The NewsHour with Jim Lehrer

JIM LEHRER: Good evening, I'm Jim Lehrer. On the NewsHour tonight: The news of this day; plus, more on the violence and the election prospects in Iraq; a conversation with Jeffrey Sachs on global poverty; the stormy story of the Ninth Circuit Court of Appeals in San Francisco; and on this King Day Holiday, some talk about a new book on a coming together of Martin Luther King and President Lyndon Johnson.

NEWS SUMMARY

JIM LEHRER: Insurgents kept up the killing across Iraq today, in a campaign to derail the elections of Jan. 30. The latest attacks came north of Baghdad. In Beiji, a suicide bomber exploded a car at a police station, killing seven people, wounding twenty-five. And near Baqouba, gunmen killed eight national guardsmen manning a checkpoint near a broadcasting station. On Sunday, another 17 people were killed in attacks along a main road southeast of the capital. The Vatican today announced kidnappers in Iraq have seized a Catholic archbishop, in Mosul. He's a leader of the Syrian church, a branch of the Roman Catholic Church. A Vatican statement called the kidnapping "a terrorist act". There was no immediate claim of responsibility. Christians make up just 3 percent of Iraq's population. British officials confirmed today some 400 British troops have arrived in Basra, in southern Iraq. Their mission is to help maintain security at polling places, for the election. And around the world, Iraqis living outside Iraq began signing up today to vote.They went to registration sites in 14 countries. In London, many of the exiles said they were confused about the process, but also happy.

ABDULLAH MUHSIN: I feel jubilant; I feel great, good. I'm 50 years old man. This is the first time that I vote as an Iraqi. So of course it is a very important and very good day in my life. I'm glad that I have the chance to vote.

JIM LEHRER: Some 1.2 million Iraqi exiles are eligible to register between now and Sunday. In the United States, the largest Iraqi community is around Detroit, with about 80,000 exiles. We'll have more on the Iraqi election, and violence, right after this News Summary. Palestinian leader Mahmoud Abbas ordered security forces today to try to stop attacks on Israel. He also asked for an investigation into the attack in Gaza that killed six Israelis last week. Abbas acted two days after being sworn in as Palestinian president. In response, an Israeli spokesman said today's move is "a small step in the right direction...but the real test will be the test of performance." the militant group Hamas dismissed the orders by Abbas. It said: "We consider resistance as a red line, and no one is allowed to cross this line." The death toll in the tsunami rose again today, more than three weeks after the deadly wave hit. The government of Sri Lanka announced another 7,200 deaths, for a total of 38,000 in that country. The toll for the entire Indian Ocean region now stands at about 170,000. And in Indonesia, the U.N. banned staffers from traveling between the provincial capital of Banda Aceh and another city to the east. A spokesman cited reports of fighting between government troops and rebels. Americans honored the memory of Martin Luther King Junior today, in ceremonies across the country. Thousands of people marched through downtown Atlanta to mark the day. King preached at the city's Ebenezer Baptist Church from 1960, until his assassination in 1968. And in Washington today, Secretary of State Powell said King led the way in a "second civil war" in America, for racial equality.

COLIN POWELL: And Dr. King fought this war not with weapons but he fought it with truth. He fought it with honor. And what he did was not just something that was for black Americans. What Dr. King did that was so profound, that was so fundamental is what he did for white America, what he did for all America. ( Applause )

JIM LEHRER: Elsewhere, thousands of people marched in San Antonio. And some 45,000 volunteers turned out for an annual "day of service" in Philadelphia. The former Chinese communist leader Zhao Ziyang died today in Beijing. He'd had a series of strokes. In the 1980's, Zhao helped open china's economy to market forces. But in June of 1989, he criticized the government's hard-line reaction to pro- democracy protests in Tiananmen Square. The military crushed the protests, and Zhao was purged. He had lived under house arrest ever since. Zhao Ziyang was 85 years old. That's it for the news summary tonight, now it's on to: The violent prelude to the Iraq election; a global poverty report; the ninth circuit; and Nick Kotz and Roger Wilkins on Martin Luther King.

FOCUS - VOTES & VIOLENCE

JIM LEHRER: Violence and the Iraq elections. We start with a report from Baghdad by Jeffrey Gettleman of the New York Times. Gwen Ifill talked with him earlier this evening.

GWEN IFILL: Jeffrey Gettleman, welcome. Again, we see more violence in Iraq today. Eight national guardsmen Iraqi national guardsmen killed. Another suicide bomb and late today we hear of the kidnapping of a Syrian Catholic archbishop. How does all of this bear on what's going to happen in the election two weeks away?

