The MacNeil/Lehrer NewsHour

Intro

JIM LEHRER: Good evening. Leading the news this Thursday, there is a report of a third death in the Soviet nuclear accident. The Soviets admitted a fire is still smoldering at the damaged plant. U.S.-Soviet arms talks reopened in Geneva. And NASA officials got a congressional drilling over quality control. We will have the details in our news summary in a moment. Robin?

ROBERT MacNEIL: After the news summary, Moscow correspondent Donald Kimelman of The Philadelphia Inquirer updates us on the Chernobyl nuclear story. Presidential advisor Edward Rowny and former arms negotiator Jack Mendelsohn discuss the Chernobyl effect on the stalled Geneva arms talks. Two senators air some of the heat stirred up by President Reagan's nominees for federal judgeships. Finally, an exclusive interview with Supreme Court Justice William Brennan.News Summary

LEHRER: A re is still smoldering at the damaged Soviet nuclear plant in the Ukraine. There had been unofficial reports of it, but today the Soviet newspaper Izvestia confirmed it officially for the first time. It said thousands of workers were trying to put it out. In Los Angeles, industrialist Armand Hammer said U.S. and Soviet surgeons have done bone marrow transplant operations on 10 victims of the disaster. Twenty-three others are planned, he said. The Yugoslav news agency also reported a third Soviet citizen had died from injuries suffered in the accident 12 days ago. Tonight, Soviet television showed pictures of people amid the flowers of spring going about their usual business. The government said radiation levels in the area were still going down. The TV report then showed cars being checked for radiation along a road near the Chernobyl plant. There was also an interview with the head of the U.N. International Atomic Energy Agency, who flew over the plant.

HANS BLIX, director, IAEA: Well, we have seen the sight from the air, and we have seen that a little smoke is still coming up from the damaged part. We have also seen that there is a lot of activity to contain the reactor.

LEHRER: There were also reactor-accident developments on food. The European Common Market banned the import of fresh meat and live animals from Eastern Europe out of fear of radiation contamination. Canada took similar action against fresh produce from all of Europe after radioactivity was found in a load of Italian vegetables. And a British official said the Soviet Union has approached the Common Market about buying substantial quantities of surplus food, including grain, beef, butter and skimmed milk powder. He said it was definitely as a result of the reactor accident. Robin?

MacNEIL: The U.S. and the Soviet Union resumed their arms negotiations in Geneva after a recess of nine weeks. All three principal topics -- medium-range nuclear missiles, long-range missiles and space technology -- were on the agenda again. When the two negotiating teams met at the Soviet embassy in Geneva, there was the usual display of cordial handshakes, but there was nothing to indicate either side had moved from its established positions. The Soviet negotiator said it was now up to the United States to make some new proposals, and that none were required from the Soviet side. The Soviets also rejected President Reagan's suggestion that the Ukraine nuclear accident underscored the need for verification of arms control agreements. The Soviets said the two subjects were not connected.

LEHRER: Secretary of State Shultz delivered some bad news today to the new Aquino government of the Philippines. He said in Manila the U.S. cannot increase the amount of aid to the financially troubled nation. He said U.S. federal budget cutting made it impossible to go beyond the $200 million aid package announced last month. He said the new government's top priority should be to get its economy rearranged. Shultz was to visit president Corazon Aquino and supporters of ousted President Ferdinand Marcos while in the Philippines.

MacNEIL: Allegations of a Syrian connection in the attempted bombing of an El Al plane in London were heatedly denied today by the Syrian embassy there. The story has been building for days as the British press their investigation. Today the Syrian ambassador charged that it was all a smear campaign intended to justify American and Israeli military action against Syria.

In Genoa, an Italian appeals court reduced the sentences on two of the hijackers of the cruise liner Achille Lauro. Two of the gunmen had arms possession sentences reduced from nine years to seven, and eight years to six and a half years, respectively. An accomplice had two years cut from a seven-year sentence and a 17-year-old member of the group was ordered retried in a juvenile court.

LEHRER: NASA cutbacks in quality control were challenged today at a Senate hearing. Senator Albert Gore led the charge against the space agency's administrator for space flight Richard Truly. Gore said there had been a 71 reduction in the number of NASA quality control employees since 1970.

Sen. ALBERT GORE, (D) Tennessee: Some have said that NASA is simply having an extraordinary run of bad luck. I wish I could believe that explanation. It is far too early to pinpoint the cause of these failures, but I believe the evidenceis now beginning to point overwhelmingly toward a serious breakdown in quality assurance. Over the past 15 years since Apollo landed on the moon, NASA's quality assurance program has not only been eroded, but in some cases it has virtually disappeared.

LEHRER: In response, administrator Truly said he did not know about reductions in quality control staff, but he said it may have been one factor in the recent chain of accidents.

MacNEIL: The Pentagon acknowledged formally today for the first time that some damage to civilian areas in Libya was caused by American bombs. In a written assessment of the raids, the Defense Department said three errant bombs from an F-111 had probably fallen near the French embassy in Tripoli. The report said two other bombs missed targets in the city of Benghazi, and added, "Any other damage claimed by the Libyans, if actually true, most likely resulted from Libyan ordnance falling back to earth."

That's our news summary. Coming up, focus sections on the ongoing Chernobyl disaster, how it affects the Geneva arms talks, the fuss over Reagan judicial appointments, and a talk with Supreme Court Justice William Brennan. Chernobyl Report

LEHRER: We update the Soviet nuclear accident story first tonight. The news continues to trickle in every day. Today's developments included a report of a third death, the confirmation of a fire still burning at the damaged reactor, and stories of trains bringing fearful people from Kiev to Moscow. Our update is from Donald Kimelman, Moscow correspondent for The Philadelphia Inquirer, with whom I spoke a short while ago. I asked first about the fire.

