The NewsHour with Jim Lehrer

JIM LEHRER: Good evening. I'm Jim Lehrer. On the NewsHour tonight, our summary of the news this day; then, what happened today in the presidential campaign, with Susan Page of USA Today; opening day Supreme Court arguments over sentencing guidelines with Jan Crawford Greenburg of the Chicago Tribune; the judicial appointments issue in the presidential campaign, as seen by Ted Olson and Eleanor Acheson; a report from Washington state on antiwar activism by military families; and some legacy memories from the works of actress Janet Leigh and photographer Richard Avedon.

NEWS SUMMARY

JIM LEHRER: Car bombers struck twice more today in central Baghdad, and U.S. planes hit back again. The Baghdad attacks killed more than 20 people, wounded more than 100. The first blast erupted just outside the heavily fortified green zone, home to the U.S. embassy and Iraqi government buildings. A second bomb targeted a convoy near several major hotels. In Fallujah, U.S. warplanes went after terrorists loyal to Abu Musab al-Zarqawi. Hospital officials reported at least 11 people killed, including women and children. U.S. and Iraqi forces recaptured the city of Samarra over the weekend. The Iraqis warned Fallujah could face a similar assault. On the hostage front, kidnappers claimed they killed two more captives today, one Turk and one Iraqi. They said the men were spies. But two Indonesian women were freed by their abductors today. They'd been held since last Thursday. Eight people kidnapped with them are still missing. The U.S. military announced today two more U.S. troops were killed in Baghdad on Sunday, and four American soldiers were charged today in the death of an Iraqi general last fall. He allegedly financed attacks against U.S. forces. The accused soldiers are based out of Fort Carson, Colorado. In Afghanistan today, U.S. officials and international observers said all is ready for Saturday's presidential election. The U.S. ambassador said efforts to disrupt the process will fail. The head of a European election team said the vote will not be perfect, but he said it's not realistic to expect that.

ROBERT BARRY: What is important, it seems to me, is that the election is now going to take place and I think from the basis of what we have seen and heard from our people in the field, in general it looks like the preparations have been well conceived and that the operation will be ready to go on the 9th of October.

JIM LEHRER: More than ten million Afghan citizens have registered for the election. In the U.S. presidential campaign today, Democrat John Kerry promised more federal funding for stem cell research. He said the president's limits on such funding have denied hope to sick Americans. Later, President Bush signed a bill to keep alive three middle- class tax cuts and renew others for business. It will cost $146 billion over ten years. We'll have more on the campaign right after this News Summary. A former general was officially declared the winner today in Indonesia's presidential race. Final returns showed he won last month's runoff with more than 60 percent of the vote, over incumbent President Megawati. The vote was Indonesia's first direct presidential election. The U.N. Security Council called an emergency session today over Israel's military offensive in Gaza. Arab countries demanded the council condemn the operation. Israeli forces moved into northern Gaza nearly a week ago to stop Palestinians from firing rockets. So far, at least sixty-three Palestinians and three Israelis have been killed. A privately funded manned rocket plane soared to the edge of space today, and captured a $10 million prize. "Spaceship One" took off from a desert runway in Mojave, California, strapped under a carrier plane. Later, it dropped free, fired its rockets, and flew to an altitude of 62 miles, at nearly three times the speed of sound. The plane returned to the ground after 90 minutes. Brian Binnie was the pilot. He said he hopes others will go where he's been today.

BRIAN BINNIE: It's a fantastic experience and it culminates when you... the motor shuts down and you realize that you're no longer encumbered, there is a darkness outside the windows and it is contrasted starkly by this bright pearl, that is the greater California area, which is the view from up there.

JIM LEHRER: Under the rules, "Spaceship One" had to make two flights into space in the span of two weeks. The prize is meant to encourage private space ventures, and even space tourism. The Nobel Prize in medicine went to two Americans today for their research on the sense of smell. They are Richard Axel, at Columbia University in New York, and Linda Buck, at the Hutchison Cancer Research Center in Seattle. They discovered receptor proteins in the nose that recognize odors and signal the brain. Axel and Buck will share more than $1 million in prize money. The U.S. Supreme Court opened its new term today, hearing arguments on federal sentencing guidelines. At issue is whether a defendant's right to a jury trial is undermined when judges, not jurors, make critical sentencing decisions. Existing rules let federal judges increase sentences at their discretion. The Supreme Court has already struck down similar guidelines in state courts. We'll have more on this story later in the program. On Wall Street today, the Dow Jones Industrial Average gained more than 23 points to close above 10,216. The NASDAQ rose 10 points to close at 1952. Actress Janet Leigh died yesterday in her Beverly Hills home. She'd suffered inflammation of the blood vessels. Leigh was best known for her role in "Psycho," Alfred Hitchcock's 1960 thriller. She also appeared in "The Manchurian Candidate" and "A Touch of Evil." Janet Leigh was 77 years old. We'll have more on her career at the end of the program. Between now and then, the latest in the presidential campaign; the new Supreme Court term; the politics of judicial appointments; and antiwar military families.

