The NewsHour with Jim Lehrer

JIM LEHRER: Good evening. I'm Jim Lehrer. On the NewsHour tonight, the news of this Tuesday; excerpts from Chief Justice Nominee John Roberts' day answering questions, with analysis by legal scholars Pam Karlan and Ted Olson; plus two Katrina recovery stories: The discovery of 40-plus bodies at a New Orleans hospital, and the latest on separating the real charities from the phonies.

NEWS SUMMARY

JIM LEHRER: John Roberts faced a day of grilling today at his Senate confirmation hearings to be chief justice. Democrats wanted specifics on abortion, voting rights, and other issues, but Roberts declined to give detailed answers on issues he might face on the court.

He did say the heart of Roe v. Wade, legalizing abortion, is "settled as a precedent of the court." But he also said if precedents are unworkable, "that's one factor supporting reconsideration." We'll have much more on the Roberts hearings right after this News Summary. The hurricane death toll hit 423 in Louisiana today, pushing the overall total to 650. The news came amid questions about death at a New Orleans hospital. Betty Ann Bowser narrates our report on the day's events.

BETTY ANN BOWSER: There were signs of a halting civic revival in New Orleans today amid further horrific revelations in the flooded city.

SPOKESMAN: Approximately 44 bodies were removed: A combination of Life Care and Memorial Medical Center patients.

BETTY ANN BOWSER: But how and when those people died remained in dispute. Hospital administrators say despite heroic efforts, that blistering heat as high as 106 degrees in the ward probably was a factor in some deaths. They said the patients were not abandoned.

However, a spokesman for Tenet Healthcare, which owns the hospital, said several patients were already dead and none died from lack of food, water or loss of electricity.

The coroner of Orleans Parish told NBC News that autopsies will be performed to determine the cause of death.

DR. FRANK MINYARD, Orleans Parish Coroner: I can assure the public that we will do autopsies on all of those people to determine exactly how they died. But I can't say why they weren't removed. I don't know.

BETTY ANN BOWSER: Today Louisiana Governor Kathleen Blanco blasted FEMA's efforts to recover the dead, saying the agency was moving too slowly.

GOV. KATHLEEN BLANCO: While the recovery of bodies is a FEMA responsibility, I cannot stand by while this vital operation is not being handled appropriately. In death, as in life, our people deserve more respect than they have received.

BETTY ANN BOWSER: A FEMA spokesman said the state of Louisiana asked to take over the operation last week and denied that it is normally a federal responsibility.

There were signs of progress today. Repairs continued on the London Avenue Canal, where one fatal levee breach occurred. Engineers predicted the city could be drained by Oct. 8. Louis Armstrong Airport reopened to some commercial airline traffic but with the city's bombing and vacation industries sidelined it was unclear who will be arriving on those few flights. Limited rail service has also resumed.

SPOKESMAN: The port of New Orleans is open for business.

BETTY ANN BOWSER: Today the port of New Orleans expected its first cargo ships since the hurricane with several more in the offing. Early estimates were that the port, which is a vital economic nerve center for the nation, could be closed for six months.

But many Orleanians will be gone for much longer. Finding evacuees permanent housing is now a priority. The acting director of Federal Emergency Management, David Paulison addressed the issue today just hours into his tenure.

DAVID PAULISON: Our focus is that we get these people out of the shelters into some type of a permanent or semi-permanent housing.

BETTY ANN BOWSER: It is a long-term need. Some estimates predict that 200,000 evacuees may need housing until 2010. One place many may never return is St. Bernard Parish east of New Orleans.

HENRY "JUNIOR" RODRIGUEZ, President, St. Bernard Parish: I hope all of you remember St. Bernard, what it looked like when you left because when you go back, you won't recognize it.

BETTY ANN BOWSER: Many of its 66,000 residents say there are few houses left to go home to.

JIM LEHRER: Later in the day New Orleans Mayor Ray Nagin said the dry parts of the city could officially reopen on Monday. That's if the U.S. Environmental Protection Agency finds the air and water are safe.

President Bush said today he's accountable for the federal government's response to the hurricane. He said he would not defend the way federal officials reacted in the first days of the disaster, and he said it's in the national interest to find out just what happened.

PRESIDENT GEORGE W. BUSH: Katrina exposed serious problems in our response capability at all levels of government. And to the extent that the federal government didn't fully do its job right, I take responsibility.

I want to know what went right and what went wrong. I want to know how to better cooperate with state and local government to be able to answer that very question that you asked: Are we capable of dealing with a severe attack?

JIM LEHRER: The administration also moved today to monitor the money spent on hurricane recovery. So far, Congress has approved more than $60 billion, and officials have awarded some contracts without competitive bidding to speed things up.

Today the Secretary of Homeland Security, Michael Chertoff, said 30 investigators and auditors are going to the Gulf region. He said, "We're going to cut through red tape, but we're not going to cut through the laws."

North Carolina ordered evacuations along more of the outer banks today as Tropical Storm Ophelia approached. Late in the day, the storm was about 100 miles south of Wilmington, North Carolina, and slowly churning toward shore. Also, there were voluntary evacuations in South Carolina, and Virginia declared an emergency.

