The NewsHour with Jim Lehrer

JIM LEHRER: Good evening, I'm Jim Lehrer. On the NewsHour tonight, the news of this Monday, then: Opening day of confirmation hearings for Supreme Court nominee Samuel Alito, with excerpts and analysis by legal scholars Bruce Fein and Kathleen Sullivan; the battle to succeed House Majority Leader Tom DeLay as seen by Congress watcher Norman Ornstein; and a look at corporate America's move to freeze pension plans.

NEWS SUMMARY

JIM LEHRER: Senate confirmation hearings began today for Supreme Court nominee Samuel Alito. He promised to follow the law, if he's confirmed, and not to look for "a preferred outcome". Democrats promised tough questions on executivepowers and abortion rights. Republicans defended Alito as exceptional and honest. The two sides summed up after opening statements ended.

SEN. CHARLES SCHUMER: I want to say that I thought the opening statements really drew the issue and that is: Is Judge Alito within the mainstream is or is he out of the mainstream? And we won't know much until we actually begin to ask him questions starting tomorrow.

SEN. CHUCK GRASSLEY: He's going to be a judge that does what a judge should do. And what the opposition tends to be portraying is that this is some political campaign. A lot of the questions and the issues that have come up would really be more appropriate for a congressional campaign.

JIM LEHRER: We'll have extended excerpts from today's hearing and analysis right after this News Summary.

Today was National Police Day in Iraq, and suicide bombers used the occasion to attack; 29 Iraqis died in twin explosions at the interior ministry in Baghdad. Authorities said the attackers wore police uniforms and had security passes.

Over the weekend, 12 Americans died in a helicopter crash in northern Iraq. They included eight troops and four civilians. Since last Thursday, 28 Americans have been killed in Iraq. More than 2,200 have died since the war began.

Al-Qaida in Iraq rebuked Sunni Arabs today for taking part in elections. The criticism came in an online statement. A speaker, believed to be Abu Musab al-Zarqawi, said Sunnis should have boycotted last month's vote. He said: "The crusader enemy was losing, and then you threw a rope to save him."

The main Sunni party is negotiating to become part of a new government.

Israeli Prime Minister Sharon began breathing on his own again today. He suffered a major stroke last week and needed emergency brain surgery. Today, doctors in Jerusalem started easing him out of an induced coma. They said he began breathing on his own and responded to physical pressure.

DR. SHLOMO MOR-YOSEF: He started to move minimally his right hand and right leg. But still, the condition of prime minister is severe and critical with some signs of brain activity.

JIM LEHRER: Sharon's chief neurosurgeon said the movement was a "very important" sign. But he cautioned it's far too early to judge the overall brain condition.

Vice President Cheney was hospitalized in Washington this morning with shortness of breath. Doctors said it was a side effect from medication for a foot problem. The vice president was released after four-and-a-half hours, and attended meetings this afternoon at the White House.

At a briefing, presidential spokesman Scott McClellan said there was no question of replacing Mr. Cheney.

SCOTT McCLELLAN: The president spoke to him by phone. And the vice president indicated he was feeling fine. And the president indicated that he looked forward to seeing him this afternoon. The vice president is a very valuable member of this team, he is doing a great job for the American people. And the president looks forward to continuing to work with him to get things done on their behalf.

JIM LEHRER: The vice president has a long history of heart problems and has a pacemaker. But his doctors said today's problem was not related to the heart.

The race to elect a new House majority leader began in earnest over the weekend. On Saturday, Congressman Tom DeLay said he will not try to reclaim the leadership post. He faces campaign finance charges in Texas. In response, the acting majority leader, Roy Blunt of Missouri, said he would run to succeed DeLay. And John Boehner of Ohio announced his candidacy. Both men promised action on reforms. We'll have more on this story later in the program.

Iran confirmed today it will again take up research on nuclear fuel. The announcement drew immediate criticism from the international community. France called it a "cause for great concern." Germany warned there would be consequences. In Washington, a White House spokesman said there could be a new push to impose U.N. sanctions on Iran.

Turkey reported a growing number of bird flu cases in humans today. The total is now at least fifteen, including the first two deaths outside East Asia. In Washington, an official with the World Health Organization said it appears all of the victims were infected by domestic birds.

DR. DAVID NABARRO: There is no evidence of sustained human-to-human transmission of the bird flu virus at this time. However, and this is the big however, we have to be always on the alert to make sure that that human-to-human transmission hasn't started.

JIM LEHRER: This strain of the bird flu virus has killed more than 70 people in East Asia since 2003. Health officials fear it could mutate into a form that spreads rapidly from human to human.

On Wall Street today, the Dow Jones Industrial Average closed above 11000 for the first time since before 9/11. The blue chip index gained 52 points to close at nearly 11012. It last crossed that barrier in June of 2001. The NASDAQ rose 13 points today to close above 2318.

And that's it for the News Summary tonight, now it's on to: Day one for Alito; leading the House Republicans; and doing away with pensions.

FOCUS -THE ALITO HEARINGS

JIM LEHRER: Congressional Correspondent Kwame Holman begins our coverage of the Alito confirmation hearings.