FOCUS CAMPAIGN DAY

JIM LEHRER: Kwame Holman begins our campaign coverage.

KWAME HOLMAN: At the YMCA in downtown Des Moines, Iowa, the president invited hundreds of supporters to witness him sign an extension of three middle- class tax cuts that were set to expire in January.

PRESIDENT GEORGE W. BUSH: Overall, 94 million Americans will have a lower tax bill next year, including 70 million women and 38 million families with children.

KWAME HOLMAN: The campaign's decision to promote the president's fourth tax cut in four years comes at a time when polls show the race for the presidency in a statistical dead heat. A Newsweek poll taken Friday and Saturday has Sen. John Kerry ahead 47 to 45 percent, reversing the lead President Bush held in mid-September. A USA Today/CNN/Gallup Poll taken Friday through Sunday has the two candidates deadlocked at 49 percent. Last week, the president was up eight points in that poll. With each campaign looking for an edge, two new strongly worded ads began airing this weekend nationwide on cable television and in select local media markets. The Bush-Cheney ad criticizes Sen. Kerry for saying in Thursday's debate that a preemptive U.S. military strike must meet a "global test."

AD SPOKESMAN: So we must seek permission from foreign governments before protecting America? So America will be forced to wait while threats gather?

President Bush believes decisions about protecting America should be made in the

Oval Office, not foreign capitals.

KWAME HOLMAN: The Kerry-Edwards campaign fired back with its own ad, disputing the Bush campaign's interpretation of the senator's remarks.

AD SPOKESMAN: George Bush lost the debate. Now he's lying about it. This is what you heard John Kerry really say.

AD SPOKESMAN: The president always has the right for preemptive strike. I will hunt and kill the terrorists, wherever they are.

KWAME HOLMAN: On the campaign trail today, however, the focus was on domestic issues. Sen. Kerry touted his support of stem cell research at a rally in Hampton, New Hampshire. He was joined by actor Michael J. Fox, who has Parkinson's Disease.

SEN. JOHN KERRY: One hundred million Americans, more than six hundred thousand of them-- your neighbors-- suffer from illnesses that could one day be treated with stem cell therapy. We know that stem cells could hold the key.

KWAME HOLMAN: Sen. Kerry attacked President Bush for placing restrictions on the use of federal funds for stem cell research.

SEN. JOHN KERRY: So I know that many of us, like Michael, as he just described it to you, take it very personally when three years ago George Bush enacted a far-reaching ban on federal funding for stem cell research, tying the hands of our scientists, driving some of them away from America to other countries, a brain drain so they can go and do the research that they're forbidden to do here; tying the hands and shutting down some of the most promising work on Parkinson's or diabetes or other life-threatening diseases. And because of this ban all across America, we've got people praying every single day for cures that our scientists are limited in their ability to be able to explore without the full strength, the power of federal research, which has proven historically to be so powerful in pushing colleges and universities and laboratories and hospitals towards the finding of cures.

KWAME HOLMAN: And while Sen. Kerry supported extending the middle-class tax cuts, he criticized the president's earlier tax cuts as benefiting the rich at the expense of improving health care and education.

SEN. JOHN KERRY: George Bush thinks it's important to make those tax cuts for people earning more than $200,000 a year permanent. I think it's important to roll that back to where it was under Bill Clinton and invest in health care and education and lower the cost for Americans. That's the choice in this race. (Applause) And what we're going do in my health care plan is every child in America is covered automatically day one. We take over Medicaid from the states, they're going to be covered. (Applause) And I'll tell you what else we're going to do. We're going to make America a place of fairness again. You know that senators and congressmen give themselves the best health care in the world? And they give you the bill. Well, when I'm president-- and it's part of my plan-- we're going to make it possible for any American who wants to, to buy in... you've got to buy in, we're not giving it away, but we're going to make it possible for you so we expand your choices in the marketplace to buy into the same health care plan that senates, congressmen, and president give themselves. You ought to have that right just like we do.

KWAME HOLMAN: Campaigning this afternoon in Clive, Iowa, President Bush defended all of his tax cuts.