U.S. forces launched new attacks against insurgents in western Iraq today. The assault focused on Haditha, one of a series of towns controlled by militants in that region. It followed an offensive in Tal Afar, farther north. U.S. commanders said more than 400 guerrillas were captured there.

Iraq's president stepped back today from talk of major U.S. troop departures. Jalal Talabani had told the Washington Post that Iraqi forces could replace up to 50,000 U.S. Troops by the end of this year. Today, Talabani addressed the issue again after meeting with President Bush at the White House.

PRESIDENT JALAL TALABANI, Iraq: We will set no timetable for withdrawal, Mr. President. A timetable will help the tourists -- will encourage them that they could defeat super power of the world and Iraqi people. We hope that by the end of 2006 our security forces are up to the level of taking responsibility from many American troops with complete agreement with Americans.

JIM LEHRER: Mr. Bush insisted again the U.S. would not give ground to insurgents, despite what he called "acts of staggering brutality."

Talks on North Korea's nuclear program resumed today, with little sign of any breakthrough. Negotiators from six nations met in Beijing, China. North Korea insisted again it has a right to nuclear power for civilian uses. The U.S. said the focus must be on ending North Korea's ability to make nuclear weapons.

Authorities in Ohio today investigated the discovery of children forced to sleep in cages. Over the weekend, 11 youngsters were found at a home in Wakeman, outside Cleveland. They had various disabilities, including autism. The adoptive parents said a psychiatrist recommended using the cages. So far, no charges have been filed.

In economic news, the Labor Department reported today wholesale prices went up .06 percent in August. It was due mostly to higher energy costs.

And on Wall Street, the Dow Jones Industrial Average lost 85 points, to close at 10,597. The NASDAQ fell 11 points, to close at 2171.

And that's it for the News Summary tonight. Now it's on to the Roberts hearings, and two Katrina stories: Deaths at a New Orleans hospital, and charities and scams.

FOCUS - THE ROBERTS HEARINGS

JIM LEHRER: Day two of the Roberts confirmation hearings, and the questioning begins. Kwame Holman reports.

KWAME HOLMAN: Everything was different today. Judiciary Committee Chairman Arlen Specter moved the confirmation hearings from the historic Senate Caucus Room in the Russell Office Building to a modern, more spacious hearing room in the Hart Building. And the senators' scripted opening statements that filled yesterday's session were replaced by pointed case- specific questions.

In fact, 30 seconds after he gaveled today's hearing into session, Chairman Specter went directly to the 1973 landmark abortion decision Roe versus Wade and whether it is considered settled law.

SEN. ARLEN SPECTER: And I begin collaterally with the issue of stare decisis and the issue of precedents. Black's Law dictionary defined this term as "let the decision stand, to adhere to precedence and not to unsettle things which are established."

KWAME HOLMAN: Specter cited as an example Casey versus Planned Parenthood, the court's 1992 decision that for the most part upheld Roe.

SEN. ARLEN SPECTER: In Casey, the key test on following precedence moved to the extent of reliance by the people on the precedent and the... Casey had this to say in a rather earthy way: "People have ordered their thinking and living around Roe. To eliminate the issue of reliance one would need to limit cognizant reliance to specific instances of sexual activity. For two decades of economic and social developments, people have organized intimate relationships in reliance on the availability of abortion in the event contraception should fail." That's the joint opinion, rather earthy in its context. Would you agree with that?

JUDGE JOHN ROBERTS: Well, Senator, the importance of settled expectations in the application of stare decisis is a very important consideration. That was emphasized in the Casey opinion but also in other opinions outside that area of the law. The principles of stare decisis look at a number of factors, settled expectations, one of them as you mentioned; whether or not particular precedents have proven to be unworkable is another consideration on the other side -- whether the doctrinal bases of a decision have been eroded by subsequent developments.

For example, if you have a case in which thereare three precedents that lead and support that result and in the intervening period two of them have been overruled, that may be a basis for reconsidering the prior precedent.

SEN. ARLEN SPECTER: But there's no doctrinal basis erosion in Roe, is there, Judge Roberts?

JUDGE JOHN ROBERTS: I feel the need to stay away from a discussion of particular cases. I'm happy to discuss the principles of stare decisis.

SEN. ARLEN SPECTER: The joint opinion after the statement as to sexual activity to come to the core issue about women being able to plan their lives, quote, the joint opinion says the ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives. Do you agree with that statement, Judge Roberts?

JUDGE JOHN ROBERTS: Yes, Senator, as a general proposition. But I do feel compelled to point out that I should not, based on the precedent of prior nominees, agree or disagree with particular decisions. And I'm reluctant to do that. That's one of the areas where I think prior nominees have drawn the line when it comes to, do you agree with this case or do you agree with that case? And that's something that I'm going to have to draw the line in the same place.

SEN. ARLEN SPECTER: I'm not going to ask you whether you're going to vote to overrule Roe or sustain it. But we're talking here about the jurisprudence of the court and their reasoning. Let me come to another key phase of Casey where the joint opinion says, a, quote, terrible price would be paid for overruling Roe.