KWAME HOLMAN: 55-year-old Samuel Alito, jr. Appeared before the Senate Judiciary Committee at noon today two months after being nominated by President Bush. He replaced the previous nominee Harriet Miers who withdrew her nomination after a barrage of criticism from conservatives including that shellacked sufficient judicial experience.

Alito clearly does not have that problem. He spent six years as a lawyer in the Reagan White House and Justice Department, three as a U.S. attorney in New Jersey, and the last 15 years sitting on the third circuit U.S. Court of Appeals in Philadelphia.

But Alito's years of experience bring with them a lengthy paper trail including several documents that have raised questions about his views on presidential power, civil rights and abortion.

SEN. ARLEN SPECTER: There is, I think, a heavy sense of drama as these hearings begin.

KWAME HOLMAN: Judiciary Committee Chairman Arlen Specter opened the hearings by citing two documents, a 1985 application for a White House job in which Alito wrote that the Constitution does not protect the right to an abortion, and a memo from that same year in which Alito advocated an approach to overturning Roe versus Wade.

SEN. ARLEN SPECTER: This hearing will give Judge Alito the public forum to address the issue as he has with senators in private meetings -- that his personal views and prior advocacy will not determine his judicial decision, but instead, he will weigh factors such as stari decisis - that is, what are the precedents that he will weigh women's and men's too reliance on Roe and he will consider too whether Roe is quote embedded in the culture of our nation.

KWAME HOLMAN: New York's Chuck Schumer previewed some of the pointed questions he and his Democratic colleagues will pose on the abortion issue.

SEN. CHARLES SCHUMER: So we will ask you: Do you still personally believe very strongly that the Constitution does not protect a right to an abortion? We will ask: Do you view elevation to the Supreme Court where you will no longer be bound by high court precedent as the long sought opportunity to advance the goals of bringing about the eventual overruling of Roe V. Wade as you stated in 1985?

KWAME HOLMAN: But South Carolina Republican Lindsey Graham said some Democrats are obsessed with the abortion issue to the detriment of the Senate's advise and consent role.

SEN. LINDSEY GRAHAM: Are we going to say as a body it doesn't matter how smart you are, how many cases you decided, how many things you have done in your life as a lawyer, forget about it, it all comes down to this one issue?

If we do, if we go down that road, there will be no going back. And good men and women will be deterred from coming before this body to serve their nation as a judge at the highest levels.

KWAME HOLMAN: Utah Republican Orrin Hatch added that no nominee should have to answer questions on how he might rule on specific issues. And Hatch said Alito's past writings should be considered independently, not lumped together by his opponents to score political points.

SEN. ORRIN HATCH: Each of these must be considered in its own context and its own terms rather than squeezed, twisted and distorted into something designed instead to support a preconceived position or serve a preplanned agenda.

KWAME HOLMAN: Wisconsin Democrat Russ Feingold did focus on a particular issue, one that came up during Alito's confirmation hearing for the court of appeals in 1990.

SEN. RUSS FEINGOLD: Judge Alito promised to recuse himself in cases involving a mutual-fund company with which he had substantial investments. Vanguard. He kept those investments throughout his service in the court of appeals and still has them today.

But in 2002 he sat on a panel in a case involving Vanguard. Since his nomination to the Supreme Court, we have now heard different explanations from the nominee and his supporters about why he failed to recuse himself.

Needless to say, the shifting explanations and justifications are somewhat troubling.

KWAME HOLMAN: Fellow Democrat Edward Kennedy of Massachusetts cited the controversy over the president's use of domestic spying following the 9/11 attack without court approval. Kennedy said Alito's record shows a tendency to defer to the executive branch.

SEN. EDWARD KENNEDY: I'm gravely concerned by Judge Alito's clear record of support for vast presidential authority unchecked by the other two branches of government.

In decision after decision on the bench he has excused abusive actions by the authorities that intrude on the personal privacy and freedoms of average Americans. And in his writings and speeches he has supported a level of overreaching presidential power that, frankly, most Americans find disturbing and even frightening.

KWAME HOLMAN: Several committee Republicans spoke more generally about the judicial branch, conveying their displeasure with so-called activist judges who legislate from the bench, ignoring constitutional guidelines. Alabama's Jeff Sessions.

SEN. JEFF SESSIONS: We don't want an activist judge. That's not what we want in this country. By activist I mean a judge who allows his personal views to overcome a commitment to faithfully following the law. Following the law as it is, not as you would like it to be, good or bad, following that law.

KWAME HOLMAN: Fellow Republican John Cornyn of Texas said activist judges have prohibited people from expressing their faith in public.

SEN. JOHN CORNYN: There is no doubt where the founding fathers stood on this issue. They believed that freedom of expression included religious views and beliefs, so long as the government did not force people to worship in a particular manner, and remain neutral on what those views and beliefs were.

But this country has gotten seriously off track under the Supreme Court when it went so far as to limit the right of even private citizens to freely express their religious views in public.

KWAME HOLMAN: Alito's nomination is being scrutinized especially closely because he would succeed the retiring Sandra Day O'Connor who has been the swing vote in scores of court decisions. Illinois Democrat Dick Durbin noted her role in matters of church and state responding to his colleague John Cornyn.

SEN. RICHARD DURBIN: Justice O'Connor was the fifth vote to uphold the time-honored principles which bears repeating of separation of church and state. There was real wisdom in the decision of our forefathers in writing Constitution that gave us an opportunity to grow as such a diverse nation. And we should never forget it.