PRESIDENT GEORGE W. BUSH: We've got to keep people's taxes low. We need to make sure the tax relief we pass is permanent. Today I signed a piece of legislation that extended the child credit, marriage penalty and the 10 percent bracket for five more years. (Cheers and applause) And when you help the small businesses, you help the job creators. And when you help the job creators, somebody is more likely to find work. We've added 1.7 million jobs since august of 2003. The tax relief plan is making a difference. (Applause) And there's a difference in taxes in this campaign. There's a big difference. I've lowered taxes and my opponent wants to raise taxes. (Audience boos) You may have noticed, he changes positions quite frequently but not on taxes. (Laughter) during his 20 years in the Senate, he's voted to raise your taxes 98 times. Now, all of a sudden he's saying, well, he's for a middle- class tax relief, except he voted against raising the child credit. He voted against reducing the marriage penalty. He voted against creating a 10 percent bracket, which helps low-income Americans. Plus, he's proposed $2.2 trillion in new federal spending. And so how... he said... they asked him, "How are you going to pay for it?" And he said, "Oh, I'll just tax the rich." We've heard that before, haven't we? If most small businesses pay individual income taxes, and you raise the top two brackets, you're taxing job creators. And that's bad economic policy, to be taxing the people who are creating the new jobs. If you want more jobs, you keep people's taxes low, not run them up. (Applause) If you propose $2.2 trillion, and you only raise a little over $600 billion by raising the top two brackets, there's a gap. (Laughter) $2.2 trillion in spending, a little over $600 billion in revenues raised means you've got to fill the hole. You've got to find additional taxes if you're going to fulfill your promises. And guess who ends up paying? Every time somebody out of Washington makes the promises and falls short of being able to raise the revenues, they're going to tax the middle-class every single time, aren't they?

KWAME HOLMAN: This was the president's 17th visit to Iowa this campaign season. He'll be back in Washington tomorrow, to spend the day preparing for his second face- to-face meeting with John Kerry Friday night in St. Louis. Meanwhile, Sen. Kerry will take his turn campaigning in Iowa tomorrow, then move on to Colorado for two days of debate preparations.

JIM LEHRER: Terence smith has more on the campaign.

TERENCE SMITH: We take a look now at the state of the presidential campaign and tomorrow night's vice presidential debate in Cleveland. We get the perspective of Susan Page, Washington bureau chief for "USA Today." Susan, welcome.

SUSAN PAGE: Thank you, Terry.

TERENCE SMITH: When you're reporting this campaign and looking at it this week, does it look different than last week or the week before?

SUSAN PAGE: It certainly does. We had a situation the previous two weeks where President Bush was pulling ahead. A small but pretty steady lead, eight points in our poll, six points in some other polls. That changed on Thursday night. The debate had the effect that these debates sometimes have, which is to shake up a race. We're now back to the kind of straight up even race that we saw from March until August.

TERENCE SMITH: And do you put this down specifically to Sen. Kerry's performance or President Bush's performance? What's the reaction?

SUSAN PAGE: I think certainly both men's performances played a role in this. Sen. Kerry seemed steady, he wasn't verbose, which can sometimes be a problem for him. He defended his position on Iraq called it consistent and attacked President Bush's handling of the situation in Iraq, said he was out of touch with reality with the growing violence on the ground. That's an argument Democrats didn't make at their convention in retrospect I think they wish they had. President Bush on the other hand I think didn't fare so well. He had a few talking points, he kept returning to them, mixed message for instance, wrong war, wrong place, wrong time. And when you had those cutaway shots to him he looked kind of petulant, fidgety and annoyed. He didn't look presidential.

TERENCE SMITH: When you look at these two new ads, and we just saw them in the setup piece that came out today, what, from your conversations with officials in those campaigns, what's the strategy behind, in effect, re-fighting the debate?

SUSAN PAGE: The terrain that President Bush would like to fight this election on is the war on terror. He has a big advantage over Sen. Kerry when it comes to handing the war on terror. People trust him more; they think he did a good job in the immediate aftermath of the Sept. 11 attacks. He'd like to raise questions about whether Sen. Kerry would be strong enough to defend the nation to terrorists and that's why he ran that ad. You saw the Kerry people fight back immediately with an ad saying his comments were taken out of context from the debate. So they felt the need to push back. But the Kerry people would really prefer to turn now to talking about domestic issues. That's terrain that favors Sen. Kerry.

TERENCE SMITH: Well, that's, indeed, what they did as we just saw on the stumps from today. They are out there; they're talking about important domestic issues. You say that plays to Sen. Kerry's strengths?

SUSAN PAGE: That's right. Sen. Kerry has an advantage. People think he'll do a better job handing the economy. If you look at President Bush's vulnerabilities, they come in the area of job creation: The loss of manufacturing jobs in some of the big battleground states like Ohio; health coverage: A million more Americans lacking health coverage now. These are issues that haven't gotten the attention that they usually do in a presidential election. We've been talking about foreign policy, national security not so much about pocketbook issues, the Democrats would like to change that now.

