighting when the part of the army that has not involved itself in the atrocities agrees to cooperate with us in identifying the people who are responsible for killing up to a million of our people so that they can be brought to justice.

MR. MAC NEIL: So how will you achieve that? Do you have to capture all those army people, or do you have to defeat --

MR. GAHIMA: No. We are holding negotiations with some of the government officers, and we hope that these negotiations can bring some results.

MR. MAC NEIL: Ms. Taft,Mr. Marchand just said the French government was appealing to the Security Council for more international aid. What scale of aid is needed to care for this large number of -- new number of refugees, and where is it going to come from?

MS. TAFT: Well, one of the tragedies of the past few months is that, that most of the funds that have been available for relief from the United States government and even from Europe have been already allocated for some real crisis areas in the Horn of Africa, which is facing famine, as well as in Rwanda and other hot spots around the world. We're in a desperate situation. There isn't food available in stocks of the U.S. foreign aid program. There's not food available evidently in the European traditional surplus stock. I think there is a massive shortfall here of maybe as much as a million metric tons. Because this is a regional concern and because it requires a concerted effort internationally, I believe we have to all put together the most high level diplomatic effort and generosity as possible. Even the American public has not been as forthcoming as they typically are on these humanitarian crises. Most of our agencies have been quite underfunded for their wonderful humanitarian response.

MR. MAC NEIL: Why is that, do you think? Why is the U.S. public not interested in this one?

MS. TAFT: I don't think it's that they're not interested. I think they haven't -- they can't quite figure out who are the good guys and who are the bad guys. And, in fact, what we're really trying to do is help the innocent victims of this incredible civil strife. There are hundreds and thousands of children, and I saw many hundreds of them, thousands of them recently. They are the ones that need the help, that need the medicine, that need the food, and are being taken care of very well through the U.N. system and the voluntary agencies. But that system is being stretched immensely not only now in Tanzania, but as, as we've seen on the screen, this human tide that's going into Zaire, there are not -- there's not the capacity in place, although the U.N. system's ready. They just need money and they need to make an urgent worldwide appeal on the humanitarian basis while they deal with the political and the diplomatic side themselves.

MR. MAC NEIL: Mr. Winter, would you agree that the U.S. public so far has not responded, and what do you think is needed from the U.S., and why has the U.S. bee slow to respond in this crisis?

MR. WINTER: I think it's clear that there hasn't been an adequate response. It's also important to understand, however, that that response has to be both inside Rwanda and with respect to these new refugees population because we haven't done a good job inside Rwanda as well as outside Rwanda, although it seems to be a lot of it does go back to the lack of understanding we have about the situation. This is not just you average African conflict. This was a killing, a murdering of a large segment of a population on the basis of their ethnicity, on the basis of their politics. It was controlled. It was planned. It was orchestrated by the government, it was highly effective, and it was genocide. And I do think that people are tired of sort of the average conflict. What they need to understand is a half a million or whatever, up to a million people died not as the incidental byproduct of a conflict but because somebody thought they could benefit politically from that and they pulled this off in a conscious way. This was genocide that needs to be dealt with differently. I think if our people understand that and that we made a commitment that we would never let this happen again, there might be a different kind of response.

MR. MAC NEIL: Mr. Gahima, you returned the prime minister- designate, Fosta Fogiromundi, a Hutu himself, to Kigali today. Will the government that he sets up welcome Hutus as well as Tutsis? Will it be a multiethnic community, and how do you guarantee that?

MR. GAHIMA: It's a broad-based government that will include all political parties except the ones that were involved in fanning those atrocities. We expect that it will be set up this weekend. It will be predominantly Hutu if that pleases people but on our side we just see them as Rwandese.

MR. MAC NEIL: Mr. Marchand, knowing Rwanda as you do and that part of Africa, are you confident that after this blood letting that Rwanda can be a viable state and a multiethnic state, where Hutus and Tutsis can live together?