KWAME HOLMAN: Once all the members of the Judiciary Committee had spoken, Chairman Specter swore in Judge Samuel Alito.

SPOKESMAN: Do you solemnly swear that the testimony you will give before the Committee of the Judiciary of the United States Senate will be the truth, the whole truth and nothing but the truth, so help you God?

JUDGE SAMUEL ALITO: I do.

KWAME HOLMAN: Then it was Judge Alito's turn to address the committee and the nation.

JUDGE SAMUEL ALITO: I am who I am in the first place because of my parents, and because of the things that they taught me. And I know from my own experience as a parent, that parents probably teach most powerfully not through their words but through their deeds. And my parents taught me through the stories of their lives.

And I don't take any credit for the things that they did or the things that they experienced, but they made a great impression on me. I got here in part because of the community in which I grew up. It was warm, definitely unpretentious, down to earth community. Most of the adults in the neighborhood were not college graduates.

I attended the public schools. In my spare time I played baseball and other sports with my friends. And I have happy memories and strong memories of those days and good memories of the good sense and the decency of my friends and my neighbors.

And after I graduated from high school, I went a full 12 miles down the road, but really to a different world when I entered Princeton University.

A generation earlier I think that somebody from my background probably would not have felt fully comfortable at a college like Princeton, but by the time I graduated from high school, things had changed.

And this was a time of great intellectual excitement for me; both college and law school opened up new worlds of ideas. But this was back in the late 1960s and early 1970s. It was a time of turmoil at colleges and universities.

And I saw some very smart people and very privileged people behaving irresponsibly as I couldn't help making a contrast between some of the worst of what I saw on the campus and the good sense and the decency of the people back in my own community.

I am here in part because of my experiences as a lawyer. I had the good fortune to begin my legal career as a law clerk for a judge who really epitomized open-mindedness and fairness. He read the record in detail on every single case that came before me.

He insisted on scrupulously following precedents, both the precedents of the Supreme Court and the decisions of his own court, the third circuit. He taught all of his law clerks that every case has to be decided on an individual basis. And he really didn't have much use for any grand theories.

After my clerkship finished, I worked for more than a decade as an attorney in the Department of Justice. And I can still remember the day as an assistant U.S. attorney when I stood up in court for the first time and I proudly said my name is Samuel Alito, and I represent the United States in this court. It was a great honor for me to have the United States as my client during all of those years.

And of course I have been shaped for the last 15 years by my experiences as a judge of the court of appeals. During that time I have sat on thousands of cases. Somebody mentioned the exact figure this morning. I don't know what the exact figure is but it is way up in the thousands. And I have written hundreds of opinions.

And the members of this committee and the members of their staff who have had the job of reviewing all of those opinions really have my sympathy I think that may have constituted cruel and unusual punishment.

I have learned a lot during my years on the Third Circuit, particularly, I think, about the way in which a judge should go about the work of judging. I have learned by doing, by sitting on all of these cases. And I think I've also learned from the examples of some really remarkable colleagues.

When I became a judge, I stopped being a practicing attorney. And that was a big change in role. The role of a practicing attorney is to achieve a desirable result for the client in the particular case at hand. But a judge can't think that way.

A judge can't have any agenda. A judge can't have any preferred outcome in any particular case. And a judge certainly doesn't have a client. The judge's only obligation, and it's a solemn obligation, is to the rule of law. And what that means is that in every single case the judge has to do what the law requires.

Good judges develop a certain habits of mind. One of those habits of mind is the habit of delaying, reaching conclusions, until everything has been considered. Good judges are always open to the possibility of changing their minds based on the next brief that they read or the next argument that is made by an attorney who is appearing before them or a comment that is made by a colleague during the conference on the case when the judges privately discuss the case.

It's been a great honor for me to spend my career in public service. It has been a particular honor for me to serve on the court of appeals for these past 15 years because it has given me the opportunity to use whatever talent I have to serve my country by upholding the rule of law.

And there is nothing that is more important for our republic than the rule of law. No person in this country no matter how high or powerful is above the law, and no person in this country is beneath the law.

Fifteen years ago when I was sworn in as a judge of the court of appeals, I took an oath. I put my hand on the bible and I swore that I would administer justice without respect to persons; that I would do equal right to the poor and to the rich; and that I would carry out my duties under the Constitution and the laws of the United States. And that is what I have tried to do to the very best of my ability, for the past 15 years. And if I am confirmed I pledge to you that that is what I would do on the Supreme Court. Thank you.

KWAME HOLMAN: Judge Alito will begin answering senators' questions tomorrow morning.

JIM LEHRER: And to Ray Suarez.

RAY SUAREZ: Joining us to break down the issues raised during the senators' opening statements are two constitutional law scholars. Kathleen Sullivan is a professor at Stanford University Law School. Bruce Fein was associate deputy attorney general during the Reagan administration. He is now in private practice in Washington, D.C.

And, Bruce Fein, that statement from Judge Alito was short, to the point. What was he telling us in it about how he is going to handle himself during these hearings?