TERENCE SMITH: This comes from your polls. It shows the there's greater strength?

SUSAN PAGE: That's right. When Sen. Kerry was really under fire, he lost that advantage in our poll in handing the economy. He had that back in the poll that we had in the paper this morning. That's critical for his prospects to win the election. Our poll shows that President Bush, though, still has a big advantage, 17 points, when it comes to handing the war on terror and a smaller advantage, seven points, when it come handling the war in Iraq.

TERENCE SMITH: Now, of course, the war in Iraq may very well be a topic tomorrow night when the vice presidential candidates gather in Cleveland and have their one and only debate. What do you... first of all, how important is it? Normally vice presidential debates are not considered campaign changers. Is it more important this year?

SUSAN PAGE: I think it's more important for two reasons: One is Dick Cheney is no ordinary vice president. He's been very important player inlaying policy.. especially when it comes to the war in Iraq and the war on terror. That's one reason. Another is Republicans really feel the need to change the dynamic of the race from Thursday s debate. They would like to see Vice President Kerry Cheney rise and press some of these questions about Sen. Kerry....

TERENCE SMITH: Vice President Cheney?

SUSAN PAGE: Vice President Cheney raise questions about Sen. Kerry and they think actually that while John Edwards is a very effective speaker that he may be a little disadvantaged. He has been less effective in attacking the top of the ticket on the other side.

TERENCE SMITH: So you would anticipate Vice President Cheney then going after the man who's not there, John Kerry?

SUSAN PAGE: I think it's... somewhat called it a debate in the third person and I think that's right. It doesn't really matter whether you like John Edwards or dick Cheney better. It matters what you think about the men at the top of their tickets. That's what will determine people's votes in the end.

TERENCE SMITH: And for Sen. John Edwards? What does he have to accomplish?

SUSAN PAGE: Well, I think Sen. John Edwards needs to look like he has a grasp of policy, this that he has gravitas. That's a word we throw around for these debates, sometimes. He is just a first-term senator so the burden for him, I think, is to show that he can effectively be on a stage with a very experienced person and the incumbent Vice President Dick Cheney.

TERENCE SMITH: And the format, the two of them sitting with the moderator, Gwen Ifill, at a table, does that favor one or the other?

SUSAN PAGE: I think it may favor Vice President Cheney. John Edwards is a very dynamic guy. When you see him campaigning, as we both have, he walks around the stage, he embraces an audience. Dick Cheney is a much lower-key speaker. But he's very effective in the kind of conversations like you and I are having now. When he's on Meet the Press" he has been a very effective communicator. So I think it's a good forum for Vice President Cheney.

TERENCE SMITH: Susan Page of USA Today, thank you very much.

SUSAN PAGE: Thank you, Terry.

JIM LEHRER: A reminder the NewsHour will have complete coverage of tomorrow night's vice presidential debate, moderated by our own Gwen Ifill, beginning at 9:00 Eastern Time. Still to come on the NewsHour tonight, another Supreme Court opening argument; a Supreme Court politics argument; antiwar activism by military families; and Leigh and Avedon.

FOCUS NEW TERM

JIM LEHRER: The Supreme Court argument over sentencing guidelines, and to Ray Suarez.

RAY SUAREZ: It s the first Monday in October, and the beginning of a new U.S. Supreme Court term. There has been a great deal of confusion in the court system over the guidelines ever since last June. That s when the Justices struck down a Washington State sentencing law. That decision called the future of federal guidelines into question. Here to help us sort through today's arguments is NewsHour regular Jan Crawford Greenburg of the Chicago Tribune. Jan, help me out here because the last or one of the last big decisions on last term was on sentencing guidelines. Why did there have to be so soon a revisit of that issue on an expedited basis to open this year's term?

JAN CRAWFORD GREENBURG: Because that decision, as you said, involved a state sentencing guideline in Washington caused chaos in the lower federal courts. At the time, the Justices decided by vote of 5-4 that the Washington sentencing scheme was unconstitutional but dissenting Justices in that case predicted that it would also doom the federal sentencing guidelines as well, because they operated in much the same way. So we get the ruling, it comes down and right away in lower courts across the country lawyers are going in asking for re-sentencing hearings and arguing that the federal sentencing guidelines also must fall. Some courts decided the issue one way, other courts decided it another. So the Supreme Court stepped in and in August said that it would decide this issue very quickly to clear up all this confusion.

RAY SUAREZ: So the stage is set. Who was pleading today? On whose behalf were the arguments being made?