JEFFREY GETTLEMAN: Well it's really not clear. I mean today was a pretty typical brutal day in Iraq. Across the country from end to end there were attacks in Basra in the south, attacks in Mosul in the north where the archbishop were kidnapped. There were attacks across the Sunni Triangle. What's interesting is according to a Baghdad newspaper today, there are two-thirds of the people in the city of Baghdad who are planning on voting in the election so it's not clear if this intimidation campaign is going to drive voters away, as some people had feared.

GWEN IFILL: Now when the Iraqi newspapers write stories like that, what do we base it on? Do you see campaigning in the streets of Baghdad and other cities and other areas? Do you see campaign posters? Do you see any sign that Americans would interpret as being a regular election campaign?

JEFFREY GETTLEMAN: There are sort of flickering traces of political activity in Baghdad and around the country. But because of the security situation, it's very dangerous to campaign. Candidates have been avoiding big public demonstrations and speeches. They've held a few events in incredibly secure circumstances to reach voters. But it's been a pretty low- key campaign. The survey that I was referring to was a poll conducted by this newspaper -- a pretty small sample size, like 300 potential voters. But the thought is that voters are going to stay away from the polls in hard-core Sunni areas where there's a lot of pressure on them not to vote and that voters in Shiite and Kurdish areas are going to go to the polls in great numbers to claim some of the political power that they've been denied for a long, long time. And places like Baghdad is where it's going to get interesting, because that's a mix of all these different ethnic and religious groups. And that's why that poll was interesting, because it was taken in Baghdad.

GWEN IFILL: The administration has said that most of this violence is only centered in four out of the 18 provinces. How do you then turn out voters? These are very populous provinces. How do you then turn out voters in those areas?

JEFFREY GETTLEMAN: Well, it's going to be really difficult for them to do that in Anbar Province, which is home to Fallujah and Ramadi, two of the more notorious cities in the insurgency, where Americans have continually fought insurgents and many lives have been lost. I think a lot of us will be surprised if the turnout is high in those areas. But the government, the American government and the Iraq government, are really emphasizing the lengths they're going to go to for security on election day, and how they're going to seal off parts of the city, ban vehicle traffic, make people walk to the polls, not drive up to them to prevent any car bombings. So they're trying to do everything they can to give Iraqi voters confidence that if they want to vote, they'll be safe to vote.

GWEN IFILL: Is there any way to predict what kind of turnout they're hoping for?

JEFFREY GETTLEMAN: Somebody was quoted in the last few days, an Iraqi official, predicting something like five to eight million people out of a potential voting base of 14 million. And I think if it did turn out to be that high -- you know -- 50 percent or higher -- that would be deemed a success. But what's going to be the critical point is how many people in the Sunni community vote, because they're the ones who feel the most isolated and the most disenfranchised by this whole process. And if there's not good representation out of the Sunni areas, the occupation in that part of the country is just going to continue, because these people are going to want to have no part of the government that they're not really part of.

GWEN IFILL: And already on this side of the ocean, people... members of the administration have started saying, well, this election is just the beginning of a process rather than an end- all, which means that they are as concerned, it sounds to me, as the folks on the ground where you are about the legitimacy of the process, if indeed the Sunni vote is depressed. Do you hear... is there a widespread voiced concern about that post-election legitimacy question?

JEFFREY GETTLEMAN: Yeah, there's a number of issues on that front. I mean, one is American officials in Baghdad are definitely beginning to downgrade expectation about this vote. After promoting, you know, it over the past several months as a critical moment in Iraq and something that would sort of include all the groups, the reality is a little different than that, and they're beginning to say, well, it's not so much turnout that matters, but just the fact that we're having this vote is a success. So that's one thing. Another thing is, it's going to be very interesting after the vote what happens, because depending on sort of the political breakdown among the three major groups in Iraq-- the Shias, the Sunnis, and the Kurds -- they're going to decide for the future of this country. They're going to write the constitution. They're then going to hold a permanent election at the end of the year. Depending on the outcome, a lot of things could happen.

GWEN IFILL: All right. Jeffrey Gettleman, thank you very much again.

JEFFREY GETTLEMAN: Thank you, Gwen.

JIM LEHRER: Ray Suarez has more on the Iraq elections.

RAY SUAREZ: And with me now are two former coalition provisional authority officials. Larry Diamond focused on political transitions while he was in Iraq in the first part of 2004; he's now a senior fellow at the Hoover Institution. And Brett McGurk was in Iraq from January to October last year; he focused on legal issues such as assisting in the drafting of the Iraqi interim constitution and setting up the legal framework for national elections.

Larry Diamond, given what you just heard Jeffrey Gettleman say, given everything that's been going on in Iraq in the past week or so, what kind of elections are you anticipating?

