The MacNeil/Lehrer NewsHour

MR. MacNeil: Good evening. Leading the news this Friday, Louisiana's governor vetoed a strong anti-abortion bill, the Gross National Product grew at a sluggish pace in the second quarter of the year. We'll have the details in our News Summary in a moment. Jim.

MR. LEHRER: After the News Summary, two key leaders [FOCUS - ABORTION AND THE LAW] in the national debate over abortion react to the Louisiana veto. Then with Nina Totenberg they explore what is known or suspected about Supreme Court nominee David Souter's abortion views. Next come David Gergen and Mark Shields [FOCUS - GERGEN & SHIELDS]. And we close [FINALLY - TREASURE HUNT] with a report about dividing up the treasure after the treasure hunt. NEWS SUMMARY

MR. MacNeil: Louisiana Gov. Buddy Roemer vetoed a strict anti- abortion bill today. It was the second time this month he had vetoed abortion legislation. The latest bill made exceptions in cases where the mother's life was in danger or in cases of rape or incest. But Roemer said the exception dealing with rape was unsatisfactory. He said it did not give victims enough time to decide whether or not to abort. Roemer spoke at a news conference in Baton Rouge.

GOV. BUDDY ROEMER, Louisiana: I consider myself pro life in the belief that abortion on demand and as a substitute for birth control must be in the name of the unborn sharply curtailed. I have, however, grown in the personal belief that common sense, common decency, and respect for women require that exceptions in an anti-abortion bill are required.

MR. MacNeil: State legislators said they will try to override the veto. The bill originally passed both Houses by more than a 2/3 majority. We'll have more on this story right after the News Summary. Jim.

MR. LEHRER: A story popped up today about Supreme Court nominee David Souter's pre-appointment interview at the White House. Sen. Warren Rudman said Souter laid down a condition before agreeing to the interview, insisting he not be questioned on specific issues such as abortion. Sen. Rudman, Republican of New Hampshire, is a friend of Souter's. This afternoon, Pres. Bush told reporters he gave no such assurance beforehand, but repeated his earlier statement that he did not ask any such questions. Mr. Bush also said today he believed Souter would come through the Senate confirmation process with flying colors. Hearings are scheduled to begin now September 13th.

MR. MacNeil: U.S. economic growth slowed in the 2nd quarter of this year. The Commerce Department reported the Gross National Product grew at an annual rate of 1.2 percent from April to June. It revised first quarter growth down from 1.9 to 1.7. Last year's growth was also revised downwards from 3 percent to 2.5. The Gross National Product measures the country's total output of goods and services. The head of the Federal Communications Commission, Alfred Sikes, said that Congress should not regulate price for cable television. He said increased competition between cable operators would be a better way to lower costs. Late yesterday, a House Committee authorized the FCC to set basic cable rates where it found them excessive.

MR. LEHRER: The OPEC ministers today agreed on a plan to increase oil prices. If it works, the price could go up by about 1/3. We have a report narrated by Roderick Pratt of Worldwide Television News.

MR. PRATT: The ministers emerged from their discussion with smiling faces.

MINISTER: Everyone signed the agreement. Everyone is happy with it too.

MR. PRATT: There had been several delays during the day as delegates haggled over prices. But at a news conference later, the OPEC president, Algerian minister Sadek Bousenna, gave the news everyone was waiting for.

SADEK BOUSENNA, OPEC: That the minimum reference price for the OPEC crude basket shall be $21 per barrel.

MR. PRATT: This result is bound to be seen as a victory for Iraqi president Sadam Hussein. He threatened military force against Kuwait for overproduction. He said by exceeding their limits, Kuwait and the United Arab Emerits had driven down the oil price and robbed Iraq's war torn economy of millions of dollars in revenue.

MR. LEHRER: The U.S. Senate voted against Iraq today on human rights grounds. It passed legislation that would end $1.2 billion worth of loan guarantees to Iraq. Iraq uses that money to buy American farm products and other U.S. goods. The vote was 80 to 16. The House has passed similar legislation. Pres. Bush has not said whether he will veto it.

MR. MacNeil: In the Soviet Union, the Republic of Byelorussia declared its sovereignty today. The parliament passed a decree saying their laws would take precedence over Soviet laws. Eight of the Soviet Union's fifteen republics have now declared sovereignty or some kind of independence from the central government in Moscow. Two more earthquake victims were found alive in the Philippines today. They'd been trapped under the rubble of a hotel since the earthquake 11 days ago. One was a cleaning woman at the hotel, the other a security guard. Both suffered cuts and bruises and were dehydrated, but doctors said they were in surprisingly good condition. The earthquake death toll is up to 1,653 and is expected to go higher.

MR. LEHRER: The Senate approved a farm bill today. It calls for no major changes in government support programs for farmers. It does contain new rules to protect the environment. The vote was 70 to 21. The House has not yet voted on its version of the bill.