JAN CRAWFORD GREENBURG: Well, this pits defendants who are arguing that the sentencing guidelines are unconstitutional as applied to them, against the United States which argued that the sentencing guidelines should remain in place despite that ruling back in June. Now, the United States lost in the lower courts, and there are two cases before the Supreme Court today and in those two cases, the lower court said that the June ruling caused it to find the sentencing guidelines on the federal level unconstitutional, and the problem with the sentencing guidelines at the federal level are the same that the Supreme Court found back in June.

RAY SUAREZ: Well, what is the impairment? What was the flaw in the use of sentencing guidelines that the Supreme Court has found that's created the ripple all through system?

JAN CRAWFORD GREENBURG: The guidelines require judges when they're sentencing a defendant to find certain facts that never were before a jury. The Supreme Court in June said that was unconstitutional under a Washington State statute. Defendants argued today that the federal guidelines operate the same way, so that, too, should be unconstitutional, because it deprives them of their right to a jury trial under the Sixth Amendment. They argue that because a judge can consider these facts, facts that never were before a jury, such as the amendment of the drugs that they had in their possession, whether or not they were a leader of an organization the ring leader, those kind of facts, that a judge will decide can significantly enhance their sentence you should the sentencing guidelines. And as a result, that's unconstitutional because they've been deprived their right to a jury trial. The jury should have to make those decisions, the defendants argue.

RAY SUAREZ: So in the face of those arguments, what did the Justices want to hear about and what did that show about their thinking on the matter?

JAN CRAWFORD GREENBURG: Well, this decision, like I said, was 5-4 when the Justices took up the Washington State statute back in June and I didn't see anything today that suggested that those five Justices, a very unusual group of Justices, by the way, kind of combining the most conservative Justices, Scalia and Thomas, with the most liberal Justices, Justice Souter and John Paul Stevens and Justice Ginsburg, that those five were prepared to walk away from what they said in June. So as a result it looks like we may have a decision from this court that says they believe that the sentencing guidelines are unconstitutional, have constitutional problems. But it was very unclear from the arguments today what the Justices were going to do about that, whether or not they were going to strike down part of the guidelines, whether they were going to say that... "let's just let juries make these decisions, not judges" that's unclear. That s a very difficult problem for the court. We should get a decision pretty quickly because of the problems it caused in the lower courts.

RAY SUAREZ: But if they make this decision and basically stand by what they said in June, just as a question of mechanics rather than the law, does that open up an appeal possibility for everyone who's been sentenced based on sentencing guidelines?

JAN CRAWFORD GREENBURG: Not everyone. But certainly people who feel their sentences have been increased because a judge under the sentencing guidelines-- and this is the manual-- because a judge under these guidelines considered facts that the jury never heard, the amount of drugs, whether or not they were a ringleader and based on those facts turned to the guidelines and used those facts to dramatically increase the defendant's sentence. Now, keep in mind, there are 1200 people sentenced to crimes in federal court every week. So, of course, this could have a dramatic impact on federal sentencing. And the sentencing guidelines have been in place since 197, this is a tremendous... it's impossible to overstate the significance of this case and what the court does in terms of our criminal justice system.

RAY SUAREZ: We have a brief amount of time left. What are some of the other interesting cases that the judges have agreed to hear this term?

JAN CRAWFORD GREENBURG: We can keep it on criminal justice because, you know, last term we heard a lot of cases involving the war on terror. This term the court is going to look at domestic law enforcement. We had the sentencing argument today. Next week the court will decide whether state and federal governments can execute juvenile killers -- people who are 16 and 17 years old when they commit murder. In 1988, the court said that people under 16 could not be executed under the Constitution. Now they'll decide if those who are 16 and 17 years old can be executed or whether that, in fact, violates the Constitution's Eighth Amendment concern against cruel and unusual punishment. So that should be a case I think we should all watch from the criminal area. They've got several interesting criminal cases on the docket: One involving the use of drug-sniffing dogs during routine traffic stops. That case comes out of Illinois. The court also will return to a theme that has captivated the Justices, the balance of federal and state power. That's a pretty complex topic that fascinates law professors but this term it has real-world implications. One case out of California will decide whether the federal government can prosecute people for using marijuana for medical purposes. The state says people can use drugs for those reasons, the federal government has come in to prosecute, so pretty significant issues.

RAY SUAREZ: Jan Crawford Greenburg, thanks for being with us.

JAN CRAWFORD GREENBURG: You're welcome.

FOCUS SUPREME COURT

JIM LEHRER: And now, speaking of the Supreme Court, the presidential campaign debate about the judiciary, Margaret Warner has that.