LARRY DIAMOND: Well, Ray, I think Jeffrey Gettleman had it very well analyzed when he said that we'll probably see a very high turnout in most of the Kurdish constituencies and the Shiite constituencies in the South and probably a very low turnout in most of the Sunni constituencies and in al-Anbar Province and Salahadeen Province and elsewhere. And this is going to create an enormous imbalance in representation among groups in Iraq. And then the question will be: How do you correct, after the election, for a system in which the Sunnis may represent 15 to 20 percent of the population but may have only been able to elect perhaps 3 to 5 percent of the seats in parliament.

RAY SUAREZ: Brett McGurk, given the conditions on the ground, what kind of election are you anticipating?

BRETT McGURK: I think it's fair to assume that there will be a lower turnout in some of those Sunni- dominated provinces because of the violence and intimidation tactics but I do think it's important to stress-- and the report earlier said that the administration is starting to stress the process - there's not just the administration. The Iraqi Islamic Party, which is boycotting the elections, recently came out and said even though we're boycotting the elections we want to be included in the post election government. And when I tried to explain in an op-ed in the Washington Post about a week ago that there are ample institutional mechanisms in place for inclusion of Sunni groups post election the way the three-member presidency council will be formed, each member must receive super majority votes from within the national assembly. That council then unanimously appoints the prime minister, approves cabinet selections. The members of the presidency council also can come from outside and do not have to be from elected within the national assembly. These are just... that's just one of the arrangements in placement Jeffrey Gettleman also mentioned the constitutional referendum process which is another avenue.

RAY SUAREZ: But given that they're electing in Iraq a constitutional convention, delegates to a constitutional convention, how do you answer Larry Diamond's question about a process that's being created and may have no or very little Sunni representation?

BRETT McGURK: Well, that also is... it's a little simplistic to say that this group is going to simply go in a room, lock the doors and draw up a constitution. That's simply not the process forward. The 275 members will determine how the constitution is going to be drafted. They will set up a constitution-drafting committee. They're going to bring people in from the outside. And the leadership of the Shia political class in Iraq is very encouraging. Abdul Aziz al-Kim, Abdul-Mani is not a finance minister, but they have been saying that we are going to reach out and include Sunni groups even if violence in those central provinces suppresses the vote. So these are all things I think people have to take into account if you're fairly going to assess the elections and the road forward.

RAY SUAREZ: Well, Larry Diamond, you heard that proposition that some of this can be fixed after the election. What do you think?

LARRY DIAMOND: I think the fixes that Brett is talking about will be important but inadequate. Yes, you can have a Sunni member of the presidency council. Inevitably there will be one. Yes, you can appoint Sunnis to the constitutional drafting committee. That will be important. But the question is who is doing the choosing? One of the concerns I think of many Sunni political forces -- some of them which are clearly democratic and civic-minded forces -- is that the Sunnis who are now being disenfranchised potentially in this election be able to choose their own representatives. And I think in addition to what Brett mentioned, it's going to be important to have some kind of national dialogue, conference or round-table where the representatives of political forces that were in the election and the representatives of political forces that either boycotted or were unable to participate in the election sit down and work out some kind of way of expanding the national assembly, perhaps amending the constitution to allow for supplementary representatives or in some other way allowing political forces from these areas that feel excluded from the process to have meaningful representation.

RAY SUAREZ: By using this formula, Brett McGurk, with a nationwide list rather than provincial elections, by running parties instead of individual candidates and putting heavy stress on that --

BRETT McGURK: Right.

RAY SUAREZ: -- did that exacerbate some of the problems you're going to have if there's a low Sunni turnout?

BRETT McGURK: There's been a lot of commentary on that. To analyze that, you have to understand where that process came from, where the unified one-district proportional representation system came from. First, the Jan. 30 election date comes from the political consensus reached between Grand Ayatollah Sistani and Lakhdar Brahimi, the U.N. Special Representative. Sistani, of course, wanted early elections and wanted elections in June. The Brahimi report said you can have elections by Jan. 30. And that became - that became the date. The U.N. Electoral Assistance Team then came to Baghdad in the spring, led by Mr. Karina Pirelli and others, and they went around Baghdad talking to a number of Iraqis with different proposals of different systems. And their conclusion was if you're going to have elections by Jan. 30, the single district proportional representation system was really the only viable option. Now I was in Baghdad at the time. And I remember some of those debates. It was a U.N. process, but if you were going to have a governorate district-based list, you were either going to have a census, you were going to have some sort of institutional body to determine how many seats each district would have. In this country every time there's a census, certain states lose seats in the House of Representatives. And there's a couple years of litigation following that. There was no institutional mechanism in place to set that up. Also a census would take approximately a year. So there are all these problems. There is also proposals to redraw district boundaries but under international law that raises serious questions about the authority of an occupation administration to redraw boundaries within an occupied territory. So all these questions are on the table; they were considered. And it was the United Nations and their expertise and I don't fault them for this, I think the system is pretty good. It was a simple first kind of became the motto.