MR. MacNeil: A mistrial was declared today in the case of Raymond Buckey. He was charged with molesting children at the McMartin Preschool in Los Angeles. A Superior Court judge declared the mistrial after the jury said it was hopelessly deadlocked on all eight counts. This was Buckey's second trial on the charges. That's it for the News Summary. Now it's on to the latest rounds in the fight over abortion, Gergen & Shields, and dividing up the treasure. FOCUS - ABORTION AND THE LAW

MR. MacNeil: The politics of abortion is first up tonight. We're going to look at Louisiana and the abortion debate surrounding the nomination of Judge David Souter to the Supreme Court. As we reported, Louisiana Gov. Buddy Roemer today vetoed what would have been the nation's toughest anti-abortion bill. That bill would have outlawed abortion except in cases of rape, incest, and when the mother's life was threatened. Roemer said the rape exception did not go far enough for rape victims. Here is his veto message.

GOV. BUDDY ROEMER, Louisiana: I consider myself pro-life in the belief that abortion on demand and as a substitute for birth control must be in the name of the unborn sharply curtailed. I have, however, grown in the personal belief that common sense, common decency, and respect for women require that exceptions in an anti-abortion bill are required. I clearly set forth these exceptions prior to and during legislative debate. They include life of the mother, rape and incest, to make a decision in incest with adequate time allowed for a woman brutalized and molested by rape and incest to make a determination on termination of a pregnancy that will add to the meaning of her life and not detract from it. I vetoed this bill because it does not meet even the minimum standards set forth by me long ago. Life of the mother is protected, thanks to my amendments to the original bill. The incest provisions are, as I desired, giving a first trimester period of personal decision. Rape, however, is treated unevenly and unsatisfactorily. For a crime this heinous I cannot understand why the same first trimester decision for incest couldn't be afforded rape victims. A seven day reporting period is totally unworkable and uncaring and unrealistic. To ignore simple rape as if it didn't exist is an insult to all women. The vulnerability of mentally retarded women under this bill is totally unacceptable. The fact that this bill does not provide necessary exceptions honoring the plight of illegally violated women is enough reason to veto the bill.Added to the substantive weaknesses of the bill is the truth that a bill this important was convected at the last minute without full scrutiny or open hearings, was enclosed in a non-germane flag burning bill, and was written to stand mute on the essential points of broadness, can or should the woman be prosecuted in an abortion case, and of vagueness, how will the doctor know whether the rape is forcible or simple, all these points cry out for a veto. This veto will not end the debate, nor should it. An issue this personal, this complex, demands the best. This bill is not the best.

MR. MacNeil: With us now are two leading activists. Kate Michelman is the executive director of the National Abortion Rights Action League. She joins us from New Hampshire. Dr. John Willke is the president of the National Right to Life Committee. Dr. Willke, what's your reaction to Gov. Roemer's veto?

DR. JOHN WILLKE, National Right To Life Committee: This bill was designed to save the lives of unborn babies in Louisiana. The first one was vetoed. Roemer said he wanted the rape and incest exceptions. They were put on. Now he's vetoed it again. We know that if you give a three month time for reporting that 50 percent or 100 percent of the abortions that are now going on will still be done, because women will merely have to claim rape. It is completely irrelevant what he's saying. Roemer is clearly pro- abortion. He's using pro-abortion propaganda terms like termination of pregnancy, calling us anti-abortion, a term that we don't like. And so it's clear that Roemer has joined the pro-abortion side. Now what's important here is this, four-fifths almost of both Houses in that state voted for this bill. For him to fly this directly in the face of clear public opinion in that state, I don't really understand it, I really don't.

MR. MacNeil: Okay. Ms. Michelman, what's your reaction to the veto?

KATE MICHELMAN, National Abortion Rights Action League: Well, as you can well imagine, we're very, very pleased that Gov. Roemer vetoed this extreme and dangerous legislation. First and foremost, he showed compassion for victims of rape and incest, although I think all women who face a crisis pregnancy, an unplanned pregnancy, should be shown compassion and sensitivity. But very importantly, this veto keeps this particular, just this particular, piece of dangerous, anti-choice legislation from working its way to the Supreme Court. And in an environment where we have the resignation of Justice Brennan, who was the guardian of the right to privacy, the protector of the right to choice, this veto feels much more important. But I will remind your viewers that since Webster, we have seen over 350 anti-choice bills introduced in some form or another in 41 state legislators, responding to the invitation of Webster. And this illustrates how important one governor, one legislature is to the right to choose for all American women. And given the Supreme Court situation we face now, I think our right to choose our right to privacy is hanging by a very fragile thread.

MR. MacNeil: Well, let's, we're going to come back to the Supreme Court situation in just a moment. Dr. Willke, from what you said about 4/5 of the legislature supporting this, do you expect this veto to be overridden, or a new piece of legislation to result?

DR. WILLKE: Well, I certainly imagine that the odds are excellent, that the legislators who voted for this are going to come back and vote for it again, and if so, it is going to be the wish of the majority of people of Louisiana through their elected legislators that they plain want to protect as many babies in Louisiana as they can. Incidentally, I'm offended at being called anti-choice. I'm pro-life. I'm for the life of the unborn child, and if somebody wants to make a choice to kill, yes, I will object to that, but I'd rather be called what I am, I'm pro-life the child.