DONALD KIMELMAN: Well, what was actually said -- now, this is a meeting in Kiev between the first group of correspondents that was allowed to come down there at the invitation at the Foreign Ministry and the premier of the Soviet Ukraine -- and what he said is that the fire, the burning, as he put it, is practically ended. In other words, trying to reassure rather than to alarm.

LEHRER: I see. And the correspondents who went to Kiev on this trip, what else did they have to report about the situation there?

Mr. KIMELMAN: Well, so far we've just seen preliminary reports. I think they were closely supervised. They were driven through town in a bus and could describe that everything there seemed normal and calm, and people were fishing in the rivers and walking in the streets. And that doesn't conflict with anything that we've been led to believe about Kiev. It's a big city, and it's going on as normal. We just have a lot of people that feel a little nervous that are trying to get away for a while.

LEHRER: Yeah. Either from the minister there in Kiev or on the television tonight or in the newspaper, is there anything else new of significance that has come out today?

Mr. KIMELMAN: I think, you know, the most significant thing was their first acknowledgment that there is this problem of the fire and the reactor core, and saying -- giving actually a temperature of 300 degrees Centigrade, 572 Fahrenheit. I guess you'll have to put that to your experts there and see how hot that is and how much danger it seems to suggest. Also we have Hans Blix from the International Atomic Energy Agency. He's a Swede in this Vienna-based group who's been invited by the Soviets to come and to hear their side of it, essentially to reassure people in the West that things aren't as bad as they've said it's been. And he was given a helicopter tour of the site today. A very kind of dramatic film on Soviet television shows him landing, getting out of the helicopter in his green overalls with a white handkerchief on his head, and saying that he saw a little smoke coming out but they seemed to be working pretty hard at keeping things contained.

LEHRER: Was there any report in the Soviet Union today about a third person having died? The wires are carrying a report quoting the Yugoslav news agency to that effect.

Mr. KIMELMAN: No, there's been nothing said here on that.

LEHRER: Okay. You mentioned the people coming from Kiev on vacation or whatever. Many of them are coming to Moscow. What do you know about that?

Mr. KIMELMAN: Well, I was down at the Kiev railroad station this morning to watch a couple of trains come in, and sure enough they're full of young families with children taking a very unseasonable holiday. And of course, the Soviets are so secretive just by nature that if I spoke to 15 people, 13 of them said that this was a normal planned vacation, nothing unusual about it at all, although a couple of people acknowledged that they made this decision at the last minute just for the sake of the children, to get women and children out of the city for a few weeks, kind of let things go as they may. I think what got people nervous were warnings from their own health officials telling them to wash their apartments several times a day, to avoid spending too much time outdoors, not to swim in the reservoirs -- things that made it clear that there is some radioactivity down there.

LEHRER: Is there any question in your mind that that's why they're leaving?

Mr. KIMELMAN: There's no question in my mind.

LEHRER: Yeah. Did the Soviet authorities mind your interviewing these people at the Moscow train station?

Mr. KIMELMAN: Well, also there was a heavy KGB presence at the station, which you normally don't see, as well as some uniformed police. And eventually I was stopped by a policeman who then called over a KGB man, obviously senior to him; they looked at my credentials, saw that I was a reporter, and then asked me, not very politely, to leave.

LEHRER: Do you have any options, when so invited, to leave something like that?

Mr. KIMELMAN: Well, I explained that I had a right to be there. But as I had finished my interviewing, I wasn't going to get into a fight with them. And they were -- when they started to take my arm it was time to go. Round Five

MacNEIL: Soviet secretiveness over the Chernobyl disaster has become an issue in the strategic arms talks, which resumed today in Geneva after a:UG,D important that any arms agreement come with iron-clad guarantees on verification. That line of reasoning reinforces the belief of critics that the administration is not pursuing arms control agreements with any real enthusiasm. And we focus next on that argument. We talk first with Jack Mendelsohn, a retired career foreign service officer and arms control negotiator, who is now deputy director of the Arms Control Association in Washington. He joins us from a studio in Chicago.

Mr. Mendelsohn, what do you make of the link the administration is making between Chernobyl and Geneva?

JACK MENDELSOHN: Well, I think it's not a very strong link. There's nobody, either advocates or critics of arms control, who've argued that we need to trust or should trust the Soviet Union. As a matter of fact, we have in the past and will in the future design agreements that can be verified independently. Trust is not a factor in designing or implementing arms control agreements. No one who knew, or knows anything about Soviet behavior was in the least, I think, surprised by what happened.

MacNEIL: But lots of administration officials, including Mr. Reagan himself today, have said this underlines, underscores, emphasizes, makes more imperative the need for verification. What do you make of that recent rhetoric?

Mr. MENDELSOHN: Well, I think there's a strong effort to find reasons why we are not making progress in the arms control negotiations with the Soviet Union. And again, I guess I can only come back to what I said earlier: trust was not a basis on which we have designed or intend to carry out an arms control agreement. I would submit that there are some interesting lessons from Chernobyl that do impact on arms control, and one of them might be the fact that modern technology, when it fails, it fails catastrophically, and it often fails for a minor reason, and it may fail in a nonhostile environment. I would say that those three points have some significance for the administration's Strategic Defense Initiative, for Star Wars, which will be modern technology that will be deployed in a hostile environment. And I think there's a second point as well, and that is, I nd it quite interesting, if not amazing, how much information has come available on the Chernobyl incident. We've had Swedish radiation reports; we've had French satellite reports; we've had U.S. satellite reports; we've had communications. As the President pointed out in the Libya affair, we listen very closely to communications; we undoubtedly have followed phone conversations or messages.