RAY SUAREZ: And making a workable system, Larry Diamond, out of a complicated situation onthe ground, fair enough?

LARRY DIAMOND: Well, it certainly is complicated. No one is disputing that. I think you could have had, Ray, a process whereby you used the existing 18 provinces as multi-member districts. You used either the census... existing census data or the existing food ration card data to assign some number, minimum number, of seats to each province and then used a second tier of distribution, as many political systems who have proportional representation do, to compensate for each list to ensure that there is greater proportionality and in seats-to- votes; in other words, a combination of the system that's being used now with a system of multi-member districts. This would have ensured each province some minimum percentage of seats in parliament, some floor of representation, and might have been one way of assuring the Sunnis that the political process would be fair. But we have the system we have now, the election is not going to be postponed, I think unfortunately, and so people need to turn their creative political engineering minds to the question of how the damage that's been done by the potential exclusion of a section of the country can be repaired after the election.

RAY SUAREZ: Well, very briefly, how do you answer your own question? What's the best that they can do given the situation on the ground in the days after Jan. 30?

LARRY DIAMOND: I think there will need to be a national conference or dialogue, Ray, in which they bring in the wide range of Sunni groups that met in Tikrit late in December and have formed a coalition and elected a leadership and think about amending the constitution to provide for supplementary election of some number of seats either indirectly or directly from the provinces if their proportion of the turnout is much, much less than in other sections of the country.

RAY SUAREZ: Brett McGurk, would that help in your view?

BRETT McGURK: Yes, but I remain... I don't look at Iraq with any sort of a rose-colored lens. It's a long road ahead. The insurgency is vicious. It's not going to go away. But the institutional arrangements in place now do lend some support for those who say the process is pretty good. And I think the statements of the political class in Iraq, I take some encouragement from that. And I did see deals brokered on very controversial issues such as the role of Islam and so on in the transitional administrative law, brokered by the Kurdish leadership, the Sunni leadership and the Shia leadership. And some of those issues will be revisited after elections but there's a fairly sophisticated political class emerging in Iraq. I think let's watch them work over the next year. These elections are part of a process over the next year and I think there is room for some encouragement post elections even if there's violence in those Sunni-dominated provinces.

RAY SUAREZ: Brett McGurk, Larry Diamond, gentlemen, thank you both.

JIM LEHRER: Still to come on the NewsHour tonight: reducing global poverty, a circuit court, and Martin Luther King Day conversation.

FOCUS - POVERTY PLAN

JIM LEHRER: Margaret Warner has our poverty story.

MARGARET WARNER: A new U.N.-sponsored report was issued today laying out a blueprint to dramatically reduce global poverty. The report is billed as a practical plan to implement the so-called millennium development goals that world leaders agreed on in 2000 and 2002. Among its ten recommendations: Wealthy countries should boost development aid to .7 percent of GDP over the next decade, and the money should be spent in part on fairly inexpensive, quick-win projects that would dramatically improve health and education for the world's poor.

Economist Jeffrey Sachs of Columbia University is director of the U.N. Millennium Project and lead author of today's report. He joins us now.

Welcome, Dr. Sachs.

JEFFREY SACHS: Thank you so much.

MARGARET WARNER: What is the main message you would like the American public to take away from this report today?

JEFFREY SACHS: The main message is that extreme poverty on our planet, which threatens us by causing instability, disease, causes millions of people to suffer and die unnecessarily, can be brought to a close by our generation. And the Millennium development goals, which are goals to cut by half that extreme poverty by the year 2015, are achievable. But we're not on course to achieve these goals right now. We can get on course through modest steps on our part, coupled with a partnership with the poorest places in the world.

MARGARET WARNER: Give us now some examples of these quick-win projects that you described in this report.

JEFFREY SACHS: I think it's important, as Americans have seen with horror the Indian Ocean tsunami, to realize that there is a silent tsunami under way all the time in rural Africa. Every month, as many children die of malaria in Africa as died in the tsunami -- about 150,000 children dying every month. And yet malaria is a largely preventable and utterly treatable disease. It's preventable by something as simple as a mosquito bed net that's impregnated with insecticide. And these nets are extraordinarily inexpensive -- about $1 per year, $5 for a five-year net. That is an effort that the rich world could easily help the most impoverished places in the world to gain access to these nets. And ironically, it's an amount that still is too large for the poorest people in the world to gain access out of their own income. In other words, here's a quick win. We could save more than one million children per year that are dying of malaria by helping to distribute on a mass basis, like we do with immunizations, bed nets to protect the children against malaria, and with the modest additional expense to distribute effective medicines that would dramatically cut the disease burden and the number of children dying. Our estimate is that this would require about $2 to $3 per person per year in the rich world. Think about it: $2 to $3 per person in the rich world. A billion of us in the rich countries-- that's $2 billion to $3 billion per year-- could save more than a million lives.