MR. MARCHAND: Well, since independence this kind of slaughter has happened frequently and regularly so it's -- nobody can be very optimistic. But obviously, as this gentleman just said, the solution is to take into account the fact that there is a Hutu majority and a Tutsi minority and to include in a broad-based government moderate Hutus, moderate Tutsis, which by the way was - - would have to be the case before all that began. There was a prime minister who was a moderate, and she was killed, and all that started like this, but a broad-based government is the only solution.

MR. MAC NEIL: There have been calls, Mr. Gahima, for a tribunal to punish those who massacred so many. Is that really what you're saying, that the RPF won't stop until you find the people and arrest or apprehend the people you hold responsible for the massacre?

MR. GAHIMA: We feel extremely disappointed with the international community's attitude toward the crisis in Rwanda. The reaction to the massacres has been very disappointing, and we believe they should now step in first of all to disarm those people, then set up tribunals to try those who are responsible. We believe the UN is in the process of setting up such tribunals but we also believe that people should arm the -- disarm the killers. That's what we are doing because the UN has done nothing.

MR. MAC NEIL: Mr. Winter, from your knowledge of the area, do you think tribunals to examine claims of genocide are realistic? Do you think they can happen in this, in this setting?

MR. WINTER: I have a lot of hope that because we have unique law, the genocide convention relating to this particular crime against humanity, that we will go to extraordinary lengths to prosecute people who were involved in mass murder. But if you ask me am I hopeful that that will actually happen, the truth is, no, I'm not. I don't believe that the United States, I don't believe that Western Europe, the other major democracies have as much interest in Rwanda as to be able to support that over what could be a legal process over a period of years.

MR. MAC NEIL: Do you agree with that, Mr. Marchand?

MR. MARCHAND: Well, yes, to hope for a normal tribunal would be like hoping in Germany, 1945, to put to trial all Germans who are collaborating with Hitler. I mean, it's, it's impossible. There were many, many, many Hutu killers, and there is no way you can try all of them in a, in an organized way.

MR. MAC NEIL: I see. Well, Mr. Gahima, Mr. Marchand, Mr. Winter, and Ms. Taft, thank you all. Jim.

MR. LEHRER: Still to come on the NewsHour tonight, Stephen Breyer for the Supreme Court, and the new Boeing 777. FOCUS - CLINTON'S CHOICE

MR. LEHRER: Now the Breyer hearings. Stephen Breyer, chief judge on the U.S. Court of Appeals in Boston, spent his third, mostly peaceful day before the Senate Judiciary Committee. His confirmation to the U.S. Supreme Court is not in doubt, so most of the questions had to do with what can be expected from him once he joins the highest court in the land. We will offer two sets of answers to that and other questions about Judge Breyer right after these excerpts from today's hearing. Kwame Holman reports.

MR. HOLMAN: Judge Stephen Breyer spent most of the morning behind closed doors with members of the Senate Judiciary Committee discussing the FBI's background check on the Supreme Court nominee. But when the public portion of the hearings resumed this afternoon, it was clear these proceedings were winding down. Sen. Strom Thurmond ran out of questions to ask, catching Chairman Joseph Biden off guard.

SEN. JOSEPH BIDEN, Chairman, Judiciary Committee: Thank you. Sen. Kennedy. We're just not accustomed to someone not using their whole time.

MR. HOLMAN: And Sen. Kennedy, as he did during his first round of questions, used part of his allotted time to praise Judge Breyer.

SEN. EDWARD KENNEDY, [D] Massachusetts: Many of us, I think on this committee, hopefully the American people, have been finding out what those of us who have observed Judge Breyer as a chief judge of the circuit, a keen intellect, the broad understanding of constitutional issues, the kind of thoughtful judicial temperament which I think is so important in reaching --

MR. HOLMAN: The questions that were asked for the most part were broad and theoretical and not reviews of specific court decisions which dominate most confirmation hearings.

SEN. WILLIAM COHEN, [R] Maine: Judge Breyer, would you explain for us the difference between affirmative action and quotas.

JUDGE STEPHEN BREYER, Supreme Court Nominee: Generally speaking, I think affirmative action means you make an enormous effort, you make a really serious effort. A quota is an absolute number that you have to meet. Affirmative action means you take it seriously and you really look. That's the general accepted version I think in a lay person's terms.