MR. MacNeil: Ms. Michelman, do you think that there's a good chance of the veto being overridden?

MS. MICHELMAN: Well, I think there's a grave concern that this legislature will convene to override or at least attempt to override the governor's veto, but in 70 years in Louisiana, the legislature has not overridden the governor's veto. So I hope that that tradition holds firm and I appeal to the legislature to not override this veto. It will seriously endanger the life and well being of Louisiana women, and would be, as I said earlier, possibly along with Pennsylvania and Guam, which are cases now in the judicial pipeline, be a test case for the Supreme Court, which is certainly teetering on the brink of the overrule of the fundamental right to choose. What we're seeing in Louisiana is what we saw in Idaho, we saw an attempt in Minnesota, in Indiana, and other states to take away a woman's right to choose and to give to politicians the right to decide. And the question here is who decides. Is it politicians like Gov. Roemer, or is it women with their families, their doctors, their religious counselors, who make that decision. I think that's the critical question before us today.

MR. MacNeil: Okay. Let's now turn to the other broader issue here that deeply concerns our two activists, the abortion record or lack of record of Judge David Souter, Pres. Bush's nominee to the Supreme Court. We're joined now by Nina Totenberg, the legal affairs reporter for National Public Radio, who also is in Concord, New Hampshire, tonight. Nina, what do we know about Judge Souter's legal opinions concerning abortion?

NINA TOTENBERG, National Public Radio: Well, very little. The only abortion case that he's ruled on as a judge did not involve abortion directly. It involved a lawsuit against a doctor brought by a woman who had had German measles and who had given birth to a deformed child, and she claimed that the doctor should be liable for damages because he had not tested her for German measles and advised her of the possibilities for her unborn child and the possibilities also of having an abortion, and the state Supreme Court indeed held the doctor liable because the state court said a woman has a fundamental right to an abortion and that's what the U.S. Supreme Court has ruled. One has to say that the tone of the state Supreme Court's decision is, if anything, I would say mildly hostile to Roe Vs. Wade, but basically says, look, this is what the law of the land is, we've got to do it. The doctor knew that she had this fundamental right and he didn't tell her what her options were and he didn't tell her what might happen to this unborn child. In addition, Justice Souter, who concurred in the majority decision, wrote separately to say that a doctor who had scruples against performing an abortion, for example, didn't have to perform the abortion, but he had to advise his patient of her rights, essentially, and to give her the necessary information.

MR. MacNeil: Well, apart from specific rulings, of which there seems to be a great shortage in this area, his record gives clues to his thinking in the abortion debate.

MS. TOTENBERG: The only other thing, and it's very sparse, is a letter that he wrote some years ago on behalf of all the judges of the Superior Court on which he then sat in which he opposed parental consent legislation that was then before the New Hampshire House because it had a provision that would have given teen-agers the option if they didn't want to, or couldn't for some reason get tell their parents and get the consent of their parents for an abortion, they could then go to the courts, the Superior Court, for permission from the judge in the best interests of the minor to have an abortion, and he said judges should not be in this position of making moral choices for other people without clear standards and we don't like this provision and please don't enact it. Now you can read that glass as full or empty. You can read it as the thing that, in fact, prevented parental consent legislation from passing the legislature in New Hampshire, or you can read it to be that Judge Souter would allow a parental consent law in the last analysis to become law with no possibility for a teen-ager to have an abortion other than with her parents' consent. There's no way to read that.

MR. MacNeil: What do you know, what have you picked up in your reporting, about the manner in which he was nominated, and the debate surrounding that today about whether or not he was asked, he made a condition that he wouldn't be asked about abortion?

MS. TOTENBERG: Well, I've heard from the beginning that he said from the moment that he left New Hampshire I'm not going to answer specific questions. And fortunately for him, Pres. Bush didn't ask him any apparently. And in fact, I am told that the President deleted some questions from the list of questions that he was given by his aides before he met with Judge Souter, not particularly knowing that, but feeling himself that some questions were inappropriate. I think the most interesting thing I know about this selection process is that in some of the backroom dealings that went on over it. Apparently from the beginning, Judge Souter was a leading contender with the joint sponsorship, if we may say, of the White House Chief of Staff John Sununu, former Governor of New Hampshire, and Sen. Warren Rudman, his old friend, that is the nominee's old friend, and conservatives inside and outside the administration apparently felt immediately that Sununu and the President are not lawyers, that Souter may not have a rigid enough conservative agenda, that he may not be a bold enough conservative, and we, said these conservatives, would like someone else, but we'd better coalesce around one person, because we'll never beat a 500 pound gorilla, John Sununu, if we're just all over the place, and they coalesced around Judge Edith Jones because she's a woman, she's young, she's southern, and therefore would have all kinds of confirmation attractions, and in the end, she was the other final contender who was brought to Washington and interviewed by the President, but Judge Souter was chosen.

MR. MacNeil: That's interesting. Dr. Willke, is Souter a reassuring nominee for people who share your views of the abortion debate?