BRUCE FEIN: Well, I think it suggested that he wanted to avoid explaining exactly his judicial philosophy. By philosophy I don't mean a particular outcome in a particular case but choosing between two very different schools of thought as to how the Constitution ought to be addressed. One school that was represented by Judge Robert H. Bork, and he was defeated and Alito deplored that defeat, was that the text, the original understanding of the Constitution governed the justice's interpretation of the Constitution and the judge, if is not permitted to inject a sense of social goodness or ethical compulsion in embellishing upon the constitutional words and understanding of the founding fathers.

For example, the idea that the Constitution ought to protect a right of privacy because it is a good idea and if the legislators don't amend the Constitution to protect that right, the justices need to step in and raise the level of morality that the politicians seem to be, and the public accept, is something that the non-Alito school accepts.

Judge Alito during his testimony avoided any statement about judicial philosophy, which is about the nomination process itself. It is not -- I think everyone understands that a judge should be open-minded, should entertain different views.

Those sorts of things are standard for anyone who would sit on the Supreme Court or any other court. But the decisive test and what ought to be brought out in the hearing is what are the philosophical convictions that lead the justice in examining any particular case to decide that there is or is not a constitutional claim.

RAY SUAREZ: Professor Sullivan, Judge Alito called the judge a man without a client, virtually, and as Bruce Fein noted, endorsed that idea of a constantly open mind. Can that be sustained across the four days or three days of hearings?

KATHLEEN SULLIVAN: Well Judge Alito made a very appealing statement about his worthiness to step into the shoes, the giant shoes left by Justice Sandra Day O'Connor, who is a paradigm of judicial independence, fair-mindedness, open-mindedness, and lack of ideological agenda.

And the two most important things and very appealing things that Judge Alito said were first that the rule of law is fundamental and the role of the judge is quite different from the role of the lawyer, and that the role of the judge is to be independent of agendas and clients.

And second, he said no person, no matter how high, is above the law and no person beneath the law, so he is trying to signal a kind of judicial independence that will appeal to the members of the Senate Judiciary Committee. But I think the divide we saw today is a little bit different than the one that Mr. Fein described.

The divide we saw today between the Republican and the Democratic senators was between two views of the role of the judges on the Supreme Court, the justices on the Supreme Court. The Republicans sounded the theme of judicial restraint. Judges are unelected and so they shouldn't strike down the will of the people or impose their will on the people.

Judges should be restrained and defer to statutes and laws passed by Congress and the states. The Democrats sounded a different theme, the theme of judicial independence, the important role of the Supreme Court in upholding the rights of minorities and women and the little guy against sometimes the will of the majority, not because they want to raise the moral level, as Mr. Fein suggests, but because those minority rights as the framers imagined will sometimes be trampled by the majority and need to be upheld by the courts.

But most important line of the day is that line about no person is above the law because the other theme the Democrats sounded is the important theme of the need for judicial restraint of the novel and sweeping, perhaps unprecedented claims of unfettered executive authority that we've seen coming from the administration during the war on terror.

RAY SUAREZ: Do you accept -- go ahead.

BRUCE FEIN: Well, I think some of the observations are somewhat facile, for example, the Republicans, Arlen Specter who would champion Alito as someone who ought to be practicing judiciary restraint, they have the idea that the court should -- that the court is acting in a way that is too aggressive in commerce clause cases.

And that is something that -- it wasn't from just Specter, some of the other Republicans applaud the effort of the Supreme Court to reign in Congress under the commerce clause.

So I don't think that there is a consistent philosophical division between the Republicans and Democrats. But I come back -- much of what Kathleen Sullivan said is accurate. But what counts on the Supreme Court is a judicial philosophy. Everybody understands that a judge should be independent. They should do what the president tells them to do, that they have to exercise independent judgment.

But what splits the court and has split the court for the last 30 years is these two different views of what a proper philosophy is interpreting the Constitution. Is it simply to protect whatever minority right happens to be there, whether it consistent with the understanding of the founding fathers, or whether the court itself is bound by that original understanding, and if there are to be improvements in deficiencies found, whether it through the amendment process, like the bill of rights or the civil war amendment.

And that philosophical division was never really addressed by Judge Alito and not really addressed by either the Democrats or the Republicans. Now the one thing that was important I think that Kathleen Sullivan mentioned was this issue about there is no person above the law. You may recall during Richard Nixon's days, he said if the president orders something, it's legal, whether it is a break-in or not.

Given some of the claims that have been made with regard to executive power these days, I think Judge Alito may have been sending a signal that at least on his watch there is nobody, even the president of the United States who escapes judicial review.

RAY SUAREZ: Well, Professor Sullivan, given that the Democrats in their opening statements did mention some specific issues that they intend to quiz the nominee about, will he be able to use the deflecting move that some previous nominees used and say look, this is business that is likely to come before the court -- I can't even discuss it even when I have written opinions about it at my appellate level?

KATHLEEN SULLIVAN: Well, the Democrats are certain to try to probe whether Judge Alito is as Sen. Schumer said today outside the mainstream, the label that was attached to Judge Bork in his unsuccessful nomination in 1987. They do that by relying on statements in 1985 in which Judge Alito said he was personally opposed to the constitutional right to abortion, the permissibility of race preferences in affirmative action, and even one person, one vote.