MR. HOLMAN: But then Breyer responded to a question about a book he wrote suggesting better ways of allocating limited federal funds. His answer drew a terse response from committee chairman Biden.

JUDGE STEPHEN BREYER: The problem that the book is aimed at is spending a lot of money over here to save a statistical life that may not even exist at the same time that there are women with breast cancer who would live but who don't because they can't afford or find the place for the mammograms, and there are children who don't have the vaccines that will save them from death or a lot of diseases, and there are two pages I think in that book that summarize one sentence after another all those things that might be done but that aren't done. And so the book is a plea, though it's put in technical terms, it's put in a plea not to cut back by one penny this nation's commitment to health, safety, and the environment, but please, let's think about the possibility of reorganizing that commitment so that there are fewer women and children who are dying of things they really will die of because the money wasn't there when there are moneys being spent on the statistical life that might not exist.

SEN. JOSEPH BIDEN: More lives would be saved if we took that 25 percent we spend in intensive care units in the last three months of the elderly's lives, more children would be saved. But part of our culture is that we've concluded as a culture that we are going to, rightly or wrongly, we are going to spend the money costing more lives on the elderly. We made that judgment. I think it's incredibly presumptuous and elitist for a political scientist to conclude that the American people's cultural values, in fact, are not ones that lend themselves to cost-benefit analysis and presume that they would change their cultural values if, in fact, they were aware of the cost-benefit analysis. And I am delighted as a judge you are not going to be able to take your policy prescriptions into the court. I yield to Sen. Metzenbaum.

MR. HOLMAN: Sen. Howard Metzenbaum asked more questions about Breyer's financial investment and possible conflicts of interest with cases on which he ruled, forcing Breyer to respond once again.

JUDGE STEPHEN BREYER: Senator, what I do if I have a lot of money at stake or if I have a little money at stake, if there is a bi investment, or if there is a small investment, it's the same question. The question is: Look at those cases, see if there is anyone from the investment that is a party in that case. If so, you're out of it. If not, look again. Look again at that case to see if the decision in that case could substantially affect your pocket book. If so, you're out of it.

MR. HOLMAN: But Metzenbaum questioned whether Breyer's investment in a Lloyd's of London insurance plan already had benefited from one of Breyer's rulings in a toxic waste case.

SEN. HOWARD METZENBAUM, [D] Ohio: Environmental law experts tell me that as a practical matter, the Ototti case does make it more difficult for EPA to pressure polluters into speedy hazardous waste removal under stringent cleanup standards. Your judgment in the Ototti case might set precedence, might set certain standards of the law --

JUDGE STEPHEN BREYER: That's right.

SEN. HOWARD METZENBAUM: -- that could affect your investment.

JUDGE STEPHEN BREYER: Yes.

MR. HOLMAN: Other critics will testify tomorrow. Nonetheless, Judge Breyer seems assured of a favorable vote from the committee scheduled for next week.

MR. LEHRER: Now some analysis of Judge Breyer's testimony and future on the court. Charles Fried is a professor of law at Harvard Law School. He argued many cases before the court as solicitor general in the Reagan administration. Mary Cheh is a professor of law at George Washington Law School here in Washington. Mary Cheh, did you learn anything significant about Judge Breyer from these hearings that you did not know before?

MS. CHEH: Well, in order to prepare myself really for the hearings, I did a lot of reading both of his articles and of his opinions, and so, therefore, I felt I had a fairly good handle on some of his views. What was absent though in a lot of those opinions and articles was a rounded, full, philosophical view about many constitutional issues, and so I was hoping to get some of that. Rather than get that, what you got was a sort of laundry list of some things that he agrees with and some very generalized approaches to law. And I thought that it was somewhat helpful but, of course, naturally, from my perspective, I didn't get as full an answer as I'd like.

MR. LEHRER: There was no one thing that you said, oh, my goodness, I didn't know that about Stephen Breyer.

MS. CHEH: No, nothing like that, except that it did really give me, I think, a better insight -- at least I think -- into how he would approach constitutional questions. It caused me some considerable concern, but, nevertheless, it gave an insight.

MR. LEHRER: What is your concern?