MacNEIL: You're saying that shows that the West has lots of verification means. Is that what you --

Mr. MENDELSOHN: That's right. I would argue that we have excellent means. We should maintain and improve these means, but I think that people should be aware, as I believe they are, that we have gotten a lot of information from a non-cooperative -- or in a non-cooperative situation.

MacNEIL: Mr. Mendelsohn, you said the administration has been looking for ways to explain the lack of progress. How do you explain the lack of progress? Whose fault is it?

Mr. MENDELSOHN: I think there are a couple of fairly fundamental obstacles to what's going on in arms control, and one major one is, as I referred to earlier, the Strategic Defense Initiative. I think that it is the height of folly to believe that the Soviet Union will agree to reduce its offensive weapons on the one hand while we, the United States, is preparing to develop and deploy defensive weapons that are supposed to counter or negate their deterrent. I just think that's not going to happen, and until we, the United States, is prepared in some way to talk about how the Strategic Defense Initiative can be controlled -- until we're prepared to do that, there is not going to be any progress in the strategic sector. And in the intermediate-range sector, as long as we insist that the Soviet Union eliminate all of its intermediate-range systems while not prepared -- while we're not prepared to consider how third-country weapon systems might be controlled or how they might in some way be moderated, until we make some kind of move there, I don't think there's any chance in the intermediate-range systems either.

MacNEIL: So in a word, you're saying the ball is in Washington's court?

Mr. MENDELSOHN: I would say there's good grounds for pessimism.

MacNEIL: Okay. Thank you. Jim?

LEHRER: We get the administration's view of it now from Ambassador Edward Rowny. He headed the Reagan administration's first strategic arms delegation and is now an advisor on arms control.

Do you share Mr. Mendelsohn's pessimism?

EDWARD ROWNY: Well,I at this point am neither optimistic nor pessimistic, Jim; I just hope that finally the Soviets will respond to our concrete proposals and begin negotiating seriously. But the ball is in their court. They are not negotiating seriously.

LEHRER: What about the points that he made, though, that the obstacles are -- you heard what he said, I won't repeat them. But he listed his obstacles; what do you see as the obstacles?

Amb. ROWNY: Well, the main obstacle is that the Soviets have been putting forth general proposals, and one general proposal after another, without going into specifics, and have been doing this publicly. We're in favor of quiet diplomacy. We have put forth specifics and said, "Look, there was an agreement November 21st between Gorbachev and Reagan to reduce strategic arms by 50 in the appropriate manner. Let's get on with it." We've put down some specific ways of doing this. The Soviets have given back generalities and have not responded in any specific way, but simply stalled at the negotiating table.

LEHRER: Well, how do you read that? What are they doing?

Amb. ROWNY: Well, they're public -- posturing publicly, either waiting for time to be more propitious for them, or hoping that we'll concede -- you know, the usual Soviet tactics of trying to play on Western impatience while they're infinitely patient.

LEHRER: How do you read the relationship, if any, between the reactor accident and these arms control talks?

Amb. ROWNY: Well, Jim, we do regret that anyone may have been hurt from this accident. Beyond that, anything of this nature that happens is in the background of whatever negotiations take place between the Soviet Union and the United States, but it is not a matter of negotiations in Geneva, in this particular arms control negotiation. That's aside from this particular negotiation.

LEHRER: But what about those within the administration who have said essentially, "Hey, see, you can't trust the Soviets; they don't give out information and better verification is necessary"? Do you share that view?

Amb. ROWNY: I share the view that those who have dealt with the Soviets -- and I have over a number of years, as you know -- know that this is a very secretive society, and they do not give much information. We want more information, and we want timely information. It's not enough to hear several days after something has happened; we want information of a timely nature that may affect other people. Verification is very important, and in order to get verification you need agreements, and to get agreements you have to begin negotiating seriously.

LEHRER: And you're saying that all -- this is the fifth time now in this particular round that these conversations have been going on now, and that the Soviets have not negotiated seriously up 'til now?

Amb. ROWNY: I'm saying that since November there's been one round, the fourth round. They have stalled up until that time. We were hoping that with this agreement between the two heads of state that they would seriously get down to particulars. So we put down some concrete proposals to back up this generalization that the two leaders had that we should reduce our arms by 50 . They have not responded to that. They have said, in effect, "We can't do that because of your Strategic Defense Initiative."

LEHRER: And you reject that, that argument -- and Mr. Mendelsohn also made the point -- that there will never be an agreement as long as there's not an agreement on the part of the United States to seriously discuss SDI?

Amb. ROWNY: That's not their proposal. Their proposal is that we should ban all research. Now, the ABM treaty permits research. The Soviets are doing research; we do research. Gromyko agreed with Shultz that research cannot be verified. It's an impossible demand to meet. When you reach that kind of a demand, you can't begin negotiating on something down the line.

LEHRER: And that feeds your belief that they're not -- they haven't been serious up 'til now?

Amb. ROWNY: No, they have not been serious. Now they've made a few interesting moves towards our position on the medium-range systems. And there we would like to close the gap and say, "Well, what are you talking about?" They have neither taken our proposal, nor have they explained theirs. So again we've been at an impasse.

LEHRER: All right. Thank you, Mr. Ambassador. Robin?

MacNEIL: Back to you, Mr. Mendelsohn. What do you say to that point, that the Soviets have just been posturing with generalized public statements and not responding to American specifics?