JUDGE JOHN ROBERTS: I do think that it is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and even-handedness. It is not enough-- and the court has emphasized this on several occasions-- it is not enough that you may think the prior decision was wrongly decided. That really doesn't answer the question. It just poses the question.

And you do look at these other factors, like settled expectations, like the legitimacy of the court, like whether a particular precedent is workable or not, whether a precedent has been eroded by subsequent developments. All of those factors go into the determination of whether to revisit a precedent under the principles of stare decisis.

KWAME HOLMAN: Chairman Specter then moved to a broader discussion about the right to privacy and whether Judge Roberts believed it was protected by the Constitution.

JUDGE JOHN ROBERTS: Senator, I do. The right to privacy is protected under the Constitution in various ways. It's protected by the Fourth Amendment, which provides that the right of people to be secure in their persons, houses, effects and papers is protected. It's protected under the First Amendment dealing with prohibition on establishment of a religion and guarantee of free exercise, protects privacy in matters of conscience. It was protected by the framers in areas that were of particular concern to them that may not seem so significant today -- the Third Amendment protecting their homes against the quartering of troops.

And in addition the court has over a... in a series of decisions going back 80 years has recognized that personal privacy is a component of the liberty protected by the due process clause. The court has explained that the liberty protected is not limited to freedom from physical restraint and that it's protected not simply procedurally but as a substantive matter as well.

And those decisions have sketched out over a period of 80 years certain aspectsof privacy that are protected as part of the liberty in the due process clause under the Constitution.

KWAME HOLMAN: The committee's top Democrat Patrick Leahy of Vermont went next and challenged Judge Roberts to defend several opinions he wrote as a Justice Department lawyer in the Reagan administration.

SEN. PATRICK LEAHY: You objected to a bill that would give certain preferences to veterans would had served in Lebanon between Aug. 20, 1982, and, quote, the date the operation ends, close quote. The day would be either set by presidential proclamation or a concurrent resolution of Congress. You wrote that the difficulty with such a bill is that it recognizes a role for Congress in terminating the Lebanon operation. You wrote further, quote, I do not think we would want to concede any definite role for Congress in terminating the Lebanon operation even by joint resolution presented to the president.

JUDGE JOHN ROBERTS: The memo you refer to, I was working in the White House Counsel's Office then. The White House Counsel's Office is charged to be vigilant to protect the executive's authority just as you have lawyers here in the Senate and the House has lawyers who are experts and charged with being vigilant to protect the prerogatives of the legislative branch.

I believe very strongly in the separation of powers. It was a very important principle that the framers set forth that is very protective of our individual liberty to make sure the legislative branch legislates, the executive executes and the judicial branch decides the law.

SEN. PATRICK LEAHY: But your position in this memo in President Reagan's office seemed to indicate that Congress has... does not have an ability to end hostilities.

JUDGE JOHN ROBERTS: With respect, Senator, you're vastly over reading the memorandum.

SEN. PATRICK LEAHY: Tell me why.

JUDGE JOHN ROBERTS: Well, because it had nothing to do with terminating hostilities. It had to do with the eligibility for certain pension benefits.

And the question then was whether or not who should be determining when the hostilities ceased or should cease and I suspect if you asked any lawyer for any president of any administration whether they wanted to concede that general principle or if, as careful lawyers, they would prefer that that provision were rewritten or not in there, I'm fairly confident that regardless of the administration that a lawyer for the executive would take the same position.

KWAME HOLMAN: Utah Republican Orrin Hatch asked Judge Roberts about the pro bono work he has done throughout his career.

SEN. ORRIN HATCH: The position that you have been nominated for is Chief Justice of the United States. Do you plan to use that role as a bully pulpit to encourage members of the bar to take seriously their responsibility to undertake pro bono work as you have done throughout your legal career?

JUDGE JOHN ROBERTS: Yes, Senator, if I am confirmed I would hope to do that. If I'm not I would hope to do that back on the court of appeals. I think it's a very important part of a lawyer's obligation.

KWAME HOLMAN: But Edward Kennedy of Massachusetts launched into a long criticism of Roberts' opinions -- again while a Reagan administration lawyer -- on civil rights issues such as extension of the Voting Rights Act.

SEN. EDWARD KENNEDY: I'm deeply troubled by a narrow and cramped and perhaps even a mean-spirited view of the law that appears in some of your writings. The only documents that have been made available to us it appears that you did not fully appreciate the problem of discrimination in our society. It also seems that you were trying to undue... undo the progress that so many people had fought for and died for in this country.

KWAME HOLMAN: Kennedy interrupted several times as judge Roberts attempted to explain his positions, finally setting up this exchange.

SEN. EDWARD KENNEDY: And the Supreme Court....

JUDGE JOHN ROBERTS: That's all....

SPOKESMAN: Let him finish his answer, Sen. Kennedy.

JUDGE JOHN ROBERTS: The point is at and again this is revisiting a debate that took 23 years ago.

SEN. EDWARD KENNEDY: I'm interested today in your view. Do you support the law that Ronald Reagan signed into law and that was co-sponsored --

JUDGE JOHN ROBERTS: Certainly. The point I would make is two-fold. That those like President Reagan, like Attorney General Smith, who were advocating extension of the Voting Rights Act without change were as fully committed to protecting the right to vote as anyone.