But he will be able to deflect that easily saying that was 20 years ago, I was a lawyer, not a judge, so the Democrats will also try to probe whether he is outside the mainstream in the decisions and the sense he has rendered in his 15 years on the Third Circuit as a judge. And they will try to focus, as they signaled today, on some of the more extreme decisions like Congress doesn't have the authority under the commerce clause to ban the possession of machine guns, which Sen. Feinstein focused on, or that he would have upheld a strip search, rather invasive strip search of the wife and daughter of a suspected drug dealer.

Or famously that he dissented from a decision of the Third Circuit that the Supreme Court later affirmed, in which the Third Circuit said women shouldn't be forced to ask their husbands permission to have an abortion and Judge Alito said he would let Pennsylvania pass that law.

So the Democrats will try to show that perhaps those past decisions are outside the mainstream but I think Judge Alito will be able to respond, and if he does this effectively it will put some of these Democratic challenges to rest by saying he was working as a craftsman within the latitude left him by the Supreme Court.

So where I think the Democrats really have an opportunity to ask him questions that are important to contemporary debate is on the executive power question and ask the questions not about what might come before him, but what he thinks is the right approach to constraining executive power, one where --

RAY SUAREZ: Let me get -- let me use the time I have left to get a response to some of those points from Bruce Fein.

BRUCE FEIN: First with regard to executive power, there is much said that since Sam Alito was in the executive branch and he did write memos supporting a strengthening of supporting executive power against congressional encroachment, which was a serious problem at the time of President Reagan, not today, that, therefore, he is likely to uphold presidential assertions in fighting the war against terrorism.

But historically that is not true. For example, Justice Scalia, who is viewed as a conservative justice and served in the executive branch as well before his service on the U.S. Supreme Court and the famous Hamdi case said the president did not have power unilaterally to detain an illegal combatant. Congress had to suspend the writ of habeas corpus.

Robert Jackson was an attorney general under Franklin Roosevelt and yet as a justice struck down Harry Truman's seizure of a steel mill during the Korean War. So there isn't any easy translation from someone serving in the executive branch and defending presidential powers at that time and then later on as a justice finding that separation of powers prevents a president from overstepping his bounds.

With regard to the -- this particular area where the Democrats are likely to question Alito, certainly they will always try to claim that he is outside the mainstream. That has been a claim that the Democrats have made every time a Republican is sent up to the Supreme Court since Judge Bork. And I think it simply loses its credibility these days because all of these calamities that are alleged to ensue if we didn't have -- if this particular individual was confirmed like we would go back to Jim Crow days, we would have back alley abortion. They would never happen on that score.

And I think if the Democrats simply hit on these particular narrow case law issues, they will lose and Alito will sail through at least sixty or sixty-five votes.

RAY SUAREZ: Guests, thank you both.

JIM LEHRER: Still to come on the NewsHour tonight: Replacing DeLay; and eliminating pensions.

FOCUS - LEADERSHIP BATTLE

JIM LEHRER: What next for House Republicans, Margaret Warner has our story.

MARGARET WARNER: In a letter delivered to House Speaker Dennis Hastert on Saturday Texas Republican Tom DeLay announced he would no longer try to reclaim his position as House Majority Leader. DeLay had stepped down temporarily from the post in September after being indicted on charges of violating Texas political finance laws.

On Saturday he spoke to reporters in his home district.

REP. TOM DeLAY: I asked Speaker Hastert to convene the House Republican Conference as soon as possible as -- for the purpose of electing a new majority leader.

You know, serving in that capacity through the trust and confidence of my colleagues in the House has been a really great honor these last three years. But the job of majority leader is too important to be hamstrung by personal distractions.

In the 21 years I have been in Congress I have always acted in an ethical manner within the rules of the House and the laws of our land, and time once again will bear out that truth.

(Applause)

REP. TOM DeLAY: I am still a candidate for re-election this November. And I plan to run a very vigorous campaign. And I plan to win it.

MARGARET WARNER: And for more on why Tom DeLay did this and what comes next for the Republican majority in Congress we turn to veteran Congress watcher Norman Ornstein of the American Enterprise Institute.

Welcome back, Norm.

NORMAN ORNSTEIN: Thanks, Margaret.

MARGARET WARNER: First of all, the Tom DeLay we just saw, not exactly a chastened fellow; was this a free choice on his part, or was he pushed?

NORMAN ORNSTEIN: He was pushed very hard, he resisted for some time but the beginning of the end occurred towards the end of last week when a number of Republicans openly pushed a petition to call the conference of Republicans to have a new leadership vote.

You had to do this in public. And once you saw fifteen or twenty out there accepting this notion, they needed fifty signatures, it was very clear that the election was going to take place, and he would not be the winner.

MARGARET WARNER: Now DeLay has been radioactive on the ethics front for awhile, given indictments and the censures by the House committee. What was the catalyst that pushed him over? Was it the Abramoff scandal?

NORMAN ORNSTEIN: I think you have to say it was the Abramoff scandal. He has had a bad couple of days. Actually, the other thing that happened today is that the highest court in Texas ruled that his trial would go forward and wouldn't necessarily be done in an expedited way.

But that trial involving the finance charges in Texas was now superseded or has been superseded by this array of developments in the Jack Abramoff case.