DR. WILLKE: Well, I think that we have to go back to Pres. Bush and I think to most of what I've been reading, and I don't know much more than you do on this I'm sure. Souter seems to be a judicial conservative, what we call a constitutional constructionist. The President has said that. He's said he's going to read this Constitution and he's going to look at the law and maybe Roe Vs. Wade, whatever it is, and say, is this in the Constitution, does it fit, and if it is, he'll rule for it, and if it isn't, he'll ruleagainst it. Bush said this is not the man to make law from the bench. Well, now basically that's satisfactory with us if that's true, because Roe Vs. Wade, the Supreme Court decision, was the most far out example of making raw law that has ever occurred in the history of the United States. It's not written in the Constitution, it's not in the history of the Constitution, and if this man follows the Constitution, he's bound to rule against Roe Vs. Wade we hope.

MR. MacNeil: Ms. Michelman, how do you view the nomination?

MS. MICHELMAN: Well, I think Nina has said very eloquently there is no record that we can point to officially that gives us an indication of how Judge Souter will approach the constitutional questions of privacy and the right to choose, and therefore, I believe it is absolutely incumbent upon the Senate Judiciary Committee to ask the questions the American public needs to know, has a right to know, whether Judge Souter openly recognizes the constitutional right to privacy, including the right to choose. You know, we're being asked by Pres. Reagan to put our lives in this man's hands. We have a right to know what he believes, what he thinks, and I think that there is a long tradition and a distinguished bipartisan history of asking questions about the very important issues of the day, and I think if Pres. Reagan has said, and it's true --

MR. MacNeil: You mean, Pres. Bush, don't you?

MS. MICHELMAN: I'm sorry. You're right. Pres. Bush. The legacy of appointing nominees with an anti-choice litmus test is so much in my mind I slipped. Pres. Bush has said repeatedly that he has nominated Judge Souter based in large part on his judicial philosophy. If that is true, then it is equally important for the Senate Judiciary Committee and Senators to explore that judicial philosophy, his legal reasoning, how he will approach cases, and I might add that if there were an emerging majority on the court that would rule to override and overturn Brown vs. Board of Education the most, one of the most important civil rights cases in the history of the court, you would be sure that the questions would be asked and that a nominee might not be confirmed if he were not to support constitutional principle of equal rights, and I don't think Roe Vs. Wade and the right to privacy should be held on any different standard.

MR. MacNeil: Dr. Willke, do you think that Judge Souter should be required to, let me put it simply, come clean on his views on this issue before his nomination?

DR. WILLKE: Well, contrary to what Ms. Michelman has said, the long tradition of this nation has been not to ask a judicial nominee about his particular value system, and of course, I think it's a completely hypothetical question. Kennedy didn't answer that question, Scalia didn't answer that question. In fact, they weren't even asked. I rather doubt if it'll be asked and I rather doubt if he'll answer it, so I really think it's a moot question.

MR. MacNeil: Well, he said himself today, he was on Air Force One getting a ride up to New Hampshire, and reporters asked him about Roe V. Wade, and Judge Souter said, "That's certainly a question that I'm going to be asked when the time for the confirmation hearing comes, and I think that would be the appropriate place for me to respond." So apparently he thinks and expects that he will be asked.

DR. WILLKE: It may well be that he will be asked and it may well be that he will answer. None of us can say that. It's within himself right now.

MR. MacNeil: Ms. Michelman, let me ask you this. Are you and your organization going to mount a campaign against Judge Souter similar to the campaign that was mounted in the case of Bork, or are you going to mount a campaign to get him to be more explicit about his views? What action are you going to take?

MS. MICHELMAN: Well, first, you know, this is such an historic juncture we face, and we believe that Brennan's resignation leaves a terrible void, and I think this particular nomination is probably vitally more important than say others in our history, however, our goal right now, Robin, is to ensure that the questions get asked, that the analysis is done, and we give Judge Souter the benefit of the doubt. He doesn't have any footprints, as they say, we need to hear from him, and I think the onus is on him to assure the American public that he respects and believes in the constitutional right of privacy, including the right to choose.

MR. MacNeil: So you're not going to mount a campaign, as of this moment with six weeks to go to the hearings, you're not going to mount a campaign against him?

MS. MICHELMAN: Well, the campaign is to tell Americans that they must contact their Senators to let them know that they expect the questions to be asked so that we understand where Judge Souter stands.

MR. MacNeil: Right.

MS. MICHELMAN: And then once learn where Judge Souter stands on these issues, we will know better what we can do.

MR. MacNeil: And Dr. Willke, are you going to mount a campaign for Dr. Souter with direct mail or whatever devices are appropriate?

DR. WILLKE: At this point, we simply don't know enough about this gentleman to say pro or con. At this point, I think we're very much in a position where we say if this man is a judicial constructionist, as he seems to be, and if he will not make law from the bench, and if as Pres. Bush has said, he will faithfully interpret the Constitution according to the way it was written, then we're going to be satisfied with him. After all, there's nothing in the Constitution about abortion or the right to privacy, for that matter. They found it in the vapors arising from a shadow of the 14th Amendment. The justices just created this and imposed their morality on the nation.