MARGARET WARNER: All right, give us the gap that exists right now, both in percentage and in sort of the gross dollar terms between what the wealthy nations of the world are giving for development aid and what will be needed, or what is needed.

JEFFREY SACHS: Before I do that, I should say the biggest gap in our country is the gap in perception, because Americans are generous. You see how they responded to the tsunami. But they think we do twenty to thirty times more in development aid than we actually do. So right now, the rich world on average gives about 25 cents out of every $100 of rich world income to help the poor countries. In the United States, it's just 15 cents out of every $100 of our income. What we calculate to be needed is on the order of about 50 cents per every $100 of income. So the difference is going from an average of a quarter of 1 percent to about a half of 1 percent of income. It's a very modest amount. Of course, the rich world is very rich right now. It's a $30 trillion rich world economy, so a quarter of that per year is on the order of about 60 or 70 billion dollars per year incrementally that would enable the poorest parts of the world to break out of the trap of extreme poverty and disease; millions of lives saved; and finally, ending the dependence on aid, actually. That's the real point, because we not just give emergency assistance, but actually help the poor to stand on their own through the kinds of investments that we're advocating.

MARGARET WARNER: What would ensure that if the wealthy countries gave at the level you're suggesting that the money would be spent wisely on health and education projects of the kinds you're talking about, rather than lost to corruption and mismanagement by the recipient countries?

JEFFREY SACHS: Well, I think it's very important to stress we're not advocating a blank check. The money actually comes at the very end of our story. We're advocating specific, targeted assistance-- like the bed nets, which will not end up in offshore bank accounts. They'll end up protecting children as they sleep at night in malarious regions. We're advocating specific plans against which money would be dispersed step by step. We're advocating giving this kind of help to the well-governed low-income countries, so we're calling for targeting the aid to those countries that are well-governed and can demonstrate the effective use of the aid, not only beforehand, but also through monitoring, evaluation, and audits. Now, this is what the United States is beginning to do in an initiative of the Bush administration called the Millennium Challenge Corporation. It's a good start. It hasn't yet started to disperse money, but it's very much in line with the philosophy of our report. But what we're doing is providing the arithmetic and the designated areas that are very high priorities where we could have such a big difference growing more food, fighting against malaria, and so forth, where you could really make the breakthroughs.

MARGARET WARNER: Now, the Bush administration says they may be only giving 15 cents for every $100 of GDP on development aid, but that the U.S. is very generous when it comes to humanitarian aid, responding to disasters, for instance, whether it's the tsunami or famines or floods, and that also it provides military airlifts for goods, that there are a lot of remittances going back to poor countries from people who come here, migrate here to work and send the money back. What about that?

JEFFREY SACHS: Well, that's all true, but it just doesn't add up, because other countries do the same, and the overall level of our development assistance, public plus private, is perhaps 20 cents out of every $100, and it needs to be a bit higher. So I believe the generosity is there. The striking fact is Americans think that we're doing so much more than we are. Americans on opinion surveys think in their response that about a quarter of the federal budget is devoted to development assistance, and it's far less than 1 percent of the federal budget. So I think when Americans know what could be accomplished, say, in the fight against malaria or in helping farmers grow more food and what we're actually doing, they'd want to do more. They want to be sure that it would be effectively utilized. What would surprise Americans is how cost-ineffective some of our strategies are. For example, a couple of years ago, we gave a half a billion dollars of emergency food aid to Ethiopia. That was very noble and humanitarian, and vital at the moment. But we've only been giving about one-hundredth of that actually to help Ethiopianfarmers grow more food more reliably so they wouldn't be trapped by these famines every few years. We'd do a lot better if we were investing in Ethiopia's food productivity, rather than simply responding to disasters. That's really what we're saying in this report.

MARGARET WARNER: Now, in the short term, before the day that the wealthy countries give as much as you believe they should, can some of the money that is being given be redirected? For instance, take the malaria nets as an example. Are there ways that the current amount of money could be used more wisely, and will that begin?

JEFFREY SACHS: Well, or course, no doubt almost any money flow could be used more wisely, but the amount of money actually reaching Africa from U.S. assistance has been on the order of about $2 to $3 per African per year-- not enough to really rearrange to make a decisive difference. And we're saying that you actually have to do the arithmetic and get those numbers up. A problem with U.S. policy in the past is that there actually are lots of symbolic efforts on malaria, on water and sanitation, even -- it's a little unfair. They're more than symbolic; they're just very small-scale. And so what I'm strongly suggesting to the government, to the White House, to the Congress is, let's do the arithmetic together to see what it would really cost, because the bottom line is far less shocking than most people assume. It really is pennies on the hundred dollars, 20 or 30 cents on the hundreds dollars-- absolutely a manageable sum for results that would provide a vast boost to our security, help to stabilize a very unstable part of the world, and, of course, do what Americans first and foremost would like to do, which is to save lives and help people stand on their own feet.