MS. CHEH: Well, it seems as though both in the writings and to the extent you see it in some of the opinions and confirmed by this hearing, that he approaches constitutional questions largely from a balancing perspective. On the one hand, on the other, let's look at the government interests, the individual's interests. And in terms of constitutional rights at any rate, experience teaches us that that kind of flabby balancing almost always results in the government winning because the government always has a good reason why it has to shut you up, or why it has to regulate you, and therefore, unless you have some more stringent approach that's more individual rights protective, it's likely to result in a slow erosion of the protection of individual liberties. That's what I found somewhat disturbing.

MR. LEHRER: All right. Mr. Fried, first of all, did you find -- did anything reveal itself about Stephen Breyer that you did not know? And after you've answered that, respond to Mary Cheh's concern.

MR. FRIED: Well, I was, I was staggered by the skill with which he answered clearly and in a dignified way without crossing the line. I discovered a quote by Lincoln where he spoke about asking questions of his nominee, Salmon Chase, to be chief justice, and he said, "We cannot ask a man what he will do, and if we should and he should answer us, we should despise him for it." Well, of course, the Senators, particularly Sen. Specter and Sen. Biden, tried just as hard as they could to back Breyer as they tried to back all the previous nominees into a corner to do something for which we should then have to despise them. I don't know why they do it. I don't know what they think they're accomplishing, but they just seem driven to do it. And I was very impressed by the pragmatic way in which Breyer answered in a way that gives a sense of his approach that is illuminating. He was the teacher, and he was the teacher really to a very broad audience but he tried very hard not to cross the line where he would commit himself and deprive litigants in the court who will come before him of the sense that he has an open mind and he will consider things freshly. But I think the Senators acquitted themselves poorly and the nominee very well.

MR. LEHRER: We'll get back to that question in a moment. What do you think of Mary Cheh's point that -- do you share her concern that his answers on constitutional law questions seem to be balanced, flabby I think -- flabby balanced?

MS. CHEH: Flabby balanced.

MR. FRIED: Well, Justice Black, Hugo Black didn't like balancing, and Justice Scalia doesn't like balancing. I think most of the other Justices --

MR. LEHRER: One of them has been a very liberal -- excuse me, one of them being very liberal, Justice Black, one of them being very conservative, Justice Scalia.

MR. FRIED: That's correct. The great balancer, of course, is Justice Harlan, and he came out with some very great civil liberties decisions, so the answer is in that adjective, "flabby." I would suppose that what we'll get from Breyer is muscular balancing, and he has shown both in his answers and in his decisions as a court of appeals judge that he cares a great deal about civil liberties.

MR. LEHRER: Mary Cheh, like it or not, Supreme Court Justices are labeled liberal, conservative, moderate, or whatever. Based on your readings that you did before the hearings and based on what you heard, how would you classify Stephen Breyer?

MS. CHEH: Well, I think the characterization of him as a moderate is fair. I also think that he's a judge who seems to prefer, certainly respect to his answers, the status quo. He's not somebody likely to gobble up whole chunks of the law and find revisions that are needed.

MR. LEHRER: Either for a conservative or a liberal purpose?

MS. CHEH: That's right. In most of his answers he would simply describe what the current court has held and indicate some modest degree of approval, and so, therefore, it seems to me he's a judge for the status quo. He is a moderate. He reminds me of a different justice in some ways, namely Justice Frankfurter, who believes very much in big, active government, in fact, and is no foe of regulation, although he also believes that free market should work where it can work, but on the court takes a very deferential approach to the actions of government. He will defer to legislation, as he should, but he will defer rather significantly also to Executive Branch agencies and in their regulation, defer to expertise, and defer pretty much down the line in terms of allowing government to act. So that's the portrait that I see.

MR. LEHRER: So that's moderate conservative, right?

MS. CHEH: Well, you know, then there were other kinds of hints. For example, it's hard to draw much from these kind of generalized experiences. They're very scripted. I don't agree that there's much danger of a nominee actually saying how he or she will decide in a specific case. I think that that is a danger that we need not worry about. Whether Senators try to ask that or not, that's up to them, but the nominees really, if anything, have less information than most people would want, so I don't think there's a real danger there, but I do think, you know, overall, it wouldn't necessarily be conservative in some areas. He sounded rather rights protective in the area of the establishment quotas, but at the same time, when pressed on some details, he said that the current test of the court, instead of being a test, you see, are a series of factors that he would look to and weigh and apply as appropriate but maybe not, maybe something else. That's the best you would get.