MR. MacNeil: Let me ask Nina Totenberg before we close here the President said today he's confident that Judge Souter is going to pass with flying colors the confirmation process. From what you gather, is this going to be a pretty easy confirmation?

MS. TOTENBERG: Well --

MR. MacNeil: Or a big battle? Can you judge that now?

MS. TOTENBERG: I don't think it's going to be a big battle, assuming that Judge Souter doesn't give out a lot of ammunition to potential opponents, and that includes being totally evasive before the Committee. I think times have changed and he's going to have to be at least somewhat responsive. I think both your guests tonight have been right and both have been wrong. Senators have long asked these questions. They have rarely gotten answers, but I think the Bork nomination changed that at least to some degree to the point that Justice Kennedy had to answer some questions too, and this nominee, because has so little track record, I can't imagine will be asked a series of questions not just about abortion, but about other matters involving the First Amendment, the Fourteenth Amendment, the Bill of Rights, its applicability to the states, a whole variety of things, and he will be asked questions that I can't imagine that he can completely avoid answering.

MR. MacNeil: Okay. Nina Totenberg, Kate Michelman, and Dr. John Willke, thank you, the three of you, for joining us. Jim.

MR. LEHRER: Still to come on the Newshour tonight, Gergen & Shields and the treasure from a treasure hunt. FOCUS - GERGEN & SHIELDS

MR. LEHRER: Now Gergen and Shields on this Friday night. David Gergen is Editor at Large of the U.S. News and World Report and Mark Shields is a Syndicated Columnist with the Washington Post. First Mark how do you read this Souter reaction from Mr. Willke and Ms. Michelman that we just did?

MR. SHIELDS: I think that Kay Michelman put it right no foot prints, no finger prints and I think that is exactly what George Bush was looking for. I think that in the final analysis Judge Edith Jones of the Texas Court of Appeals the last finalist with David Souter for the Job was sitting in the Oval Office and couldn't get the choice was that there was a lot that she had written, a lot that she had spoken. This is a place where assertiveness, standing up saying with you believe and all the rest of it turned out to be a liability. There was a very little published record on this man and certainly nothing like Judge Bork.

MR. LEHRER: David.

MR. GERGEN: What we are seeing, of course, is the consequence of what happened on the Bork nomination. Many conservatives feel that he was savaged unfairly and their reaction is that if we put up somebody who has a long record and you are going to tear him apart then the next time around we are going to get some one with a very short record. It will be hard to strike this guy out. I would like to go back to what Nina said. My sense right now, four days in to this since the President sent the nomination.

MR. LEHRER: Hearing is now set for September the 13th.

MR. GERGEN: September the 13th which is hopefully for the Bush Administration good news.

MR. LEHRER: Why?

MR. GERGEN: It means there is not going to be a long delay. It means the Judiciary Committee is going to move. They were worried that it might run into OCtober, the elections are in November. This was greeted warmly today by people around the President. It is a good signal from the Hill. To consider the important thing four days in to this, Nina , is right the President has a lot of the critics on the defensive and he has brought in a real pro, Duberstein.

MR. LEHRER: Who used to this for Reagan in Congressional relations.

MR. GERGEN: He was brought in after the Bork nomination was defeated and he quarter backed the Kennedy Nomination. And what we are facing are circumstances close to Kennedy's.

MR. LEHRER: Mark listening to Ms. Michelman and Mr. Willke both of them also seem prepared that if on the first day or the second day or on the third day of those hearings Judge Souter says something that gives one of them an indication, for instance in Ms. Michelman's case is that this man might go in and vote against Roe vs. Wade and Mr. Willke if he is prepared to go in their and uphold Roe vs. Wade they are prepared to fight.

MR. SHIELDS: It may very well be Jim but in order to organize these efforts of the magnitude that really contributed to the defeat and rejection of Judge Bork requires time, it requires a lot of organizational effort, it requires an immense amount of human hours which were expended. I mean the problem with David Souter for those who might be resisted or be negative to his initial appointment. He hasn't given then any indication.

MR. LEHRER: But isn't he going to have to?

MR. SHIELDS: See Judge Bork had it going in it was always there. Bork came out of the academic environment. And that was Bork but Souter is not like that. Unless he says something stupid I don't see how you put something like this together.

MR. GERGEN: Jim I think that the people running this are going to go back to the Kennedy nomination and see how it was done.

MR. LEHRER: Just to refresh every bodies memory after Bork was turned down there was Ginsberg and then Kennedy.

MR. GERGEN: Ginsberg pulled out.

MR. LEHRER: Right and Anthony Kennedy like David Souter was a Federal Appeals Court Judge. He had been on the Court much longer than Souter. Go ahead.

MR. GERGEN: In his hearings he answered theoretical questions but he refused to answer how he would apply the theory in a specific case. And he is well known that in the heart of the Roe vs. Wade decision is what has been found to be the right of privacy and Kennedy in his hearing said he thought the constitution did protect privacy but he did not say how it applied to specific cases. When he went on the bench he voted to over turn Roe vs. Wade. So Mr. Souter may acknowledge that there is a right to privacy but I think he won't say. I think the signals are there already he won't say.