MARGARET WARNER: The nine Justices who took their seats at the U.S. Supreme Court this morning have been together for ten years. That's longer than any previous modern court. With four of the Justices now over 70, the next president could well have the chance to name one or more new ones. In addition, there will be the chance to further shape or reshape the rest of the federal judiciary. President Bush has already appointed 201 appellate and district court judges in his first term, nearly one-fourth of the federal bench. For a look at the judicial stakes in this election, we're joined by two former Justice Department insiders. Theodore Olson was the solicitor general until last July, arguing the Bush administration's position before the Supreme Court. Eleanor Acheson was assistant attorney general in the Clinton administration. Among other things, she was in charge of screening judicial nominations. Welcome to you both.

Now, it seems to me we hear this every four years and every campaign, the future of the Supreme Court is at stake. It was said in the 2000 election President Bush has not had the chance to anymore anyone. How certain is the legal community, really, that there will be openings for the president to fill, Ms. Acheson?

ELEANOR ACHESON: Well, if one... if you consider that the same discussion was had about the same nine Justices as they advance, as we all advance in the aging process and the process of thinking about doing other things with their lives, I think that it is really pretty certain that in the next four years at least one and possibly more than one, possibly as many as four Justices may choose to leave the Supreme Court or have to for reasons beyond their control. Wishing no one ill health or worse, it does certainly look like we've come to the point where all of this talk-- and there has been in at least two cycles-- may truly come to pass. And it is very important.

MARGARET WARNER: And in terms of looking at the potential impact, does it matter, Mr. Olson, who retires? In other words... of course it also matters who's president but it matters who's being replaced, does it not?

THEODORE OLSON: Well, of course it does. There are only nine Justices and so one Justice's vote may make a difference. And it may be a Justice that has a more liberal streak or a more conservative or someone in the middle like Justice O'Connor. It could be a chief Justice. Chief Justice Rehnquist has been on the court for 32 years. That's eight presidential terms, if I have my arithmetic right. The average tenure of these nine Justices on the court is eighteen and a half years, so that whoever leaves and whoever replaces the person who leaves can be expected to be on the court for a long time. That's a lot of important decisions affecting a lot of aspects of American life.

MARGARET WARNER: And would you say, Ms. Acheson, that also all these appointments to the lower federal courts which don't get a lot of attention in fact have a huge lasting legacy for a president?

ELEANOR ACHESON: They absolutely do. You know, one thing I think very few people understand is that the entire federal bench is only 870 some, 880 judges, the nine Supreme Court Justices and then 180 plus court appeals judges and the rest are federal trial court judges. And when you think about the number of opinions, the number of decisions that are made, Jan Crawford Greenburg just made the point that 1,800 1200 or 1800 sentencing decisions are made a week in the federal system. Well, beyond that, there are infinite... well, not infinite but many, many civil decisions and so forth. Some of those are appealed and then a very few number of those actually get to the Supreme Court. And most of those are public law cases, not that many of them are private law cases. And it's just extraordinary the impact that the lower court judges have, the trial court judges not just for their decisions but the impression that is made upon jurors and upon litigants, how the administration of justice is handled and then the courts of appeals.

MARGARET WARNER: Many of the courts of appeals are the last word

ELEANOR ACHESON: They are.

MARGARET WARNER: -- because the cases don't end up at the Supreme Court.

So Theodore Olson, if you're looking at the issues that are really at stake that could be decided judicially and if a voter were trying to decide between the Kerry ticket and the Bush ticket, what are the issues that really are at stake?

THEODORE OLSON: Well, in the first....

MARGARET WARNER: Judicially.

THEODORE OLSON: One of the things that must be said is that most of the things that the Supreme Court does are relatively uncontroversial. A good percentage of the Supreme Court decisions are unanimous or 8-1, they have to do with bankruptcy laws or security laws or antitrust laws -- all of those things. So we must bear that in mind. The things that you read about are the rights of the persons accused of crimes, privacy rights, people talk about abortion or marriage or children or child bearing or sexual relationships or contraception, environmental issues, things of that nature are the ones... or civil rights, the rights of people that are disadvantaged for one reason or another. Those are the types of cases that you hear about the most and those are the types of cases where the Justices tend to split on a 5-4, 6-3 margin from time to time based upon, you know, their own perspectives that they bring to the court. So those are the ones that I think that people need to be concerned about in connection with the Supreme Court appointments.

MARGARET WARNER: And how dramatically different would you think George Bush appointees would be from John Kerry appointees on issues like that?

THEODORE OLSON: Well, it's impossible to say and Justices have a way of deciding to be their own person when they get on the Supreme Court. Of the more liberal Justices-- so-called liberal Justices on the court-- over the last 50 years, many of them were appointed by Republican presidents: Justice Brennan on the present court, Justice Stevens, Justice Souter, Earl Warren and so forth. So you can't say how they're going to vote. But it does matter, you know, what people's ideas that... that they bring to the court do have an effect on their decisions.

MARGARET WARNER: What would you say is at stake? What would you add or subtract?