MR. LEHRER: Mr. Fried, how would you classify him using the terms liberal, conservative, moderate?

MR. FRIED: I think he is a traditional liberal in terms of his inclinations and where his heart lies. In terms of method, he is a conservative in the judicial sense. I'm sure he does not believe that the best place to look for social change is from the courts. He is too much a man who was formed by his experience in the legislature as a staff person in the Senate, and he's too much of a Democrat to hold to this elitist notion that the first place to look for social change is to the courts. Frankly, I don't think any appointee that we'll get in a first Clinton administration is going to be a barn burner.

MR. LEHRER: Either way, or particularly on -- you mean a barn burning liberal, you mean?

MR. FRIED: That's right.

MR. LEHRER: Okay. Look, based on everything that you also know about him, adding in what you saw in the hearings, Prof. Fried, what do you -- how would you think that Stephen Breyer is going to do on this court? Is he going to be a leader? Is he going to go into one of the two factions or three -- what do you see his role to be?

MR. FRIED: I think he will very definitely be a leader because his inclination is to a way to thread the needle which will produce an intellectual and principal consensus. We got that out of answer after answer. What is there in what people are saying which shows that they have something in common? Where is the overlapping consensus between what people really care about? And in that way, he made discover the formulas which will bring together the Stephenses and the O'Connors, perhaps not Scalia, perhaps not Thomas, but I think he will provide a way for people to see that here are things that they can agree upon which is why it was so much better a choice than the choice of either Bruce Babbitt or George Mitchell, because there's no reason to believe, apart from their very great qualities, that they have the intellectual and legal skills to find the formulas which can bring people together. They may have tremendous values but that's not the point.

MR. LEHRER: Mary Cheh, how do you see the role that Stephen Breyer may play?

MS. CHEH: I think he will be in the center of the court, and I think he will be active in forming a consensus, because you do have the court largely deciding cases, what almost seems in a way on an ad hoc basis, bit by bit. And so, therefore, first of all he'll fit in that mold but also he'll provide I think as, as was stated, which I have no doubt of, intellectual fire power for whatever position he chooses to take. He is a very well qualified, very intelligent, and very scholarly and able man. There is no question about that.

MR. FRIED: Could I just add that one thing he said over and over again in his answers is that he feels the law should communicate to lower court judges and to ordinary people. And what this fractionated court has failed to do is to do that, so I think he will try to get together on consistent statements which will give guidance, and that will be a very welcome change.

MR. LEHRER: Finally, Prof. Fried commented on the conduct of the Senators. Mary Magrory in the Washington Post this morning took the Senators to task for saying they seemed to think the hearing was more about them than it was Judge Breyer. Did you have that same feeling, Mary Cheh?

MS. CHEH: They are all Senators after all. Some of them do a lot of speechifying. Their questions are longer than the answers. I do think that it's not an ideal forum to discover someone's views. That's sure. On the other hand, I often wonder about these things because we criticize them from many different directions, but what is the alternative? Would we not allow the public to bear witness? However, sort of the Senators are preoccupied with themselves. I think that there are problems with it, and this illustrates it rather nicely. I had to sit through it all, and so it was rather boring, I must say.

MR. FRIED: Thank God for the mute button is what I felt.

MR. LEHRER: On your television remote control?

MR. FRIED: Oh, yes, but I don't think that that's really completely responsive, Mary, because I do think Breyer's answers were interesting and illuminating and helpful to the public. I think the large quantity of blather from the Senators was not. I mean, the enormous proportion of wind up to pitch was absurd.

MR. LEHRER: Well, speaking of the mute button, I've got to use it on both of you all right now and me. Thank you, both of you, very much. FOCUS - HIGH HOPES

MR. MAC NEIL: This summer, engineers and pilots at Boeing are flight testing this country's newest jet liner, the 777. Boeing officials hope the new plane will end the company's economic tailspin. We have a report from Greg Hirakawa of public station KCTS in Seattle.