SEN. EDWARD KENNEDY: Could I....

SPOKESMAN: Let me finish his answer, Sen. Kennedy.

JUDGE JOHN ROBERTS: And the articulation of views that you read from represented my effort to articulate the views of the administration and the position of the administration for whom I worked, for which I worked, 23 years ago.

KWAME HOLMAN: The questions posed by Iowa Republican Chuck Grassley dealt with the role of the judiciary in connection with the other two branches of government, the executive and the legislative.

SEN. CHUCK GRASSLEY: Some legal scholars claim that when the political branches of government are slow to act, the broad and spacious terms of the Constitution lend themselves to court-created solutions. Do you agree with this role of the court?

JUDGE JOHN ROBERTS: I have said that it is not the job of the court to solve society's problems, and I believe that. It is the job of the court to decide particular cases. Now sometimes cases are brought and the courts have to decide them, even though the other branches have been slow to act, as you say.

Brown versus Board of Education is a good example. The other branches in society were not addressing the problems of segregation in the schools. They were not just slow to act. They weren't acting. But that didn't mean the court should step in and act.

But when the courts were presented with a case that presented the challenge, this segregation violates the equal protection clause -- the courts did have the obligation to decide that case and resolve it - and in the course of doing that, of course, changed the course of American history.

KWAME HOLMAN: Along those same lines, Wisconsin Democrat Herb Kohl asked judge Roberts how the courts should react to the tragedy that unfolded following Hurricane Katrina.

SEN. HERB KOHL: But in spite of all of our laws and all of our rules, we still saw what happened down in New Orleans. The people who were left behind were people who had not had educational or employment opportunities. The question I asked was whether you as a person who aspires to become the Chief Justice of the United States sees a particular role other than continuing the role that you observe we are following now, the particular role for improving our ability to respond to the needs of those people who live under those circumstances.

JUDGE JOHN ROBERTS: Well, the courts are, of course, passive institutions. We hear cases that are brought before us. We don't go out and bring cases. We don't have the constitutional authority to execute the law. We don't have the constitutional authority to make the law. Our obligation is to decide the cases that are presented. Now I'm confident just in the nature of things that there will be cases presented arising out of that horrible disaster, of all sorts. And many of those will be federal cases, I'm sure. Others will be in the state courts.

And, again, the obligation of the federal judiciary and the state judiciary is to make sure they provide a place where people can have their claims, their litigation decided fairly and efficiently according to the rule of law.

KWAME HOLMAN: California Democrat Diane Feinstein is the lone woman on the Judiciary Committee. And this afternoon she returned to the morning's discussion of two of the court's abortion- related decisions, Roe v. Wade, and Casey versus Planned Parenthood.

SEN. DIANNE FEINSTEIN: Unlike my experience, there are now entire generations of women who know a world only where their reproductive rights are protected. Do you agree with the court that this reliance is sufficient?

JUDGE JOHN ROBERTS: Well, again, I think that's asking me whether I think the decision was correct or not on that point. It certainly was the analysis of the joint opinion in the court entitled to respect as precedent like any other decision of the court under principles of stare decisis.

And that would certainly be where I would begin if any of these issues were to come before the court. If I were to be confirmed I would begin with the precedent that the court has laid out in this area.

SEN. DIANNE FEINSTEIN: One other question on Casey. I'd like to quote from something that Justice Ginsburg said in the transcript in her confirmation hearing in a discussion with then Sen. Brown: The Casey majority understood that marriage and family life is not always what we might wish them to be. There are women whose physical safety, even their lives, would be endangered if the law required them to notify their partner. And Casey, which in other respects has been greeted in some quarters with great distress answered a significant question, one left open in Roe. Casey held a state could not require notification to the husband. Do you agree?

JUDGE JOHN ROBERTS: That is what Casey held, yes. That's, as I said before, a precedent of the court, like any other precedent of the court entitled to respect under principles of stare decisis.

KWAME HOLMAN: Alabama Republican Jeff Sessions added his own thoughts.

SEN. JEFF SESSIONS: Well, I would like to know how you'd rule on a lot of those cases too. I didn't ask you when you came and talked with me. And I don't think it's appropriate.

I don't think those of us who are politically conservative ought to look to the courts to promote our conservative agenda through the manipulation of interpreting words of the Constitution or statutes.

I don't think liberals have a right to ask the court to promote their agenda by twisting the plain meaning of words to accomplish an agenda. What we need is what you said, an umpire -- fair and objective that calls it like they see it based on the discreet case that comes before the judge. I think that's most important.

And I just don't think that we ought to take the view that that matter is open and shut. And I hope that you will take... we'll take you at your word that your mind is open and you will evaluate the matter fairly according to the high standards of justice that you can bring to bear to that issue and any others like it that come up. Will you give us that commitment?

JUDGE JOHN ROBERTS: Absolutely, Senator. I would confront issues in this area as in any other area with an open mind in light of the arguments, in light of the record, after careful consideration of the views of my colleagues on the bench and I would confront these questions just as I would any others that come before the court.