ELEANOR ACHESON: I would add to a t list that Ted Olson just offered with which I would agree with everything he just said, but I would also add to this area of federal/state relations or let me put it this way -- the role of Congress to legislate and for the protection of American, American workers, civil rights issues, over the rights of states. And this has been an issue which when academics talk about it, it sounds very dry as a federalism kind of issue. But implicated in that are absolutely critical protections that the Congress has passed like the Youth Gun Protection Act that was struck down, the federal law that prevented people....

MARGARET WARNER: Guns close to schools.

ELEANOR ACHESON: from carrying guns close to schools. And one can go on and on. For a while this court was really changing the entire contours of the ability of Congress to legislate in that regard and those kinds of protections. So I would add that to the list. And without, you know, saying... because I don't know any more than Ted Olson does about how in the end it will all work out, but I do think that one can look at two things and come to the conclusion that appointments by President Bush to the Supreme Court would be very different than those by President Kerry. One is the no more Souters refrain that has come without missing a beat from some of the leaders of the Republican legal establishment which... and they do not mean by that more Ruth Ginsburgs. I think there s a strong and deep feeling that Justice Souter was not what they expected he would turn out to be and I think we can look at some of the very controversial... I think there are about ten of them appeals court nominees that the Democrats have stopped from becoming confirmed... from being confirmed by the Senate for the reasons that they believe these people are activists out of the mainstream.

MARGARET WARNER: This is what you hear ,Theodore Olson, from partisans on the Democratic side, that if President Bush had the chance to name someone to the Supreme Court, it would be someone very ideological, very conservative, definitely antiabortion. I know it's hard to predict, but do you think that's the case?

THEODORE OLSON: I think what the president has said over and over again, it's the judicial philosophy. He intends to appoint, if he has the opportunity, people that regard their role as judges to be limited to the role of judging and not take authority away from the executive branch or the authority that the Constitution grants to the legislature itself. When judges make laws, they become impossible to change through legislature. When something's grafted on to the Constitution, the people's right to select representatives who will represent them in Congress is taken away.

MARGARET WARNER: But in practical terms, if you are a voter sitting out there, what would that mean for issues you care about?

THEODORE OLSON: Well, in the fist place, democracy. It will fact that we have a representative government, the more things that you take off the table, the more prison it is judges decide to run, the more schools that they decide to run, the more things that judges decide to do elected representatives can't have an authority to change. That's one of the concerns. There should be a balance, and I think that's the point that President Bush has made. There should be that proper balance between the legislative, executive, and judicial role that the Constitution ordained. And too much power in judges is not good.

MARGARET WARNER: Very briefly. You've both been extremely reasonable here. But do you think the right to an abortion is at stake in this election?

ELEANOR ACHESON: I think it very well could be. I do not agree with my friend Ted Olson on what I think the president would do. I think it's pretty clear he would seek out appointees in the court who would be committed to....

MARGARET WARNER: Overturning "Roe V. Wade"?

ELEANOR ACHESON: Overturn "Roe versus Wade".

THEODORE OLSON: I think this is read meat that people throw out there: "Roe versus Wade," "Roe versus. Wade."

MARGARET WARNER: You mean both sides?

THEODORE OLSON: Well, I don t think so much on the one side because the court has dealt with that issue three or four times. I think that probably is not going to change no matter who gets appointed.

MARGARET WARNER: All right. We have to leave it there. Thank you both.

ELEANOR ACHESON: Thank you.

FOCUS HOMEFRONT BATTLE

JIM LEHRER: Now, some military families speaking out against the war in Iraq. Lee Hochberg of Oregon Public Broadcasting has the story.

LEE HOCHBERG: Antiwar protesters have rallied every week in Seattle since the Iraq War began. Largely, they're members of the established peace movement, but lately they've been joined by new demonstrators: Family members of those fighting the war.

VICKY MONK, Military Parent: I'm not opposed to war, all war. But what I am opposed to is the irresponsible use of the military, which I believe is what happened in the Iraq war.

LEE HOCHBERG: Vicky Monk hopes her son is home soon, after what she says have been 15 harrowing months for him, with the army's1st Armored Division in Baghdad. She and other military families are lashing out against a war they first believed was against Iraqi weapons of mass destruction, but now say is meaningless.

VICKY MONK: When the army itself admitted they were unable to find the weapons of mass destruction, my son began to question, "Why am I here? Why do I have to continue to be here?" So, I feel a certain amount of responsibility, as his mother, to stand up and say, Why did you send my son to war? Why did you put my son in harm's way?

LEE HOCHBERG: The more commonly seen face of military families is like these, at a "Support the Troops" night at a Seattle Mariners baseball game. ("Taps" playing) For them and most military families, supporting the troops has also meant unwavering support for President Bush and the U.S. military mission in Iraq.