MR. LEHRER: What do each of you think about the basic gut question here about whether or not the Senate of the United States and thus the rest of us the American people have a right to know how this man will vote on Roe vs. Wade when he becomes a member of the United States Supreme Court.

MR. SHIELDS: As I understand, I am not a student of the Supreme Court. So I would defer to Nina and Gergen. Asking a nominated Justice about a specific case they have every reason not to be responsive.

MR. LEHRER: I mean whether there is a right there?

MR. SHIELDS: Do they have a right to ask sure. Does he have a right to have a specific answer sure. Do they have a right to vote against him sure but they probably won't.

MR. LEHRER: But can you imagine a Senator saying I am going to vote against this person because he would not give me a direct answer on Roe vs. Wade?

MR. GERGEN: I can imagine that in a limited number of cases but I would imagine in he seemed responsive, if he talked about theory behind Roe vs. Wade and other cases that Nina has raised and he wins on television. If the truth be known Robert Bork also hurt himself on television with his combative stance but the signals coming out about his gentleman are that he seems humble. He is very reserved. His life style has left some people questioning but he has impressed people on the Hill so far but I would assume Jim that if he can answer on a theoretical level and not a specific level he will be confirmed.

MR. LEHRER: How do you feel about that Nina? Nina is still with us from New Hampshire. Do you think that he can get away without a direct answer on this issue?

MS. TOTENBERG: I think that he probably can because it is such a fire storm of an issue. On the other hand there may be some Senators, for example Senator Packwood who might demand an answer otherwise vote no. And I suppose that one might rationally say this has been around as an issue for almost two decades and perhaps the leading controversy of our times and if you don't have an opinion about it you must be an idiot. On other hand we have a tradition in this country that is worth something of an independent, up pre judged judiciary that keeps an open mind and there are all kinds of variation. Suppose he believes that Roe vs. Wade was probably not correctly decided but he also believes that it is a precedent and doesn't want to over rule it. He might think that.

MR. LEHRER: So he could give good answers to both sides in that case?

MS. TOTENBERG: You can imagine all kinds of answers that have everybody go away feeling that they still have hope. In the end, of course, he is going to vote and dash somebodies hope.

MR. GERGEN: The conservatives in this town tonight would like to know some of the answers because they are not quite certain either. There are a lot of conservatives who have run around and endorsed him but they are not quite sure. They are worried that he is not a true conservative. He does not have a long record he can wonder away. He can be another Harry Blackman a liberal from their point of view.

MR. SHIELDS: But that is fascinating because if you recall when Ronald Reagan nominated Sandra Day O'Conner and Barry Goldwater said he was terrific. Jerry Falwell and the right went after her because she wasn't specific, because she wasn't too specific on their issues. They did not know where she stood. The right was with Ronald Reagan and they felt that they had somebody could trust. Right now George Bush this is as good as it is going to get. If John Sununu put his stamp of approval on him that is good enough for them.

MR. GERGEN: You know what is interesting Jim from the point of view from the White House it is not bad that all the conservatives are not coming around with banners. It will be easier to get a vote from the middle of the road in the Senate.

MR. LEHRER: Another thing Gentlemen before we go. Nina thank you very much.

MS. TOTENBERG: Thank you Jim.

MR. LEHRER: The President's veto of the family and medical leave act this week. Some Democrats say that they can turn that in to a big issue in the fall. Can they do that do you think Mark?

MR. SHIELDS: I think that it is an issue that works against George Bush and for the Democrats. It is an issue that by Lou Harris or anyone that Americans are in favor of in a three to one margin Americans are in favor of a 12 week unpaid leave that 95 percent of American companies are exempted. Some 45 percent of the workers are not included but it puts us on par with South Africa which was the argument. I think what it does it shows more than anything else the absence of a Bush agenda. George Bush doesn't have a domestic agenda unlike Ronald Reagan and he is put on the offensive in issues like this. He finds himself having no ideological or philosophical frame work in which to cast his opposition to it so he has to come to the dollar sign and so it becomes a pro business sort of mantle.

MR. GERGEN: I very much agree with that Mark and if anything I would say Jim it is interesting while this decision over the Supreme Court is going to solidify the conservative judiciary there is every possibility that it will cause a reaction and mobilize people behind democratic candidates in a lot of these elections this year and against the election of George Bush in 1992. Remember how Webster when the Court came down with a conservative decisions it helped mobilize the pro choice vote around the country. We had a lot of marches and as Kate Michelman said there are states that haven't passed laws to restrict. There are going to be a lot of people in this country say the Supreme Court was not that important to me. It was split it didn't have that much of an impact on my life but now you can hear people saying if it gets to conservative it will take away things that I thought were mine and you don't want the pendulum swinging away that far and I would predict that the court may get a little more conservative our politics will be more liberal.

MR. LEHRER: What do you think.

MR. SHIELDS: George Bush is doing the same thing in clean air. Unlike Ronald Reagan he can rebut it and say this is wrong. The Government shouldn't be meddling. George Bush is a pro Government guy. He is giving up. I think, the political offensive. I think that David's concern may turn out to be a real. The irony now is that liberals find themselves fighting a court no unlike what the conservatives fought in the '30s. But in the sense trying to preserve what was lost Presidentially and politically somehow the court was going to save.