Mr. MENDELSOHN: I think the Soviets have an enormous problem, as was just stated, with the SDI position of the United States. Now, the United States, as they see it, the United States is threatening to abandon the ABM treaty. The United States has put forward --

MacNEIL: The anti-ballistic missile treaty.

Mr. MENDELSOHN: Right, the anti-ballistic missile treaty. The United States has reinterpreted, has reopened a treaty which everyone thought they understood for the past 13 years, and suddenly the United States claims it means something else. Of course the Soviet Union is a little bit reticent to get into a negotiation when they see what they thought they understood being totally sort of unraveled. Again, and I think it was admitted just a moment, that they have said, "SDI needs to be constrained. And we would like to talk about, or if not talk about, how does this fit into the anti-ballistic missile treaty that we all thought we understood?" The administration has got a very, very general position that SDI will go forward and we will talk about cooperatively transitioning to a new strategic environment.

MacNEIL: Are you saying, Mr. Mendelsohn, that the Reagan administration is deliberately being deaf to possibilities of negotiation and dialogue on SDI with the Russians?

Mr. MENDELSOHN: I think the administration has said time and time again that they do not intend to negotiate, bargain away or deal on SDI. And as long as they continue to say that and actually carry that out in practice, we are going to be stalemated.

MacNEIL: Mr. Rowny?

Amb. ROWNY: Well, I must say that that's not the way I hear it and not the way I see it. The Soviets may say one thing publicly, but privately they have said we cannot talk about strategic arms reductions until you ban your research on SDI. You cannot ban research. It is not correct that we're trying to abandon the ABM treaty. We're complying with the ABM treaty; as a matter of fact, the Soviets were violating the treaty at Krasnoyarsk(?). So I think we have to keep the record straight of what is being said in public and what is really happening at the negotiating table.

MacNEIL: Mr. Mendelsohn, do you think the Soviets really want an agreement, that they are serious?

Mr. MENDELSOHN: I think they're quite serious about wanting an agreement. They have intense pressures to modernize their economy. They have a view that large numbers of nuclear weapons have very, very little military utility; they have great political utility for them. I think they also are not anxious to enter into another cycle of both technological and armament development. I think they'd like to get out from under that if they could. But let me make one thing clear. Anybody who's dealt with the Soviet Union and who knows the Soviet Union would have to say they will not abandon that challenge or that race if they feel they need to protect their national security. They'd like out, but not at any price.

MacNEIL: Mr. Rowny, is it the belief of the American delegation up to now that the Soviets don't want an agreement?

Amb. ROWNY: No, I don't think that that's the belief. I think what they're saying is that for reasons best known to the Soviets, they are not negotiating seriously. They have this huge advantage over us, for example, a three-to-one advantage in ICBM warheads, and they're continuing to add to that. We're showing considerable restraint; they're not. We will not say one way or the other; we don't know, they know whether or not they want an agreement down the line. What we're saying is, we have been specific; we have asked that they either give us their proposals in detail or ask us questions about ours. They have not been specific; they have not engaged; us in any meaningful dialogue at the negotiating table, where the negotiations should really take place.

MacNEIL: How do you answer that, Mr. Mendelsohn?

Mr. MENDELSOHN: If you were to ask anyone in the administration what they mean by "a cooperative transition" to a defense-dominated environment, to an SDI environment, you will not get two sentences of response. Nobody knows --

MacNEIL: Let's ask Mr. Rowny.

Amb. ROWNY: We have said that the idea of defense and offense in the proper balance can well be more stabilizing. And we've said to the Soviets, "Look, you have put so much more effort into dee transition to a more stable environment. Is it logical to deter another person simply by putting a pistol at his head if he has a pistol at your head, or shouldn't you try to stop these missiles if they're in fact stoppable?" We don't know whether that research will pan out. But we're saying we cannot accept a unilateral ban on research of SDI when that is permitted under the ABM treaty and when the Soviets are doing research, and when that research could not be verified in any account.

MacNEIL: Well, gentlemen, we have to leave it there for now. Thank you both for joining us. Packing the Courts?

LEHRER: The Senate Judiciary Committee did something very unusual today. It failed to endorse a nominee for a federal judgeship. Instead it sent the nomination to the full Senate with no recommendation. The action was the first major fallout in an ongoing argument within the Senate and the legal community about the quality of Reagan administration judicial appointments. It's an argument over legal qualifications and political ideology. The nominee at issue today was an Indiana lawyer named Daniel Manion. He received the lowest passing rating from an American Bar Association judicial screening committee, and critics charged those legal reservations plus his arch-conservative political views made him unqualified to serve as a judge on a U.S. circuit court of appeals. Here's a taste of today's Senate Judiciary Committee argument about him.

Sen. JOSEPH BIDEN, (D) Delaware: Ideology is not beyond the bounds of our purview. If there were an ideological fascist or communist or someone well out of the mainstream of American politics -- I would argue a John Birch member, which he is not, would be outside the mainstream of American politics -- that you could under that circumstance consider ideology. But we don't even have to get to that. I just want the record to show that we should not accept the proposition, it should not go unchallenged, the proposition as stated by the chairman and others that under no circumstances is ideology ever a proper criterion.

Sen. STROM THURMOND, (R) South Carolina: Well, I think I'll have to correct you on that. I have not said that ideology should not be considered.

Sen. BIDEN: Oh, okay.

Sen. THURMOND: Any senator has the right to consider ideology or any other reason when he votes. Is there any other discussion by anybody?

Sen. DENNIS DeCONCINI, (D) Arizona: Mr. Chairman?

Sen. THURMOND: Senator DeConcini?