KWAME HOLMAN: And in response to a question from Wisconsin Democrat Russ Feingold Judge Roberts said he hadn't settled on an opinion about whether to allow cameras to televise Supreme Court proceedings but he's thinking about it.

A second round of questions for Judge John Roberts will begin tomorrow morning.

JIM LEHRER: And to Margaret Warner.

MARGARET WARNER: So what did we learn about Judge Roberts's views from today's first round of questioning? To sort through that, we turn to two legal scholars who've frequently argued cases before the Supreme Court. Ted Olson was solicitor general of the United States from mid-2001 to mid-2004. He's now an attorney with Gibson, Dunn and Crutcher in Washington. And Pam Karlan is professor of public interest law at Stanford Law School. She clerked for Supreme Court Justice Harry Blackmun in the mid-80s. Welcome to you both.

Let me start with you, Ted Olson. I know you participated in one of the practice sessions with Judge Roberts. Just in terms of style, demeanor, how well do you think he handled today, his first round of questioning?

TED OLSON: Well, I'm biased. John has been a friend of mine for a long time. And I support his... I thought his nomination was a very, very good choice. But notwithstanding that, I thought he was brilliant. The demeanor that he projected to the senators and to the American people was someone who was thoughtful, careful, measured, open minded, fair, judicious. That is John Roberts, but that's also the feeling that he projected to the American people.

MARGARET WARNER: And is that politically important?

TED OLSON: It's very politically important because to the extent that senators are on the fence, they're more inclined to vote against him if they don't think the American people like him. Judge Bork who was a friend of mine and someone I respect a great deal did not come across favorably to the American people. And that was a part of the problem in his confirmation proceedings.

I think what you saw today and the American people saw today is someone that they would feel comfortable with wearing the robes of the Chief Justice of the United States.

MARGARET WARNER: Professor Karlan, how do you think he did on that kind of a scale?

PAM KARLAN: Well, if the question is, is he a likable person, is he articulate, is he measured, he came across quite well. I don't think anybody doubted that he was any of those things. I think what people were most concerned about in a sense is what his views are on how the Constitution should be interpreted, on what the role of a court is relative to the role of the president, the states, Congress and individuals.

And I think what you saw is a man who is an extraordinary advocate, advocating for himself in a forum in which he can't be forced really to answer questions.

MARGARET WARNER: So let's jump right into some of these issues - and there were so many today -- but Professor Karlan, abortion. That's where Arlen Specter went right away. If you were interested, a really interested party and advocate on that issue, what would you take away from that big discussion they had about precedent, about Roe, about the Casey decision? What could you take away from that in terms of Judge Roberts and the framework he had used to approach an abortion case?

PAM KARLAN: Well, I think he would start with the Casey opinion. And the important thing to understand about Casey is that it has a very open texture because what the Supreme Court recognized there is that on the one hand women have a liberty interest under the 14th Amendment in deciding whether or not to carry a pregnancy to term but that states also have an interest and that the state can regulate abortion as long as the regulation doesn't impose what the Supreme Court called an undue burden.

Here's what the problem is. No one knows precisely which burdens are undue burdens and which ones are appropriate. And so within the structure of stare decisis this court could well approve a lot of restrictions on abortion that the Burger court wouldn't have approved, that the justices who were serving at the time of Casey wouldn't have approved.

So to say that you'll abide by Casey isn't a very concrete example of how important do you think a woman's right to choose really is.

MARGARET WARNER: What's your view of that, Mr. Olson -- what someone would take away from his approach to abortion?

TED OLSON: He was very careful to say, I cannot tell you how I would decide that case or any other case. And it wouldn't be appropriate for me to comment on that. He was very careful. He said that over and over again.

I think what he projected is he would be open minded. He would look at the briefs, listen to the arguments, listen to his colleagues, look at the facts, consider the Roe case and the Casey case as decisions of the United States Supreme Court that are entitled to great respect and precedential value for all the reasons he identified but that he would look at it with an open mind and he did not say how he would come out in a particular case. And I don't think he could because he's never been a justice on the Supreme Court.

MARGARET WARNER: But in his discussion of precedent, wouldn't you say he was very careful to say, yes, it's the settled law of the land but only as much as any other precedent is? And he did outline that there are circumstances under which precedent is reversed.

TED OLSON: Yes. And it's clear from what he said, he acknowledges the fact that the Supreme Court sometimes changes its mind. It did in Brown Versus Board of Education. He mentioned that. He regards those decisions as precedents of the Supreme Court but they're not inviolate.

MARGARET WARNER: Pam Karlan, what about the right to privacy which was part of this discussion but also has broader application? He did say it was no longer his view when he said as a young lawyer in the Reagan White House there was a so- called right to privacy or he referred to the amorphous right. And it was in the Constitution. Where does that take you?

PAM KARLAN: Well again it doesn't take you very far because I think everyone understands two things: The first is that there are various rights to privacy in the Constitution, and the second is that oftentimes what the court is called upon is to balance the individual's right to privacy against a claim by the government that it can intrude on that privacy.