MARGARET WARNER: Jeffrey Sachs, head of the U.N. Millennium Project, thank you.

JEFFREY SACHS: Well, thank you very much.

FOCUS - CONTROVERSIAL COURT

JIM LEHRER: Now, the fight over a federal appeals court. Spencer Michels reports.

SPOKESMAN: This is probably the most elaborate and the most famous of the courtrooms. There have been some famous trials here. Tokyo Rose was tried in this room.

SPENCER MICHELS: The 9th Circuit Court of Appeals with headquarters in politically liberal San Francisco has become an ideological target for many conservatives. Even on public tours, where visitors can explore the recently restored 1905 granite, marble and redwood courthouse, the intensity of feeling over some of the courts' rulings creeps into the guide's narrative.

SPOKESMAN: I gave a tour to a fundamentalist Christian group, and they were here mainly to see where the devil dwells.

SPENCER MICHELS: The Notorious Ninth, as it is sometimes called, is the largest of the 12 federal appeals circuits, with 47 working judges. The court represents nine states in the west plus two pacific islands. It has inspired such animosity because of several key rulings. Most recently, a 9th Circuit panel approved the use of medical marijuana in California, a decision the Supreme Court could reverse this year. The court has drawn ire for protecting the forests, the spotted owl and salmon, decisions seen as favoring environmentalists and against timber, mining and commercial fishing interests. The Ninth Circuit drew its most intense criticism with its pledge of allegiance decision.

GROUP RECITING PLEDGE OF ALLEGIANCE: one nation, under God, indivisible, with liberty and justice for all.

SPENCER MICHELS: The judges ruled in 2002 that inclusion of "under god" in the pledge was an "endorsement of religion," and therefore unconstitutional. That decision was overturned by the Supreme Court on a technicality. The critics, like Alaska Sen. Lisa Murkowski, say the court is out of synch with many of its constituents throughout the West, and needs to be split up.

SEN. LISA MURKOWSKI: The pledge decision highlights how out of touch this court is from common sense and constitutional values.

SPENCER MICHELS: But Ninth Circuit Judge Alex Kozinski, a Reagan appointee, says the ruling on the pledge was written by an judge appointed by Richard Nixon.

JUDGE ALEX KOZINSKI, Ninth Circuit Court of Appeals: That was a Republican judge, appointed by a Republican president, a conservative judge reading the law. Reading the Supreme Court cases and making up his mind not based on a finger in the wind, not based on a fear that whether it will be split or politicians will be unhappy or the president will be unhappy but based on the case before him. It seems to me that this is what makes this country truly great -- that we can have a judiciary where the person who appoints you doesn't own you.

SPENCER MICHELS: Now, a number of senators and representatives support breaking up the court, including Republican Sen. Orrin Hatch, who thinks it's just too liberal.

SEN. ORRIN HATCH: It is also a court that is seriously out of balance, with seventeen of its twenty-four active judges appointed by Democratic presidents. It is about time that we let the 9th Circuit Court of Appeals know that, as the most reversed court in the country, to think twice before they do something like this.

SPENCER MICHELS: University of California Law Professor Vikram Amar has studied the court's record and says it is in the mainstream when it comes to how often it is overruled by the Supreme Court.

VIKRAM AMAR: I found that the kind of common impression people have of the 9th Circuit as kind of a rogue circuit, and an excessively liberal circuit that's always getting reversed by the Supreme Court much more than other courts is actually inaccurate and increasingly so.

SPENCER MICHELS: Judge Kozinski agrees, and also disputes the allegations that the court is too liberal.

JUDGE ALEX KOZINSKI: I was appointed by President Reagan; I've been here 20 years. So I don't consider myself anybody's liberal. And yet I can say with some confidence that cries that the 9th Circuit is so liberal are just simply misplaced.

SPENCER MICHELS: Even when not attracting the political limelight, the court is busy. Last year, 14,000 appeals were submitted to the circuit's judges, who work throughout the west. The judges usually hear cases in three-judge panels there is no jury, and rarely any audience, as the judges question attorneys from opposing sides.

SPOKESPERSON: In other words, you want to answer the question you wished I'd asked, and not the question I did ask.

SPENCER MICHELS: In most federal appellate courts, all the judges meet en banc, as it's called, to hear some important cases. But the 9th Circuit is so big that only 11 of its judges make up an en banc panel, as in the case to halt the California recall election.