Sen. DeCONCINI: Mr. Chairman, ideology, as has been pointed out and discussed here, certainly is part of this decision process. That is not what has led me to vote against Mr. Manion. What has convinced me is that this man lacks the experience. I think he has been nominated to a position that he isn't qualified for, so I'm going to vote against Mr. Manion.

Sen. THURMOND: Now, on the question of experience, I want to say that heretofore we have approved people who have not had experience trying cases. Several have been approved for the circuit courts, not the district courts. And I just wanted to bring out that point.

LEHRER [voice-over]: Then Senator Thurmond used his power as chairman to try to get a committee vote on the issue of whether the nomination should be sent to the full Senate without a vote of either approval or disapproval on Mr. Manion himself.

Sen. THURMOND: Now the question here is whether we are going to submit this matter to the Senate. All in favor will vote aye, and all opposed will vote no.

Sen. BIDEN: Mr. Chairman, I don't understand the vote. A procedural question. Are we voting for or against Mr. Manion?

Sen. THURMOND: All in favor of submitting this matter to the Senate, as the Constitution requires, vote aye; all opposed, no. Please call the roll.

SENATOR: Mr. Chairman, I don't know what we're voting on. Are we --

Sen. THURMOND: Get quiet. I have ruled on it.

Sen. BIDEN: Mr. Chairman, what are we voting on? What is the vote?

OTHER SENATORS: What is the vote? Whta is the vote?

Sen. THURMOND: Whether you're going to submit it to the Senate or not. If you don't want to submit it you vote no. If you're in favor of submitting you vote aye.

Sen. PAUL SIMON: Parliamentary inquiry, Mr. Chairman. Is the motion that we vote favorably on Mr. Manion?

Sen. THURMOND: If you're in favor of Mr. Manion you will vote aye; if you're opposed to him you'll vote no. The Senate can't ever consider it until we get that done.

Sen. SIMON: The question is whether we report him out favorably.

Sen. BIDEN: Is that the motion you're making, Mr. Chairman?

Sen. SIMON: Is that the motion that you are making?

Sen. BIDEN: Are you motioning report out favorably or report out without recommendation, or what is your motion? That is the question.

Sen. THURMOND: All in favor of voting for Mr. Manion will vote aye or opposed will vote no. The Senate will finally make the decision when it gets there.

Sen. BIDEN: If it gets there.

LEHRER: The end result of it all today was that the Manion nomination will go to the full Senate, but not with the usual favorable recommendation. It is the first of 268 judicial nominations made by President Reagan not to get such a recommendation. But it is not the first to be challenged or criticized. A leading criticizer of Reagan judicial choices has been Judiciary Committee member Senator Paul Simon, Democrat of Illinois and one of those who spoke and voted against Manion today.

Senator, what is the message of today's vote on Manion?

Sen. PAUL SIMON: I think the message is that we clearly want quality nominees, we want excellence in the nominees. That is not what we had in Mr. Manion. I think the second message is that while ideology was secondary, it was part of it. We don't want people who are too far out in one extreme or another.

LEHRER: Now, what's wrong with that?

Sen. SIMON: Well, the law should not be a pendulum just swinging back and forth. If we go too far to the right under a Republican president, we're going to swing way over to the left under a Democratic president. That's not a desirable thing.

LEHRER: What was there about Mr. Manion's political ideology that was too far out of the pendulum, too far beyond where you wanted the pendulum to go?

Sen. SIMON: Well, his assertions that the establishment clause on church and state did not apply to the states; it was only a federal assumption. His praise of the John Birch Society. His praise of publications, two of them, that said the '54 Supreme Court decision on desegregation was not a good decision. I think they really go beyond -- they indicate something that is not in the mainstream of American political thought.

LEHRER: Now, about his legal qualifications. Why was he found to be unqualified legally?

Sen. SIMON: Well, the American Bar Association just barely passed him -- gave him a mixed qualifiedfinot qualified rating. The Chicago Council of Lawyers gave him an unqualified rating. The briefs that he submitted -- and I have to assume he submitted his best briefs -- were --

LEHRER: You mean these are briefs that he had written as a lawyer --

Sen. SIMON: That is correct.

LEHRER: -- he submitted to your committee just for perusal, is that right?

Sen. SIMON: As examples of his work. They clearly just did not measure up, either in terms of grammar and typographical errors, and in just the kind of basic logic that you expect from someone who's going to be on the next highest court of the land.

LEHRER: Now, is it your position, Senator, that the Manion nomination is typical of the kinds of nominations that have come from this administration?

Sen. SIMON: No. No, I'm not suggesting that, nor is anyone else. We are suggesting that we have a quality problem. So far, since I have been in the Senate now, the Reagan nominees, we have had 36 of those who have been nominated for the circuit court of appeals have received the very bottom rating from the American Bar Association, mixed qualifiedfinot qualified. Under President Carter it was 6 . There's a considerable gap here.

LEHRER: What about on the political ideology front? Is the Reagan administration submitting the names of very arch-conservative people that you feel are beyond the pale?

Sen. SIMON: More so. What you can measure precisely is the partisan side of it. The nominations have been more partisan than any president's since Woodrow Wilson.

LEHRER: Define partisan.

Sen. SIMON: In all Republicans. For example, Gerald Ford, 70 of his nominees were Republicans. We expect that. But a great many were not Republicans.

LEHRER: What's wrong with a Republican president nominating only Republicans?

Sen. SIMON: If they were all quality, I don't think there would be a problem. But when you combine the quality problem, the ideology problem, plus the partisanship, that says to us that we have some problems and we're doing something to the courts that's not healthy.