And so that's the first thing -- that everybody understands that it's a balancing. And the question is where an individual justice would want to strike the balance.

The second thing I think everybody understands-- and this goes back to a point that Ted Olson was making ago moment ago-- is to say you don't believe in any right to privacy is to touch a third rail as a nominee. And so in saying that he believes in a right to privacy he hasn't again told you very much about whether he would strike the balance where someone who is a robust defender of privacy would do or whether he would have a very cramped view of which kinds of privacy individuals can maintain if the government wants to take it away.

MARGARET WARNER: Do you agree with that, that someone very concerned about civil liberties couldn't take this right to privacy statement as great comfort?

TED OLSON: I agree with that. He was very careful to say -- and he's being pushed here because people want to know how he would rule in certain cases -- he's not going to do it. He made it clear today over and over again in very measured tones -- and I think the real -- one of the reasons why he said that, not just because it isn't appropriate for someone to promise to do something -- he honestly believes that he can't tell you how he would decide something until it came before him as a justice. That's what he promises you as a prospective justice. He won't decide until the case is there.

MARGARET WARNER: All right. That's a given. But let me switch to another topic. Given that he's not going to tell you how he's going to decide -- we'll grant that. We'll stipulate that -- there have been a lot of questions about his views about racial civil rights and gender discrimination -- that whole area.

And Sen. Kennedy and Sen. Biden really tried to work him over on that. How did that come out -- again, just if you were a layman looking at that?

TED OLSON: Oh, I thought John Roberts demonstrated a great deal of sensitivity to the rights of women and to the rights of minorities, to the protections under the equal protection clause and despite some rather contentious questioning by Sen. Biden and Sen. Kennedy and others with respect to those subjects --

MARGARET WARNER: The Voting Rights Act.

TED OLSON: The Voting Rights Act. John was very -- Judge Roberts, excuse me, was very careful to point out what was going in those various different memoranda. The questions took quotations out of context. John was very good or Judge Roberts was very good to point out to justice -- to Sen. Kennedy, for example, you've misstated what I represented in those memoranda. He came right at him.

MARGARET WARNER: Professor Karlan, you have the last word on this, on the whole racial and gender discrimination area -- what you thought came through.

PAM KARLAN: Well, what came through is that he wasn't willing to stand by what the Reagan administration's position had been, for example, on the Voting Rights Act. And he said, well, you have to understand I wrote that 23 years ago -- I think because the Supreme Court that decided the voting rights act cases after Congress enacted the statute Sen. Kennedy was asking about repudiated the view that he would have pushed.

So if I could just use one example here: Although Judge Roberts doesn't want to say how he would rule on cases in the future and doesn't even want to say much about cases in the past lest it give some indication of where he might go in the future he several times today said that he believed Brown against Board of Education was correctly decided and indeed he thought the case for it was stronger than ever.

And so one of the things to ask is in 1953 if Justice Roberts-to-be had thought about Brown, which side would he have been on then because in 1982 when it came to the renewal and the extension and the strengthening of the Voting Rights Act, he was as a junior lawyer on the wrong side, on the wrong side legally and on the wrong side of history.

And so the question isn't will he apply the law that other people have come up with; it's how will he think about the undecided issues when he has the power to decide those issues rather than simply to apply decisions that have already been decided in the past.

MARGARET WARNER: Professor Karlan, Theodore Olson, we have to leave it there. Thank you both.

TED OLSON: Thank you.

PAM KARLAN: Thank you.

FOCUS - HOSPITAL DEATHS

JIM LEHRER: The continuing aftermaths of Katrina: Terence Smith gets the latest on the grim discovery of bodies at a New Orleans hospital.

TERENCE SMITH: Authorities report that they found at least 44 bodies in the flooded Memorial Medical Center in New Orleans. But what is unclear is whether some of those who died were hospital patients waiting to be evacuated.

Douglas Struck, who's been covering this story for the Washington Post, was at the hospital today and yesterday, and he joins us now.

Doug Struck, welcome. What is the situation now at the Medical Memorial Center? You've been there. What's it like?

DOUGLAS STRUCK: Right now the place is closed and boarded up. It's surrounded by National Guardsmen who will not allow anyone nearby. Earlier today, a helicopter from - presumably from the company that owns it - landed and took a look around, but this is a facility that's now dead and empty as far as present uses.

All of the patients and all of the staff have literally scattered across the lower states to other hospitals and other places.

TERENCE SMITH: What have you been able to learn about what happened there?

DOUGLAS STRUCK: It's still quite murky as to exactly what happened in the days after Katrina hit New Orleans. The hospital, itself, had about 240 patients. They survived the storm fine. The hospital came through. When the power went out, their emergency power went on.

But in the succeeding days, in the next four days as the waters from the broken levee gradually rose, it's unclear as to how prepared the hospital was to deal with it. Clearly, this was a catastrophe they hadn't expected. The lights -- the generator ran out of diesel fuel. The electricity went off. They had only a few little generators to keep going. Medical supplies ran low.

The heat soared inside the hospital to well above 100 degrees. People were fanning patients to try to keep them cool. And many of these patients were elderly and quite ill and they succumbed.