SPOKESPERSON: What is your position on the relationship on the timing of the recall to the ballot initiative?

SPOKESPERSON: I appreciate that, Your Honor...

SPENCER MICHELS: The sheer size of the 9th Circuit and rapid population growth in the west, prompted a bill last year in congress to split the court into three separate circuits.

SPOKESPERSON: What your response to him --

SPENCER MICHELS: 9th Circuit Judge Diarmuid O'Scannlain, a Reagan appointee and one of nine judges who favor the breakup, agrees with that concept. He argues that the court's size leads to too many three-judge panels, which then produce decisions that are at odds with each other.

JUDGE DIARMUID O'SCANNLAIN: We get consistently criticized because people will find a case of our court that says one thing here, and then another case, again from our court from a different panel, that says something totally inconsistent.

SPENCER MICHELS: The 9th Circuit's chief judge, Mary Schroeder, a Jimmy Carter appointee from Arizona, disagrees.

CHIEF JUDGE MARY SCHROEDER: Occasionally, there are conflicts, when two panels disagree, and we have a process, an en banc process, where we resolve those conflicts and create authority that is binding on the circuit.

SPENCER MICHELS: As for efficient administration, innovations like judges meeting via satellite, and increased use of computers has made the court function smoothly, says the 9th Circuit clerk.

CATHY CATTERSON: And I think in large party it is manageable because of the changes in technology that allows one to keep track of all these cases.

SPENCER MICHELS: But the administrative and size issues are a smokescreen, according to Rep. Howard Berman.

REP. HOWARD BERMAN: Believe me, my colleagues, the original proponents of this split and many of its supporters are doing this not based on judicial efficiency, but on ideology.

SPENCER MICHELS: If Congress splits the court for political reasons, that curtails its independence, argues Chief Judge Schroeder.

CHIEF JUDGE MARY SCHROEDER: I think that there are constitutional implications if re-alignments are made for the wrong reasons, because I think we must be concerned if Congress decides that it is going to punish a court or a circuit for decisions that are unpopular. The constitution prevents Congress from getting rid of judges it doesn't like.

SPENCER MICHELS: Judge O'Scannlain sees no constitutional issue in splitting the court, since it's been done before.

JUDGE DIARMUID O'SCANNLAIN: With all due respect to my chief judge, that is sheer nonsense. How can you say that there is a threat to judicial independence to talk about splitting the 9th, when there was no threat to judicial independence in putting New England and New York into two separate circuits back in the early 1800s; I mean, I'm sorry, I just don't think there is any merit to that argument.

SPENCER MICHELS: UCLA Law Professor Eugene Volokh is a self-described conservative who follows the 9th Circuit and the debate over its decisions. He says such controversy is inevitable.

EUGENE VOLOKH: There are some judges who have rendered incorrect decisions, and decisions where perhaps their ideology has colored their judgment of the Constitution too much. But I think that's very much the exception and not the rule, and again that's something that is to be expected. This is criticism that people have been making of judges for 200 years in America. That's just the nature of things when you've got democratic appointees and well as Republican appointees on the courts.

SPENCER MICHELS: The bill to break up the court passed the House last year, but did not reach the Senate. Two such bills were introduced this year, and so the debate over whether to break up the 9th Circuit, for political or administrative reasons, continues.

FOCUS - JUDGMENT DAYS

JIM LEHRER: And finally tonight, to Jeffrey Brown for a Martin Luther King Day, new book conversation.

JEFFREY BROWN: This year marks the 40th anniversary of the 1965 Voting Rights Act, a key piece of an immensely fertile period of civil rights activity and legislation. Two figures towered over that period: Martin Luther King Jr. and Lyndon Baines Johnson. A new book titled "Judgment Days" tells the story of these two leaders and of what it calls the laws that changed America. Its author is Nick Kotz, a Pulitzer Prize winning journalist and writer. Also joining us is Roger Wilkins, professor of history at George Mason University. He served in various posts in the Johnson administration. Nick Kotz, the first words of your book are "they were unlikely partners." Why don't we start there. Why unlikely?

NICK KOTZ: They were unlikely for a number of reasons. Johnson was a man of Washington. To him, power was exercised from Washington and if you wanted to do business in Washington, you came there and petitioned the government. Dr. King was not only a preacher, he was a great organizer of people in the streets. He put pressure on the government by arousing public sentiment for things that he wanted changed. Johnson, Kennedy before him, disliked more than anything else street demonstrations because they were volatile, they could produce very up certain... uncertain results. And despite many, many dissimilarities between these two men, King said to Johnson that they did have something deeply in common, and that was a love for the South and their southern roots. But the most important thing they had in common was a passion for equality.

JEFFREY BROWN: Roger, obviously they were brought together by an historical moment.