It includes a reality that many of the people in the constellation around Jack Abramoff were the closest aides to Tom DeLay. And there are lots of things --

MARGARET WARNER: Or former aides.

NORMAN ORNSTEIN: Or former aids -- many things that occurred right within the majority leader's office.

We have nothing at this point that ties Tom DeLay directly to illegal conduct through Jack Abramoff, but if we were moving in the direction where DeLay and his office were going to be tied so closely to this, there was no way he could stay the leader.

MARGARET WARNER: And so what you are saying is Republicans who are facing re-election in November just decided this was too heavy a political burden?

NORMAN ORNSTEIN: There is enormous unease in Republican ranks, and even panic in some cases over how far the scandal will spread and how much they, even if they have had nothing to do with it, will end up being dragged down by it. So they want to get some distance from it.

MARGARET WARNER: Now explain to us why actually this job is so important? After all, there is already a top Republican in the House and that is the speaker. When Newt Gingrich held that job, he was considered the head of the Republicans.

Why is the majority leader post so important, did Tom DeLay make it so important?

NORMAN ORNSTEIN: Tom DeLay had an awful lot to do with that. The fact is the speaker of the House is an officer of the United States. He is elected by the entire body. He represents the entire body, even if he is, in fact, the top figure of the majority party.

We then have party leaders who really are there to push the party program, to bring coherence, to decide what the priorities are.

Speaker Hastert is actually a pretty strong figure. But he has not been the dominant figure in the House. Tom DeLay has been the driving force. And remember since George Bush became president, coming in with a five-seat majority out of four hundred and thirty-five in the House, they have had remarkable unity to make a program go through.

It's operated almost like a House of Commons. And he has been the major force there. A lot of his members are grateful for that, but there are also hard edges that come when you push people into a coherence that doesn't fit their own ideology.

MARGARET WARNER: He didn't get the nickname "The Hammer" for nothing.

NORMAN ORNSTEIN: Yes.

MARGARET WARNER: All right, so there are two announced candidates: Roy Blunt of Missouri, John Boehner of Ohio, neither exactly household names.

What is important to know about them, what is really the contrast between them, and is the race between them about anything or is it simply a clash of personalities or loyalties?

NORMAN ORNSTEIN: It is more personalities than anything else right now. And both have been veterans in the House and veterans in the leadership. Roy Blunt of Branson, the area around Branson, Missouri, has been the acting majority leader, before that was the majority whip, basically picked for the post by Tom DeLay and he has been a top lieutenant there.

He is well liked. He is a very warm person in a lot of ways but of course has the problem at this point that he is attached to a leadership structure whether he is Tom DeLay's closest friend or not, and he's not particularly, he is now a candidate of the establishment.

John Boehner is also a veteran. He was one of the famous "Gang of Seven" who joined with Newt Gingrich when the Democrats were in the majority to try and push for change, and helped to bring about the first Republican majority in 40 years in 1994. He was rewarded at that point by being introduced into the leadership as chairman of the Republican Conference, voted by his colleagues.

But four years later, when there was widespread discontent, he was ousted from that position. He has since licked his wounds a little bit but reemerged as a chairman of the major committee, Education in the Workforce. They are both conservatives, but they are not doctrinaire conservatives.

And now the question is whether you get somebody outside the leadership a little bit but is still more or less an establishment figure or somebody who has been inside in an establishment figure.

MARGARET WARNER: But now when the Abramoff case sort of split open last week, when Abramoff pleaded guilty, the super lobbyist, there were voices, conservative voices, former Speaker Gingrich, Times columnist David Brooks who said, you know, this isn't just about changing that one job, that the problem isn't DeLay, it's DeLayism, and I think David Brook's line was it is DeLayism, the whole culture that merged K Street with the Hill.

And they talked about Newt Gingrich has said you need fundamental reform, we need a clean sweep, we need a reform bill that bans lobbyists-paid travel or hiring spouses, lobbyists hiring spouses of members.

Is anyone running on a platform of dramatic change like that? And if not, why not?

NORMAN ORNSTEIN: At the moment, not. And one of the puzzles here is why we do not have an announced candidate who is outside the establishment structure but also reflects to some degree the discontent that the stronger conservatives have felt with this culture which has been more concerned in their view with maintaining power than pursuing principles.

And of course, the focus is especially around two things: One was the Medicare prescription drug bill, that famous bill we discussed before, the three-hour vote that now is trillions of dollars in cost and an expanded entitlement.

The other was that famous transportation bill with large amounts of spending, a question of whether you change the basic way of operation. You have to believe that these two candidates are going to have to inch in that direction.

But there are others outside there including John Shadegg, a more conservative younger member from Arizona, who is looking into the possibility of a race as well.

MARGARET WARNER: All right. And vote to come on Feb. 2.

NORMAN ORNSTEIN: Yes.

MARGARET WARNER: So much campaigning to come. Norm, thanks.

NORMAN ORNSTEIN: Sure, Margaret.

FOCUS - PHASING OUT PENSIONS

JIM LEHRER: And finally tonight, a look at the big changes going on with companies and pensions and to Jeffrey Brown.

JEFFREY BROWN: IBM, long a leader in can finding the relationship between companies and employees in American corporate life last week became part of a new trend, ending its traditional pension plan. The company announced it will freeze its current plan as of January 2008. Pension benefits accrued before then will not be lost, so current retirees will not be affected.