In that period, as many as 45 people died apparently. The hospital owners, based in Dallas, Texas, made quite an extraordinary effort to airlift the remaining patients and the staff from the hospital, and, in fact, they did that successfully.

The owners of the hospital claimed that they made a final sweep and no one was left alive -- only the bodies that had been wrapped and given final prayers and left in the chapel when they left.

TERENCE SMITH: And there's no evidence to the contrary, that any live patients were abandoned?

DOUGLAS STRUCK: There is no evidence to the contrary. I think the question is not so much whether live patients were abandoned. The question is whether or not this facility should have been evacuated earlier, either by authorities or by the owners of the hospital and whether or not the hospital was adequately equipped to sustain itself under a catastrophe of this magnitude.

Now the hospital officials say, look, we never expected anything of this size. And we would have expected help from local authorities if we had to evacuate. Neither of that were true - and the catastrophe just overwhelmed the... their ability to continue to provide care.

They say that no patients died because there wasn't enough care, but it is clear that patients died because conditions inside the hospital became so extreme and so difficult.

TERENCE SMITH: And was the situation there much worse than other hospitals in New Orleans?

DOUGLAS STRUCK: Well, unfortunately, a lot of the hospitals had very desperate conditions. And that itself is a bit of a scandal. You had lights that were out... in this hospital particularly, you had, because the lights were out, you had darkened corridors.

Hundreds of people had come there seeking shelter so you had people roaming around the corridors. And security quickly became an issue. There were stories of assaults inside the hospital. There was looting going on outside the hospital. Unfortunately this scene was repeated in some other hospitals in New Orleans so they're not the only ones.

TERENCE SMITH: Is it possible then that there are more bodies in other hospitals that will still be found?

DOUGLAS STRUCK: I think it's possible. All of the hospitals as far as we know have been at least peripherally checked. If they were in water they have been checked by Guardsmen or police in boats. But of course that's not a very thorough check.

These bodies having been discovered or having been recovered two weeks after the storm are suggestion that maybe as the floodwaters continue to recede in New Orleans, there might be more grim discoveries.

TERENCE SMITH: All right. Douglas Struck of the Washington Post, thank you very much.

DOUGLAS STRUCK: My pleasure.

JIM LEHRER: Late today the owners of a flooded nursing home in New Orleans were charged with 34 counts of negligent homicide with the deaths of elderly patients there.

FOCUS - CHARITIES AND CHEATS

JIM LEHRER: And now Jeffrey Brown has our story on charities and concerns over new scams.

JEFFREY BROWN: Americans have responded to the devastation of Katrina with a huge outpouring of charitable giving, currently at a record pace.

Donations are nearing $800 million. That compares with about $550 million given in the first two weeks after 9/11, and $400 million raised by American groups in the first weeks after last year's tsunami. The largest chunk of money by far has gone to the American Red Cross: $584 million. And more than half of that was given over the Internet.

But the government is also warning of a rise in illegal scams designed to grab some of those dollars. Today Justice Department officials announced a new task force to take on fraud.

ALICE S. FISHER, Asst. Attorney General for Criminal Division: The types of fraud that the task force will address will be wide ranging but share a common denominator. We will work to bring to justice those who would seek to re-victimize the people of Louisiana, Alabama, Mississippi, and other affected areas by fraudulently diverting or siphoning the flow of relief dollars.

This is a time to focus on the needs of the many, many victims. Those who detract from that critical effort for opportunistic reasons will answer to the Department of Justice and our law enforcement partners. The work of the task force will include by way of example four areas of fraud: Charity fraud, identity theft, procurement fraud and insurance fraud.

JEFFREY BROWN: And for more on all of this, we're joined by Trent Stamp, executive director of Charity Navigator, an independent charity evaluator; and Stacy Palmer, editor of the Chronicle of Philanthropy, a biweekly newspaper covering the nonprofit world.

Mr. Stamp, let's start with today's news about these scams. How much of it are you seeing and what forms does it take?

TRENT STAMP: We're seeing way too much of it, Jeff. This disaster has shown us the power of the Internet in the fact that over half of the donations that have come in so far have come in over the Internet which is wonderful. It's remarkable. People can act quicker and people can give money who may not have given before because they were embarrassed to call up and give $5, $10.

We've also seen the worst of humanity in that we're seeing tons of on-line Internet scams. We're seeing people who are sending emails, the spamming, the fishing, who are trying to steal if not your cash, your identity. And we're also seeing tons of these phony web sites that look professional but on the back end are simply scams.

The FBI, which is not a particularly liberal organization, is estimating that right now there are around 2500 bogus web sites designed to fleece people who want to help the victims of this particular disaster.

JEFFREY BROWN: So, Stacey Palmer, what are you telling people? How do they protect themselves?

STACY PALMER: They have to be very careful and be sure they know where they're giving and watch out. I think people should still give online but it's very important that you check and be sure that you're giving to the right organization. There are a lot of organizations that look like the Red Cross but aren't the Red Cross, for example. So you have to watch what you're doing. If you're uncomfortable at all, if anything looks weird, you should make a phone call and not give online if you're not comfortable.