LEHRER: Senator, thank you. Robin?

MacNEIL: Also with us is a leading supporter of Reagan nominees in general and Daniel Manion in particular. He's Republican Senator Orrin Hatch of Utah, also a member of the Judiciary Committee.

Senator Hatch, we just heard Senator Simon say the message of today's vote was we want quality. What do you think the message was?

Sen. ORRIN HATCH: Well, I think if you look at the Reagan nominees, first of all, he's appointed about 30 of the federal court in his five years compared to about 40 for Carter in four years and 33 -- well, he's put 30 on in five years, Carter 40 in three years. And as I recall, John F. Kennedy had 33 in three years. So he's had less than either of the other two presidents that I've mentioned. But in addition I think he's finding more and more difficulty with whoever he puts up based upon the question of ideology rather than the question of competence. In the case of Manion -- well, let me correct another problem too that Senator Simon has brought up. With regard to being qualified, the vast majority of judgeship nominees are always listed as qualified. That is no inconsequential listing. Manion doesn't even belong to the American Bar Association, which gives these ratings, and yet they rated him qualified. Under the Reagan nominations compared to Carter, 8.1 of Reagan's nominations were exceptionally well qualified, 6 of Carter's. Well qualified, 44 of Reagan's, 49 of Carter's. Under qualified, 48 of Reagan's and 44 of Carter's.

MacNEIL: So you're saying there's basically no difference in the quality.

Sen. HATCH: Basically no difference. As a matter of fact, I think you'll find that the Reagan nominees are just as qualified, if not more qualified, than the Carter ones. But that really isn't the issue. What really happened to poor Mr. Manion is that when he was quite a bit younger his father was the dean of the Notre Dame Law School, and he and his father participated in radio show commentaries, and Mr. Manion at 20 years of age made a lot of statements that anybody who is of a more liberal persuasion and maybe even a more moderate persuasion would find fault with. Manion didn't even go to law school 'til about 10 years later. The Chicago attorneys' group that Senator Simon mentioned that did not like him, they found that he was a man of integrity, a man of ability, a man who would likely be fair on the bench, even in spite of his own ideological beliefs. And you know, after all, I think that's what we want in judges, people who are going to be fair, have integrity, and do what really should be done.

MacNEIL: On what grounds are you supporting, or were you supporting, Mr. Manion? That the President should have whom he likes, that he'd make a good judge, that -- or what?

Sen. HATCH: Well, first of all, I think that we ought to give some credit to the President, whoever he may be. I supported all except one of Carter's nominees. Or should I say I think almost all, but one who was rejected, and both Senator Leahy and I led the fight against the one, and he was the only one rejected in many of the last number of years. So I supported them basically because the President nominated them, but secondly, I wouldn't have supported them had they not been men of integrity, men of legal ability, and men and women who -- should I say men and women in each of these cases, because there were some wonderful women judges as well and there have been in this administration. I wouldn't have supported them had they not been qualified. And in this particular case Manion met all of those qualifications. Really what it comes down to is it's a battleground. The one legacy that President Reagan really is going to leave is going to be the federal judiciary because by the end of his eight years, if he is permitted to have his nominations come through the Senate -- and I suspect it'll be a battleground from here on in -- he will have appointed 50 of the total federal judiciary, and some of our more liberal colleagues are very upset about it.

MacNEIL: And is it your point that the committee is not giving him a fair hearing for his nominees because it is blinded by their ideological --

Sen. HATCH: Well, let me say this. I believe that Senator Simon is one of the best people on the committee. He has represented the Democrats in the confirmation hearing process, and I have to say that he's done a very good job, and I think a lot of him. But in this particular nomination it really has come down, in my opinion, to one thing pure and simple, and that is ideology, and they just don't like some of the things that Mr. Manion has said. Even though he has said that he will uphold the law, he believes in the Constitution, he will follow the Supreme Court and other decisions even if he disagrees with those decisions, and even though nobody has criticized him from an ethical or integrity or a real legal basis. If in fact he is not a great legal writer, as Senator Simon seems to think, I can tell you that there aren't many who go on the federal bench who are great legal writers when they get there. They become such afterwards through a refinement process. It'd be wonderful if he was, but he's not as bad as has been represented.

MacNEIL: Thank you. Jim?

LEHRER: Senator Simon, is that what's happening here, his point that this was a battleground over Reagan administration judicial appointees and you all are trying to stop this from happening, stop him from appointing 50 of them?

Sen. SIMON: With all due respect to my friend Orrin Hatch, that is not what is happening. We have -- just in the year and a half I've been in the Senate, we have approved 100 judges that have been nominated by the President; only two have we asked for roll calls on even. Clearly we want quality, and this is not represented in this particular nominee. As far as his willingness to uphold the Constitution, no nominees are going to say, "No, I'm not going to uphold the Constitution." Of course they're going to do that. And as far as his nom-membership in the ABA, it's kind of interesting -- why isn't he a member? I asked him that, and he said, "Well, they sponsor exchange programs with the Soviet Union," and so he's not a member of the American Bar Association. I think again it indicates an ideological tilt.

LEHRER: You don't see that as an ideological answer?

Sen. HATCH: Yes, I do. But on the other hand, I was pointing out the very fact that he was not a member of the American Bar Association, which has been pretty partisan in some of its recommendation through the years. For instance, some of the most brilliant people who have been appointed by Reagan have been given just qualified ratings where I've seen others who were not very brilliant appointed by other presidents who have been given exceptionally well-qualified ratings.