But after 2007 employees won't gain additional benefits. Instead, IBM plans to strengthen its 401k plan for its nearly 120,000 U.S. employees. The company says the move will save almost $3 billion a year.

Traditional pensions are called defined benefit plans and provide a guaranteed retirement income usually based on years of service or earnings. By contrast, 401ks are defined contribution plans. Employers withhold a certain percentage of salary and employees decide how to invest it. Some firms match employee contributions. Traditional pension plans are partially backed by the government, 401ks are not.

In recent years companies in a number of distressed industries have announced they were unable to fulfill their pension obligations. In 2003, for example, employees at the failing Weirton Steel plant in West Virginia saw their pensions taken over by the Federal Pension Benefit Guaranty Corporation.

That left many longtime workers like Charlie Mitchel scrambling to make ends meet. NewsHour correspondent Tom Bearden spoke to him last October.

CHARLIE MITCHEL: They took away approximately 25 percent of the pensions, plus you lost your health-care benefits that now we have to pay for. And that is a chunk of money that you were planning on for your retirement years.

I mean back to work now, have to work probably until I'm 65 now. You know, and I was hoping that I would be able to just piece things together.

Yeah, I'm bitter.

JEFFREY BROWN: Lou Schorsch, the CEO of the company that took over Weirton, said the plant's survival depended on cutting personnel and manufacturing costs in an increasingly competitive market.

LOU SCHORSCH, CEO, Mittal Steel USA: Weirton has been kind of beating the odds for more than 20 years. I think the main focus at the moment has to be on other ways that we can make this more competitive. I know they are work on a program to try to achieve higher levels of productivity. We'll certainly be looking at facility investments and so on. I don't think there are any guarantees in this marketplace. We have to do the best we can on the things that we control.

JEFFREY BROWN: Overall today just 13 percent of workers have a traditional pension plan as their sole retirement, compared with about 60 percent in the late 1970s. And now even well off companies are making the -- in recent months Verizon, Lockheed Martin and Motorola have all announces freezes on their pensions plans.

JEFFREY BROWN: And for more on what these pension changes might mean for U.S. Workers and their companies, I am joined by: Karen Friedman, policy director for the Pension Rights Center, an employee and retiree advocacy group; and by James Klein, president of the American Benefits Council. It considers pensions from the employers' point of view, and lists both IBM and Verizon as clients.

JEFFREY BROWN: Karen Friedman, starting with you, what do you see as the significance of IBM, Verizon, some other big companies announcing these freezes?

KAREN FRIEDMAN: Well, it's certainly a dangerous precedent. Here you have two profitable companies that are announcing that they are freezing pensions; and we've heard over the last two weeks since Verizon first froze its plan from hundreds of workers who are saying things to us like this is a devastating situation. We feel like we've been kicked in the stomach. We feel like it is a death in the family -- because these workers had an expectation and they feel that expectation is broken. They feel betrayed by the company.

Here are people who worked years and years with these companies with the expectations of getting a full pension based on all the years of work, and based on final pay, and suddenly the company is pulling the rug out from under them. They are getting much, for older workers in particular, they are going to end up with thousands and thousands of dollars less than they expected. And they say to us, what are we supposed to do -- this is really unfair.

JEFFREY BROWN: Well, Mr. Klein, why are companies doing it? We've grown used to hearing some companies that are in bankruptcy for having trouble with their under-funded pensions. These are companies that are comparatively well off.

JAMES KLEIN: Yeah, it's really not a new development. Back in 1994 there were about 58,000 of these traditional kind of defined benefit pension plans that your segment talked about. Ten years later there were only half that number in this country -- 29,000 -- and the number has dwindled since then and many, many more who are freezing their plans, not doing away with the plan all together but doing what IBM has done and Verizon has done.

So really that is the much more significant phenomenon that has been going on here in the country for some years. Not what has gotten a lot of attention over the last couple of years, which are also the, what was, identified in the setup piece in terms of a few very severely under-funded plans that pose a risk of terminating and dumping their liabilities on the system. And in those instances, unlike in the IBM situation or other kinds of freezes of this nature, in those instances workers actually are getting less than they might have expected because there were insufficient assets. Here everybody gets what they were promised.

JEFFREY BROWN: But why is it happening? You didn't answer that? Why are companies moving to shift the risk from themselves to their employees?

JAMES KLEIN: Well, part of it is a reflection of the changing nature of the employer, employee relationship and it is just one manifestation of that. Another aspect of it is it has become increasingly more difficult to sponsor these plans.

There is, I have a lot of member companies who tell us, you know, we sponsor a pension plan; we expect it to be a very expensive proposition. We don't have a problem with that. What we do have a problem with is the unpredictability of not knowing what the new rules are going to be with respect to funding and other things of that nature.

The other piece of it is just a matter of global competitiveness. IBM may be one of the only -- if not the only company in its industry that ever even had a pension like this. So the fact that they held on to it for as long as they did was really quite remarkable.

KAREN FRIEDMAN: From the point of view of employees, they look at this as just an out and out betrayal, especially IBM employees. IBM last year froze its plan for new workers. And they said at the time, you know, we're committed to our defined benefits system; we're committed to our defined benefit plan.