MR. LEHRER: And we are going to rally around and go. Thank you both very much. FOCUS - TREASURE HUNT

MR. MacNeil: Finally tonight Correspondent Elizabeth Brackett takes us on a treasure hunt. In this one, the treasures have already been found. The real question is who gets it.

MS. BRACKETT: This is what we all dream of finding someday, tons and tons of gold, three tons, in fact. As you might expect, it's not the kind of treasure you just stumble across. This gold was found one and a half miles under the ocean and one hundred and fifty miles out to sea. The treasure was found by this man, Tom Thompson, an ocean engineer and researcher from Columbus, Ohio. Thompson heads a deep sea salvage company, the Columbus America Discovery Group. The group spent six years and over $12 million looking for the ship the gold was in, the SS Central America. Isn't it pretty exciting to find three tons of gold that nobody owns on the ocean floor?

TOM THOMPSON, Treasure Hunter: It is exciting to find three tons of gold on the ocean floor. It's very exciting. It feels very satisfying, although a lot of the satisfaction really comes from being able to succeed at all these various steps all along the way, so actually getting to the final goal. There's been many successes in the project.

MS. BRACKETT: In fact, finding the gold was the least of Thompson's problems. But before getting into that, a little history is in order. The SS Central America was one of the first coal fired luxury steamships of its day. She was built to help ferry gold and passengers from California to New York during the hey day of the California Gold Rush. Passengers and cargo boarded a ship in San Francisco en route to Panama, then took a train across the country and boarded a ship bound for New York. The SS Central America sailed the final leg of this journey. But during a voyage in October 1857, she ran into a hurricane 150 miles off the North Carolina Coast. Barry Schatz, a partner in the Columbus America discovery group, picks up the tale from there.

BARRY SCHATZ, Treasure Hunter: She sprung a leak. The problem was not the leak so much as the fact that the boiler fires went out and they were never able to restart the engine and the engine drove the donkey pumps, and they had to start bailing by hand.

MS. BRACKETT: But by then, it was futile. The SS Central America slowly sank. A nearby ship took off the women and children, but most of the men went down with the ship.

MR. SCHATZ: There is really nothing to compare in peacetime, maritime history in America. It's kind of our Titanic. And the gold shipments biweekly were extremely important to the economy, especially at this time when the economy was deteriorating and when the Central America failed to arrive in New York, it touched off a run on the banks, and this led to what was called the panic of 1857.

MS. BRACKETT: Ever since, treasure hunters have been trying to find the SS Central America. But only in the last few years, with the advent of sophisticated sonar devices, has there been the technical ability to locate a wreck so deep and so far out to sea. In 1986, Tom Thompson began his ocean search, using side scan sonar to get a clear picture of the ocean floor. In 1987, Thompson felt he had found the fabled ship.

MR. THOMPSON: The wreck that we found and surveyed in 1987 had all the kind of things that had been proposed in our earlier target models. In other words, it had wood, used extensive amounts of wood, iron and coal, and particularly coal, because we know the coal wouldn't degrade, but in addition, we found period artifacts, a number of items like pottery and cups and so on.

MS. BRACKETT: But just after finding the site they thought was the SS Central America, company showed up. Another group of treasure hunters led by a Columbia University professor sailed onto the site and began slowly circling their ship. Alarmed, the Columbus America group quickly made plans to try and secure exclusive rights to the site. When you first tried to make some claim that you had found the Central America, how did you do it?

TOM THOMPSON, Treasure Hunter: Well, one of the things you do under admiralty law is to take an item of value into the core of jurisdiction, and what was obvious to us was to bring a lump of coal up and so we brought a lump of coal up as soon as we could and we had our sea plane come out and we rigged a special rope and he came by with a grappling hook and actually snagged the coal and flew into shore, landed, pulled the coal into the cockpit, took off again, went and fueled up, and then flew to Norfolk and was able to get it to the court before the court closed that day and we were able to get an injunction then on our area.

MS. BRACKETT: What saved the day and made the retrieval of the coal possible was this, the Nimo, a robotically controlled, deep sea submersible.

MR. THOMPSON: Nimo's been very important, because it's designed specifically to discover historic shipwrecks in deep water. It's very dangerous really to put people down in manned submersibles and really it's not very much of an advantage at all because we can see more in our control room through our cameras, through our seven different cameras, than you can really see looking through a 10 inch port hole, for instance, on the bottom.

MS. BRACKETT: But as hard as Thompson, his crew, and Nimo looked during the summer of 1987, they found no gold or any other relics that confirmed they had actually discovered the SS Central America. So on their way out to work the site in the summer of 1988, Thompson decided to look at another shipwreck that he had seen during his earlier sonar studies. Nimo was put in the water to check it out, and then --

MR. THOMPSON: It was really a stunning moment when we flew Nimo across the mid ships of the real Central America and saw the side wheels for the first time. We didn't even know the side wheels would even exist because of the corrosion rates at that depth. And so when we saw the side wheels for the first time, our heads were swimming, trying to figure out what it all meant.