MR. HIRAKAWA: The new Boeing 777 roared off on its maiden flight this spring carrying with it two test pilots and the hopes of the entire company. The plane is the largest twin engine airliner ever built. When fully developed, the new 777 will be able to carry up to 440 passengers and fly up to 7200 miles, performance that will almost match the current long-haul champ, the giant 747.

FRANK SHRONTZ, Chairman, Boeing: We've developed a great product. It's going to perform well, and I think we should all be very proud of what's been wrought today.

MR. HIRAKAWA: More than 100,000 people turned out for the 777's unveiling in April. For many Boeing assembly line workers it was their first view of the plane they have been building for the past four years.

GLENDA BARNES, Boeing Employee: That's the first thing I looked at when they undid the curtains, was the wings. I wanted to see exactly what they looked like, to just imagine all the stuff that I've done inside of there.

MR. HIRAKAWA: By most accounts, the country's newest jetliner is a technological achievement. It will not be in service until next summer but it is already being billed as the most efficient jetliner ever built. Pilots will control the plane's flaps and rudder through the use of lightweight electronics rather than heavy steel cables. Portions of the 777 are made from composite material, further lowering the plane's weight and ultimately the amount of fuel required to fly it. Boeing officials believe the 777 will cost 25 percent less to operate than their older 747. But while Boeing's new plane will be powered by the largest jet engines ever manufactured, the company is dependent on an airline industry that has lost $15 billion since 1990. Bill Whitlow is an industry analyst.

BILL WHITLOW, Airline Industry Analyst: The airline industry is really having problems, and it's getting a little bit better because the economy is a little bit better. But it still is yet to make any money. I think the hope is that possibly the industry on a worldwide basis breaks even this year and hopefully makes some money next year, but we're not there yet.

MR. HIRAKAWA: The downturn has spilled over into Boeing, which over the past year has laid off 15,000 workers and has cut back production on some models by 40 percent. Problems in the airline industry are also casting a shadow on the financial success of the 777. Boeing so far has 147 orders for the new plane. Analysts believe the company will need to sell at least twice that many in order to recapture the 777's estimated $5 billion in development cost. Whether the plane makes Boeing any money, experts say, largely depends on how fast the 777 sells. The longer it takes, the less profitable the plane becomes. Charles Hill is a business professor at the University of Washington.

CHARLES HILL, University of Washington: There's something like 2,100 aircraft I think at the end of this year flying that are over 20 years old. Most of those are going to be taken out of service this decade. So that in itself is going to create demand for the replacement aircraft, plus there's the new demand, plus there's going to be the demand to shift to more fuel-efficient aircraft, while the old aircraft are not fuel-efficient, plus there's FAA noise abatement regulations. But for all those reasons, you know, demand is likely to grow. The question is when. Is it going to be next year, is it going to be the year after, and how long is Boeing going to have to stretch out its deliveries and survive on a thin incoming stream of waters until things tick up again?

MR. HIRAKAWA: The new plane will cost between one hundred and sixteen million and one hundred and forty million dollars each. Whether airlines can afford the jet is only one problem facing the 777. Boeing is also betting their new plane will be the first twin engine jet allowed to fly more than three hours away from land without going through years of in-service flight testing. The Federal Aviation Administration rating is known as E-TOPS, or Extended Twin Operations. It is also jokingly referred to as Engines Turn or Passengers Swim. The certification is based on the simple fact that should an engine fail on a three or four engine jet, the plane would still have two or engines to make it back to land. A twin engine jet would only have one engine left, although in an emergency, a plane can still fly on one engine. Pilot and airline consultant John Nance believes passengers should not worry about flying over water in a two-engine jet.

JOHN NANCE, Airline Consultant: A single engine plane now is not going to put you in the peril that I and originally many others thought it would, plus the reliability of the engines this day and time, it's going to be a different world, so I really think that we have progressed from thinking of this as a real problematic, worrisome area to a non-event.