LEHRER: You mean it's a Democratic fix, the American --

Sen. HATCH: No, but I will say this. The mere fact that he did not belong to the Bar Association and they gave him a qualified rating, under all the circumstances, the criticism of the so-called Chicago group of lawyers, who also found him to be a man of integrity, a man of legal ability, a man who would be fair and responsible, you know, I think stands well in his favor.

LEHRER: Senator?

Sen. SIMON: Well, if the American Bar Association is partisan, it is partisan with a Republican tilt. He was found qualified and not qualified. In other words, they gave him a final qualified, but it was a mixed review -- the lowest possible rating from the American Bar Association without being found not qualified.

LEHRER: Let's go to the more general points that Senator Hatch --

Sen. HATCH: By the way, that happens once in a while with a lot of people. I mean, there is always some disagreement, but that doesn't mean he's not qualified.

LEHRER: Senator Hatch says that the nominees that have come through have had qualified or non-qualified kinds of ratings from the ABA; it's no different under Reagan than it has been under Carter and previous presidents.

Sen. SIMON: When you include district judges his figures may be correct.

Sen. HATCH: They are correct.

Sen. SIMON: But we're talking about circuit court of appeals judges, and there the differences are very real. And that's strictly up to the president. When you talk about district judges, that's generally done by the senators -- Orrin Hatch, for example, presented a fine nominee from Utah. This is the responsibility of the President, and the President, particularly under Ed Meese, has not been giving us quality appointments.

Sen. HATCH: Well, I differ with that. I think they've been exceptionally qualified people. The problem is that the President has -- really Ed Meese and the Justice Department have one basic test. There are no ideological litmus tests on their part, but the one test they do have is they are tired of judges who are unelected, appointed for life, making laws from the bench, which has been going on for decades now; they want judges who are interpreters of the law, those who are going to apply the law as it is written by those who have been elected to make the laws.

LEHRER: Does that bother you, Senator Simon?

Sen. SIMON: Well, what Ed Meese says bothers me. He says that he wants it interpreted as the original founding fathers intended.

Sen. HATCH: Not really, not really.

Sen. SIMON: And you know, the law has to be brought up to date.

LEHRER: What do you say to Senator Hatch's point that -- where do you draw the line as far as how much right the President has to name his judicial appointments without a lot of interference from the Senate?

Sen. SIMON: Very interesting. The founding fathers originally intended that the Senate should do it, and it was just at the last minute they had the president do it, and then it was with the advise and consent. We not only should consent; we should also advise. By and large we've been consenting a little too readily, I think. And I think this is a signal, we want to be brought in the process.

LEHRER: Are there other Manion cases coming up, Senator Simon, that you and others on the committee are going to challenge as vigorously as you've done this one?

Sen. SIMON: I think there is one, the nominee from Alabama, Jeff Sessions. I think that will again be a controversial nomination.

Sen. HATCH: Well, I think if we start determining these nominees based upon ideology, as they are doing in the Manion case -- and it's pure and simple; and there's a facade of all these other things, but that's what it comes down to -- if we start doing that, then we make the judicial branch of government politicized just like the other branches, and that would be a tragedy. I do believe that the President has an obligation to submit the best people he can.

Sen. SIMON: The reality is, we have been approving, and with some enthusiasm, people who are very conservative.

Sen. HATCH: Because they have been good.

Sen. SIMON: But they have been quality.

Sen. HATCH: They've been very good.

Sen. SIMON: Very high quality.

Sen. HATCH: And this man is too.

LEHRER: Thank you very much. William Brennan: View from the Bench

MacNEIL: Finally tonight, speaking of the judiciary, we have a rare inside look at the United States Supreme Court in an interview with its oldest and most experienced member, Justice William Brennan. This year marks Brennan's 30th year on the court, where he's known as its most consistently liberal member. He recently celebrated his 80th birthday, and agreed to talk with a reporter who frequently reports on the court for the NewsHour, Lyle Denniston of The Baltimore Sun.

LYLE DENNISTON, The Baltimore Sun: Justice Brennan, this is a hard job for a person who's 80 years old. Is this job too tough for you right now?

Justice WILLIAM BRENNAN: Definitely not, Lyle. I can assure you it is not. I feel no differently than I did 30 years ago.

Mr. DENNISTON: Well, does it bother you that we in the press are constantly asking about your age and about your health, or at least commenting on it in the newspapers and the magazines and on broadcasts?

Justice BRENNAN: I wouldn't say, Lyle, that it bothers me. That wouldn't be quite the right word. I think "irritates" is the more accurate one.

Mr. DENNISTON: And why is that? Is it none of our business that you're --

Justice BRENNAN: Oh, no, but I would suppose you need do no more than take advantage of the opportunities you have every -- almost daily, certainly when we're sitting on arguments, just to look us over, and I think you can tell. I recall one time when I was rather below par, when you spotted it. I recall you wrote an article about it. And mind, that's when you had me retiring 10 years ago, I think, Lyle, or so.

Mr. DENNISTON: Well, we always assume, as you know, that as soon as there is the first sign of illness, that the next conversation is going to be when will he or she retire?

Justice BRENNAN: I've had two illnesses that required hospitalization, which you covered fully at the time. But I'm over both of those, I'm happy to say.

Mr. DENNISTON: What can tell you us about your plans? Do you -- obviously you're going to finish this term, and will you be back in the fall?

Justice BRENNAN: I'll be back in the fall. Indeed, to the suggestion that maybe I'll retire, maybe I'll not be here, let me say quite emphatically, Lyle, I shall if the good Lord permits me to. I'm going to stay on until -- except that were I to feel myself I weren't up to carrying on; or if I wasn't, if my family or colleagues were to suggest I wasn't, and then I might have to give consideration to it. But neither seems a prospect at the moment, and so as of now I'm going to stay right here 'til the good Lord says I have to leave.