ROGER WILKINS: The moment consisted of more concerted energetic civil rights action than this country has ever seen. And King became the voice for all those people in the streets in the South, but as important as he was, we can't forget that there were just all kinds of wonderful young people in the South so what brought these men together where both of them were being moved by this enormous pressure in the streets and the great talent that had been drawn to the civil rights movement.

JEFFREY BROWN: So when they were brought together and with their different personalities, what was it like between them? What was their personal relationship?

NICK KOTZ: Their personal relationship was always very formal. These two men were never friends. During this particular battle in almost like a ballet, Johnson and King behind the scenes learned to adjust to each other's moves. And if they had not done so, Selma and the Voting Rights Act could have turned out very differently. We could have had incredible violence and bloodshed. We could have had Johnson being forced to send in federal troops which he feared would be a second reconstruction. And it was because Johnson and King knew when to push, knew when to pull back, that they were able to bring this off in a peaceful way.

JEFFREY BROWN: We have a short exchange of a taped conversation between the two of them. It's from 1965. They're talking about building up the black vote. Why don't we listen to that.

AUDIO TAPE:

LYNDON B. JOHNSON: There is not going to be anything though, Doctor, as effective as all of them voting. That will get you a message that all the eloquence in the world won't bring because the fellow will be coming to you then instead of you calling him.

MARTIN LUTHER KING, JR.: And it's very interesting, Mr. President, to notice that the only states that you did not carry in the South - the five Southern States - had less than 40 percent of the Negroes registered to vote. That was very interesting to note. I think a recent article from the University of Texas brought this out very clearly so it demonstrates that it is so important to get Negroes registered to vote in large numbers and it would be this coalition of the Negro voter and the popular white vote that would make the new South.

LYNDON B. JOHNSON: That is exactly right.

JEFFREY BROWN: Roger, what I hear is a little bit of the formality that Nick Kotz was talking about but the sort of practical "how do we get things done?"

ROGER WILKINS: Johnson was more at ease with King than the Kennedy people because they just... these New Englanders just didn't get the kind of rhythm and the cadence and the biblical spirit that King brought even to the most intimate tables where he had discussions with the government. Johnson had grown up in the South and he knew black people, knew poor people, and so despite his history in the Senate, he was much more at ease with this man and this kind of conversation, but he's also wary of him because as Nick said, we in Washington-- even those of us who were pushing from the inside for more vigorous action and wanted the demonstrations to continue -- understood that they were a real problem for the politicians who were our bosses.

NICK KOTZ: The nuances in that conversation, including parts that we didn't have time to play, here was the president of the United States who intensely disliked these demonstrations coaching King on how he could make the points of or dramatize the points of this horrible discrimination against blacks trying to vote, and here was Martin Luther King telling Lyndon Johnson how to win the 1968 election. And the final line in that exchange, where King is telling Johnson if we can get black Americans registered to vote, those black Americans and modern... moderate white Americans can create a new South. They both believed in that vision.

JEFFREY BROWN: They would have a major falling out over Vietnam. But how do you sum up the legacy of what they did in the period that you're describing?

NICK KOTZ: The legacy that they accomplished was to abolish official government authorized segregation and discrimination in this country. That was so important. What they could not accomplish-- and despite the differences over Vietnam-- Johnson and King were both... it was a tragic ending to this story because neither Johnson nor King could deal with riots, could deal with the horrible problems in the cities which required far more than simply ending segregation laws. They were both very frustrated about that.

ROGER WILKINS: Certainly, the jewel in their crown of these men was the Voting Rights Act. The tragedy is that Nick's book talks about a conversation between Sen. Russell of Georgia and Johnson early in Johnson's presidency when Johnson acknowledges to Russell that the Vietnam War, he believes, is a mistake and not winnable. Those of us in the government didn't really understand. I think the people in the country didn't know that Johnson knew that and was dealing with this tragic thing. So when King, who he had helped, turned on the war, he felt utterly betrayed.

NICK KOTZ: I agree with that. At the very end, although they had broken, they were very bitter about each other, Johnson did the day after King died used King's death and that horrible tragedy to get yet another civil rights law through the Congress, which was the 1968 fair housing law. So no matter which kind of personal animosities existed between him and individual black or white leaders, Johnson was devoted to the goal of equal rights.

JEFFREY BROWN: All right. Nick Kotz's new book is called "Judgment Day." Mr. Kotz and Roger Wilkins, thanks very much.

RECAP

JIM LEHRER: Again, the major developments of this Martin Luther King Day: Violence surged again in Iraq, 15 Iraqis died in two separate attacks and kidnappers seized a Christian archbishop. And the death toll in the tsunami rose again to about 170,000.

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

JIM LEHRER: We'll see you online, and again here tomorrow evening, I'm Jim Lehrer. Thank you, and good night.