JEFFREY BROWN: Does the government, Miss Palmer, have experience with shutting down some of these web sites? How hard would that be to do?

STACY PALMER: It's very hard to do it very well because they keep cropping up again in part because some of them are in other parts of the world. They're not in the United States. So the government doesn't always have jurisdiction; that's why this is such a very difficult thing to stop.

JEFFREY BROWN: Now, Mr. Stamp, moving to all the money that is flowing to more traditional charitable organizations, $800 million is a lot of money. Is there a way to know how much of it is getting to the places it should go? Can people track where their money goes?

TRENT STAMP: Well, self-servingly, Jeff, yes. They can check it at our web site at Charity Navigator.org. But we're just a private watchdog. The nonprofit accounting standards in this country are woefully behind what they are for the for profit industry. The best thing that you can do is find a charity that you trust on the front end.

Find a charity with good leadership. Find a charity that has good finances, good auditors, good accountants, good board who is corporate and is going to keep them in line. And then make a gift because chasing the money after the fact is, you know, it's almost impossible to do. That's why we're telling people to stick with the name brand charities, the reputable groups, be proactive in your giving; don't give to anybody who calls you on the telephone.

Don't give to anybody who sends you an email. Don't give to the bucket at your local convenience store. Go proactive in your gift, seek out a reputable charity; research them. The stakes are way too high this time to screw around.

JEFFREY BROWN: Ms. Palmer, if someone sees something on television, sees a particular person or a particular town and they really want to target their money to a specific person or place, how doable is that nowadays?

STACY PALMER: That's a very challenging thing to do. But if you call your local United Way or Community Foundation, the Red Cross, other organizations and explain that that's what you want to do, they can help you figure out how you get the closest to doing that.

A lot of religious groups are also doing work so there are ways to get to local congregations so you can often work through the religious organization in your own town and find a way to get to wherever you want to help.

But it's easier if you give to some very generalizable thing rather than that one person because there are so many people who are in need and not all of them appear on television. So I think it would be best to give to a more general kind of cause.

JEFFREY BROWN: And, Ms. Palmer, when a person -- for example, in the newspapers I read there are lists of organizations that are accepting money. What criteria do you suggest that people use for deciding who to give the money to?

STACY PALMER: Trent has outlined a lot of the things about financial accountability but one of the other important things is what is it that you as a donor care about? Do you want to make sure that people get housing or get food or that the animals are taken care of?

There are lots of charities that specialize in doing those kinds of things if you care about housing, Habitat for Humanity. Food banks are working to get food to the needy. So think about what it is that you are most worried about and what kind of help you would most like to give and look at it that way.

And then analyze and ask some hard questions before you make a gift. Just because there are names in the newspaper doesn't mean they're legitimate. The newspapers haven't checked that out either.

JEFFREY BROWN: Mr. Stamp, we have heard a lot over the last few years about people asking for more accountability in these charitable organizations. What have they done to address that and are we seeing that in the instance of the Katrina effort?

TRENT STAMP: We're seeing a decent movement from some of your more larger charities. The Red Cross has gone to what they're calling, you know, for lack of a better word kind of a pay-as-you-go disaster relief system where they only raise funds for that particular disaster. We're seeing charities that are going ahead and telling people to designate their gift to ensure that it doesn't get spent on anything else in the future.

Good charities once again are welcoming these questions. They have lists of what they need your money for. They have lists of how they're going to spend your money. And they have some verifiable data on the back end. We're well past the day when good charities are relying on a benevolent sounding name and some tragic photographs.

Good charities will tell you about accountability, transparency, results. And bad charities, those that don't deserve your dollars will try trot out sad-looking pictures and a sad name and tell you that they're going to help and not offer anything more than that.

There really is a strong dynamic, a strong dichotomy between those charities that deserve your dollars and those charities that are trying to fleece you.

JEFFREY BROWN: And, Ms. Palmer, we're still in early days here but what happens over the longer term, in terms of the needs that will continue, in terms of the need to raise more money?

STACY PALMER: That's the very big question. While Americans have been very generous so far, are they really going to be able to provide enough money to take care of all of these victims that are sprinkled throughout the country?

And they're going to need help for a long time. They need jobs. They need housing. They need to readjust. They're going to need mental health counseling for many years to come after the kinds of traumas they've all seen.

Andso we'll need to continue to give to them through many local charities. We'll make sure that people are being taken care of. But I think this is something that Americans are going to be called on for quite a long time.

JEFFREY BROWN: All right. Stacy Palmer and Trent Stamp, thank you both very much.

STACY PALMER: Thank you.

TRENT STAMP: A pleasure. Thank you.

RECAP

JIM LEHRER: Again, the other major developments of this day: John Roberts faced his first day of questioning at his confirmation hearing to be Chief Justice of the United States. The hurricane death toll rose above 420 in Louisiana. And the owners of a nursing home outside New Orleans were charged in deaths of 34 patients in the flooding.

There's a Washington Week special on the Roberts hearings with Gwen Ifill later tonight. We'll see you online at 9:30 tomorrow morning on most PBS stations with the Roberts hearings, day three, and again here tomorrow evening.

For now, I'm Jim Lehrer. Thank you, and good night.