Mr. DENNISTON: Well, from your knowledge of the court's history you know that some justices have stayed too long.

Justice BRENNAN: Oh, yes, indeed.

Mr. DENNISTON: And in fact had to be somewhat discreetly invited not to stay.

Justice BRENNAN: It happened in two or three instances at least, I know.

Mr. DENNISTON: Well, how about your other colleagues? When Mr. Reagan came into office, we in the press were routinely speculating that there would be as many as four or five vacancies for Mr. Reagan to fill.

Justice BRENNAN: Well, I see no indication on the part of a single one of my colleagues of any intention of -- indeed prospect of retirement.

Mr. DENNISTON: We in the press like to speculate a lot about justices sitting up here and watching when the next election is coming up and then deciding whether they should retire before or after to give the president, this president or perhaps a future president, the right to fill a vacancy. Does that go on here?

Justice BRENNAN: That has gone on in the past, I know. I have seen no sign of anything like that among my colleagues, and certainly there's none on my part.

Mr. DENNISTON: Now and then it's suggested around this town that Justice O'Connor would like to be the vice president or the president of the United States. Have you ever heard her suggest that?

Justice BRENNAN: I have not. I have not.

Mr. DENNISTON: But she's quite an accomplished member of this court, isn't she?

Justice BRENNAN: Oh, a most accomplished member of this court. Well, you sit in on the arguments and you can see first-hand how beautifully prepared she is in every case. And she is similarly so at all our conferences, and on top of all of which, she's an absolutely delightful lady, wonderful colleague.

Mr. DENNISTON: Let me turn a little bit to the internal atmosphere here in the court. The public is out there and the press is downstairs, and you folks areUFates. What's it like working here with these other people? Is it very formal and stiff, or is it friendly?

Justice BRENNAN: It's most informal and most friendly. I have now sat with 20 of 102, I think it is, justices who have sat in the court in our history. And I can say without qualification that my personal relations with every one of them has been as cordial and informal and friendly, necessarily, working as closely as nine people have to work. It would be unfortunate if that were not true.

Mr. DENNISTON: Justice Brennan, there has been a debate -- perhaps it's not a debate -- an exchange of views publicly between you and Attorney General Meese about how the courts should interpret the Constitution. He wants to go back to the original understanding of the founders; you want to keep the document somewhat up to date by applying it to contemporary values.

Justice BRENNAN: Well, I ought to say first of all, you said a debate between me and the attorney general. That's not something either he or I originated. That's been with us since the day that the Constitution was written, and some very great scholars and jurists have debated it.

Mr. DENNISTON: Let me ask you in the First Amendment area, the free speech and free press area, do you have the sense that the majority of the court now is less sympathetic to free expression than the Warren court was?

Justice BRENNAN: Oh, no. No, no, no, not at all.

Mr. DENNISTON: We in the press, we feel very threatened by libel lawsuits.

Justice BRENNAN: Well, I understand that. I don't see any disposition presently to make any revisions in the principles that are applied in libel lawsuits.

Mr. DENNISTON: Well, I take it that another area that seems quite secure, the area left over from the Earl Warren years, is the racial equality. Do you see any sign that the court's weakening on that?

Justice BRENNAN: Oh, the court certainly is not weakening on that in the slightest, Lyle. I don't think, though, great as has been our progress in the area of race, by no means is the task finished. As a society, we still, I think, have a good way to go. But we're -- we've made very great strides, of course. And I can't -- no, I can't see a slightest sign that the court will ever change its approach to that problem.

Mr. DENNISTON: One of the groups in our society that doesn't yet have full equality, at least as a constitutional matter, are females, and this court has refused to extend the full protection of the Constitution to women. Do you think that's likely to change without a constitutional amendment?

Justice BRENNAN: Well, I regretted that the constitutional amendment failed -- very narrowly, I gather, but nevertheless it failed. I'd still like to see an effort made again by constitutional amendment to resolve the problem. But the court's gone rather far. I don't know that there are many areas left that we'll be called on to address. I'm sure there'll be some.

Mr. DENNISTON: I take it that the one area where we can anticipate any early change will be on the death penalty. The court has found the death penalty is constitutional; you have, of course, routinely and in every case dissented from that. Do you see any prospect that this court will change its mind for the death penalty?

Justice BRENNAN: Look at the occasions when it has changed its mind. Would you have anticipated Brown v. Board of Education overturning Plessey and Ferguson? There are many instances in which the wisdom of a later day has regarded dissents as expressing the desirable rule. Many of them in our history. And I rather hope that will be the case with the death penalty.

Mr. DENNISTON: Justice Brennan, you were in the majority probably more often in the first 20 years of your service here than you have been in the last 10 years of your service. Is it harder, more difficult, to be in the majority, trying to put together a court, or is it easier to be in dissent? You're responsible only for yourself.

Justice BRENNAN: Oh, I haven't stopped trying to put together a court in every case. But if I fail, and I do, then I state my views in dissent. The nice thing about the dissent is, you can roam anywhere you please. You know, you're not responsible for anyone except your own -- anyone's soul except your own. And that's nice. But no matter which, it's something I'll never, never tire of doing.

Mr. DENNISTON: Are you still as delighted with the discovery of new issues and as challenged by deciding them as you were in 1956?

Justice BRENNAN: Oh, more so, more so. You can't avoid it. It's a magnificent institution, Lyle, and a great, great privilege to be part of it.

MacNEIL: Supreme Court Justice William Brennan at 80. Good night, Jim.

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