And now workers are calling us and saying, you know, the company isn't keeping its promises to us.

JEFFREY BROWN: Do you think that the workers really think of this as a promise from the time they were hired until they retire?

KAREN FRIEDMAN: We are getting letters from management employees. We just got a letter recently from a single mom who said to us that when she took the job, Verizon said you are not just getting wages from us, are you also getting a pension.

And there is an expectation that as long as they meet their end of the bargain, they do their work, their loyal to the company the company is healthy, that the company is going to meet their end of the bargain.

What's different about IBM and different about Verizon is these are leaders in their industries. These companies can well afford their pension plans. And workers really do feel like they are going to end up with much, much less. In fact, what is -- Jim is right. People are going to get exactly what they earned as of the date of the freeze. But workers are going to end up losing thousands and thousands of dollars of expected benefits if the plan had continued.

And that's what people have stayed with the companies for. So you know, they're feeling like, especially with Verizon and IBM, these have been companies that should be leading the way to the top, not leading the race to the bottom.

JEFFREY BROWN: Let me pick up on this, the promise --

JAMES KLEIN: As Karen knows, one thing that she and I do agree on is the value of these defined benefit pension plans. We have been working certainly tirelessly to keep them alive.

At the same time, you know, I may have an expectation that I am going to get salary increases for each year that I work. But it isn't necessarily enshrined anywhere that that is going to happen. There are still are about half of the workers in this country who participate in no plan whatsoever.

And while I think it is certainly ideal if a company finds itself to be able to sponsor both one of these types of traditional plans as well as a 401k plan, they are designed to do different kinds of things, the realities of the business marketplace may not make it possible for some companies to continue to provide it.

The real issue is: How do we achieve retirement income security? And therefore we need to focus on ways to make sure that these 401k plans and other kinds of plans that have for years now been succeeding these defined benefit plans do an even more robust job of ensuring --

JEFFREY BROWN: Actually that is something I wanted to go to, because I'm curious on the follow-up. You have companies telling us that they are moving towards 401k. Partly they are giving their employees more ownership of our retirement. We have the responsibility to invest. Are employees doing that? Is the message getting through? Are companies training their employees well enough to do that?

JAMES KLEIN: Not as much as we all would like to see it happen. On the other hand there are some positive movements afoot; there are efforts to try to ensure that people get more education and advice; there are things that are being done to try to import features of a traditional defined benefit pension plan into these retirement savings plans.

There is no question about it that the defined benefit plan offers certain security. But we shouldn't also overlook the fact that there are many moderate income individuals in this country who literally have become millionaires through participation in their 401k plans.

So you can have a less generous pension and a very favorable 401k plan. But you need, we need to have features in this country making it a criteria for graduating high school or college that will there be a certain level of financial literacy.

JEFFREY BROWN: All right. Karen Friedman, what --

KAREN FRIEDMAN: Well, let me respond to that in two different ways. First I want to go back to the whole situation of IBM. IBM is saying that we're freezing the plan but we're putting in this very generous 401k plan for our employees.

But I was just reading in the New York Times today, by an economist, there is no way that that new plan is going to meet -- make up for the expected losses that thousands and thousands of older employees of that company are going to be faced with.

And so while 401k plans are good as supplemental plans, they were never meant to be the whole plan that people used to save for retirement. So what we are seeing is over the last ten to twenty years a gradual move or gradual shift from these good traditional pensions that provide employer-paid benefits, that employ a guarantee stream of income to this do it yourself society.

Well, at the same time that's happening we are asking people to save more for their retirement, we are asking them to save for their education. We are asking them to save for health care. How much can individuals save? Right now just to put this into perspective, the median account balance of 401k plans in this country is $15,000. And the median account balance for those between 55 and 65 is only $23,000.

So while 401k plans are great as supplemental income plans, while we should be encouraging people to save, what we fear is that if we let these good traditional plans die, which we hope is not going to happen by the way, people are going be to be left without adequate income. So it is a huge social policy issue --

JEFFREY BROWN: We just have twenty or thirty seconds.

JAMES KLEIN: Karen, there shouldn't have to be a do-it-yourself approach. I 4i there is a shared responsibility among government, employers and individuals. People are going to have to rely more on their own wherewithal under the reality of the way that the system is changing. But there is a lot that can be done through public policy changes to help (a), make these 401k plans even more successful than they have been in terms of accumulating wealth, and (b) helping people make better decisions to the extent they will have to take on a greater responsibility.

JEFFREY BROWN: Okay. James Klein, Karen Friedman, thank you both very much.

KAREN FRIEDMAN: Thank you.

JAMES KLEIN: Thank you.

RECAP

JIM LEHRER: And, again, the major developments of this day: Senate confirmation hearings opened for Supreme Court nominee Samuel Alito; 29 Iraqis died in suicide attacks in Baghdad. And Israeli Prime Minister Sharon began breathing on his own. Doctors also reported limited signs of brain activity, following his stroke last week.

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

JIM LEHRER: We'll see you online, then tomorrow at 9:30 A.M. Eastern Time, with our coverage of the Alito hearings, and again here tomorrow evening. I'm Jim Lehrer. Thank you and good night.