MR. HIRAKAWA: But federal regulations say otherwise, and that could lead to problems for carriers like United Airlines, the single largest buyer of the new 777. The airline bought the plane to fly long over water routes. Should the plane not receive an immediate extended twin-engine rating, United's Gordon McKinzie says it would restrict where the airline can fly its brand new jet.

GORDON McKINZIE, United Airlines: It would hurt our flexibility as a carrier to fly the kind of routes we want to fly. And one thing you couldn't do is fly to Hawaii. Now that may not be in our initial planning, but in flying the Atlantic even, fully E-TOPS authority helps you even flying there, because it shortens your routes and it makes the alternates that in case you had a problem, the alternates have to be in good weather before you can even take off without E-TOPS. If you've got E-TOPS, you can just take off.

MR. HIRAKAWA: Some analysts believe not receiving an immediate E-TOPS certification could hurt 777 sales. Carriers could move to two other planes already in service. Boeing's principal American rival, McDonnell Douglas, makes the three-engine MD-11. Airbus, a European consortium which has already cut into Boeing's share of the airline market, builds the four-engine A-340. The two planes have approximately the same range and seating capacity as the 777 and have no restriction s on flying long over water routes. When passengers finally board the 777 next summer, they should notice more head room and overhead storage compared to other airliners currently in service. Depending on the seating configuration, the plane may also offer wider aisles and slightly more seating and leg room. But in trying to build a plane popular both with the airline and air travelers, Boeing officials say they have tried to restructure the company, itself. In designing the 777, engineers dispensed with building the traditional but expensive full-scale mock-up. Instead, the 777 is the first plane of its size designed entirely on computer. Plane parts went directly from the computer screen to assembly. Boeing hopes to use the process on all future company projects. The results, say Boeing officials, will be faster turnaround time and lower development costs. Boeing also became more attentive to its customers, the airlines, allowing them for the first time to make design changes before the aircraft was built. Attempting to streamline manufacturing and design at Boeing has been a costly undertaking. The 777 is the most expensive jetliner the company has built since it rolled out the then revolutionary 747 twenty-five years ago. Despite its current popularity, the jumbo jet was plagued with design problems and almost bankrupted the company. Boeing President Phil Condit concedes they are taking chances with the current reorganization as well.

PHIL CONDIT, President, Boeing: There are always risks. We're in a lot better financial condition than we were when we launched the 47 [747]. But in terms of positioning the company for the future, it is really the same kind of things. The decisions that were made 20 years ago have shaped the company that is here today. The decision to make the 747, which was way beyond what anybody had done, to bet the company on that, and you need, when you are on top, to be making those kinds of decisions and doing it for the future.

MR. HIRAKAWA: Even if 777 sales take off, Boeing does not expect to start hiring back workers anytime soon. Orders for new airplanes are not likely to increase in the near future and if and when they do, Boeing's downsizing means the company will be using fewer people to build new planes. But analyst Bill Whitlow says prospects for the 777 and the airlines may be better than some people think.

BILL WHITLOW: Boeing has 147 firm orders, and this airplane was launched at the beginning of the worst debacle in the airline industry's history in terms of the amount of losses they've had in the last four years, and given 147 air orders, firm orders, in that environment I'd say speaks very highly to the desirability of the airplane.

MR. HIRAKAWA: The 777 program has had its share of small glitches, but so far company officials say there has been nothing to suggest the plane will not make its summer '95 delivery date.

MR. MAC NEIL: Weather permitting, Boeing says it will flight test its second 777 tomorrow. That plane is fully equipped and destined for delivery to United Airlines. RECAP

MR. LEHRER: Again, the major stories of this Thursday, another mass exodus from Rwanda is underway. Relief officials said as many as 900,000 people will enter neighboring Zaire by this weekend. White House spokesman Dee Dee Myers said President Clinton has made no decision yet on using military force in Haiti. The Senate rejected a Republican proposal aimed at forestalling military action for at least 45 days. Good night, Robin.

MR. MAC NEIL: Good night, Jim. That's the NewsHour for tonight. We'll be back tomorrow night with our regular political analysts, Mark Shields and Paul Gigot. I'm Robert MacNeil. Good night.