MS. BRACKETT: By last October, Thompson was able to return to Norfolk, Virginia, with over a ton of gold recovered from the SS Central America. To keep interlopers out, Thompson kept the new location a secret, even from his own crew. In fact, only last August, did he get around to telling the court that he was actually working another site. It turned out that the new site, which is some 30 miles away from the 1987 site, was of great interest to Dr. Bill Ryan, the Columbia University professor who had wrangled with Thompson earlier. In 1984, Dr. Ryan had sonared the area wherethe SS Central America finally turned up. Dr. Ryan, seen here on board one of Columbia University's ocean research vehicles, won't talk to the press, but his lawyer, James Richardson, did.

JAMES RICHARDSON, Dr. Bill Ryan's Lawyer: Dr. Ryan in 1984 sonared an area of the ocean near where the injunction boxes are, a defined area chosen by Dr. Ryan after doing research. At that time in 1984, he sonared or targeted, found seven or eight targets of interest, one of which he advised his client was likely to be the Central America.

MS. BRACKETT: Dr. Ryan was unable to recover the site in 1984, because his client had run out of money. Thompson after starting his own search requested copies of Dr. Ryan's 1984 sonar studies. Dr. Ryan claims he thought Thompson was doing work for the Navy, so he provided his work to Thompson for a nominal fee. This is one of the sonar photos given to Thompson. This dark line, according to Dr. Ryan, is the SS Central America.

MR. RICHARDSON: It was like a road map to that part of the ocean which nobody had done any work from, showing targets in the area, including the area where the Central America was. It certainly was wanted by Mr. Thompson, something he attempted to get for over two years, and to take it, which he admits he took it, to put it on the ship, which he admits who was on the ship, and not use it is in our opinion beyond credibility, beyond belief.

MS. BRACKETT: But that, in fact, is what Thompson and his lawyers claim.

RICHARD ROBOL, Tom Thompson's Lawyer: It was of absolutely no help in locating any of the shipwreck sites. You really need to look at the photograph to see unhelpful it was.

MS. BRACKETT: As a result of a suit brought by Ryan and Columbia University, the decision of who's right and who's wrong is now in the hands of the same Norfolk federal judge who ruled on the 1987 case. But with so much money at stake, it's been estimated the booty is worth more than $400 million, it's no surprise that this treasure story has become even more complicated and murky. A group of insurance companies, claiming they are the rightful owners of the ship's cargo, are also bringing suit against Thompson.

MARILYN LYTLE, Insurance Companies' Lawyer: It's a well accepted law that when an underwriter pays for gold or whatever they own that and that they have the rights to it.

MS. BRACKETT: Attorneys Marilyn Lytle and Doug Jacobsen are representing the American and British insurance companies which paid off the claims on the SS Central America when it went down in 1857.

MS. LYTLE: We are not trying to take everything away from them. It's exactly the opposite. They are trying to take everything away from us. We know that they are entitled to an appropriate salvage award, and that whatever is brought up will be shared fairly between the competing interests, whereas they contend that it should all belong to them.

MR. THOMPSON: In this case where the wreck was abandoned, what they do is generally rule the law of finds, which means it's sort of like the old finders keepers, losers weepers kind of thing, where the title of the wreck is actually given to the salvagers. In other words, if it's clearly lost, then the entire wreck is awarded. In other words, it's like a 100 percent award.

DOUG JACOBSEN, Insurance Companies' Lawyer: Finders keepers is not the law. I know the Columbus America discovery group intends that any wreck before 1900 is a historical wreck, and for some reason it's automatically abandoned. Our position is that's not true, that property rights survive from the last century intothe 20th century, and there's no reason they shouldn't.

MS. BRACKETT: You spent all this time and all this energy and effort finding this site. Then did you feel sort of like a gold prospector in the Old West who had had his claim jumped?

MR. THOMPSON: I felt terrible, because here we were, had gone through all these hurdles over a four year period of time, if we would have failed at any one of a number of things, the whole project would have failed, and we get involved in all these court proceedings and everything. And it was the last thing that we really wanted to be spending our time and our precious efforts on with regard to the recovery.

MS. BRACKETT: In mid June, Thompson and his mates set sail for the SS Central America site to salvage the rest of the gold on board. But whether they can keep the gold will be determined as much by the courts as by their efforts on the ocean floor.

MR. MacNeil: The federal judges ruling on both suits against the Columbus America Discovery Group is expected in mid August. RECAP

MR. LEHRER: Again, the major stories of this Friday, Louisiana Gov. Buddy Roemer vetoed a state law that would have severely restricted abortions in Louisiana. The OPEC ministers meeting in Geneva agreed to a plan that could raise the world price of oil by about 1/3, and new Gross National Product figures showed the U.S. economy growing at a weak annual rate of 1.2 percent. Good night, Robin.

MR. MacNeil: Good night, Jim. That's the Newshour tonight and we'll be back on Monday night to look at the new pressures of Fidel Castro. Have a good weekend. I'm Robert MacNeil. Good night.