SPOKESPERSON: He's going to be serving at least 12 months past the time he was supposed to be retired.

LEE HOCHBERG: But as U.S. military deaths in Iraq have risen past 1,000 with an end nowhere in sight, some parents and spouses of soldiers have taken public their growing opposition to the war.

MOTHER: My son was in the army. He was killed Feb. 3 of this year.

REPORTER: How?

MOTHER: How? You tell me --

LEE HOCHBERG: This mother, whose son was killed in Iraq, protested last month at a New Jersey campaign appearance of First Lady Laura Bush.

MOTHER: Go ahead. Come on. Arrest me -- right here in front of everybody.

LEE HOCHBERG: She challenged the first lady's assertions that the war is going well. She was handcuffed and arrested for trespassing.

MOTHER: Excuse me! What are you charging me with? Excuse me!

LEE HOCHBERG: Other families have lain memorials for fallen relatives outside the White House fence in somber protest. Such resistance from military families didn't happen in previous wars, according to historian Michael Beschloss.

MICHAEL BESCHLOSS: We're seeing something that really is unusual because military families in history have been pretty much inclined not to do this sort of thing. It's in a way sort of part of that culture. And the fact that they are doing it now shows how deeply many of them feel about the fact that they were never convinced at the beginning of this war that it was the right thing to do.

NANCY LESSIN, Military Parent: It was our loved ones who were going to go, and we felt that, in fact, they were going to be used as cannon fodder.

LEE HOCHBERG: Sixteen hundred military families have joined under the banner of "Military Families Speak Out." The group was founded by Nancy Lessin and Charley Richardson of Boston. Their son, Joe, a marine, was deployed to Iraq in what the pair saw as a war for oil. Lessin's group attracted other families when she used the Internet to call for a full troop withdrawal. Thirty of the members have lost loved ones. Others were worried about extended deployments, inadequate equipment and post-traumatic stress disorder. All had been afraid to go public.

NANCY LESSIN: There are so many that have bought into what this administration is trying to sell, which is in order to be patriotic, in order to support the troops, you have to support the war. It is absolutely possible to support the troops and oppose the war.

CHARLEY RICHARDSON, Military Families Speak Out: The people who made the decision to take us into this war aren't giving up their loved ones to this war. We are, and our voices are important.

LEE HOCHBERG: Their message has resonated among some families with longtime military backgrounds. In rural South Bend, Washington, lay pastor Lietta Ruger used her church pulpit to assail President Bush for misleading America.

LIETTA RUGER, Military Family: I am a military family. We are a military family. I speak out in support of the troops, by bringing them home and ending this war that we know is a product of lies.

LEE HOCHBERG: Ruger's son-in-law and nephew are in the 1st Armored Division in Baghdad. Her husband, Arthur, and her father, were in the Air Force.

LIETTA RUGER: I am not from the peace movement. I am not Jane Fonda on the street. I am not a leftover '60s protester. I am a military brat, wife of a veteran. But Vietnam taught us something. We have to do critical thinking when we give permission for our country to go to war.

LEE HOCHBERG: The Rugers say their son-in-law doesn't object to their criticism of the war. He shared his thoughts with us by phone, requesting we shield his identity.

SON-IN-LAW: To go to war on the basis that we went to war on, I don't agree with that. And then to get lied to by the president. We know people are speaking out against the war, not against us. We're not dumb. We know.

LIETTA RUGER: He said, "Mom, it's wrong here. We're not doing anything. We're hurting, we're harming."

LEE HOCHBERG: Despite her son-in- law's support, Ruger's extended military family has been furious with her stand, and she has been severely criticized over the Internet. Family life also has been difficult for Stacy Bannerman, whose husband left Seattle for Iraq with his National Guard unit in February. Bannerman's life work has been with peace organizations and she has publicly opposed the war from its start.

STACY BANNERMAN: We should be crying about this. We should be. This country should be.

LEE HOCHBERG: But her husband embraces his mission. One evening last month, as she attended a Seattle-area meeting of Military Families Speak Out, he telephoned from Baghdad.

STANCY BANNERMAN: Sometimes I wonder if I'm... am I somehow, in some way, shape or form betraying him? Of course, that's crossed my mind. And yet, how can my wanting to preserve his life and the lives of tens of thousands of others, how could that ever potentially be seen as a betrayal?

LEE HOCHBERG: Some answer that all of the antiwar military families are guilty of betrayal. Outside the church in rural South Bend, Thelma Crawford was critical of Lietta Ruger's antiwar sermon.

THELMA CRAWFORD: You know as well as I that there's terrorists that's living all around us, and all they've got to do is just get a little support and a little momentum and, bing, we're gone.

LEE HOCHBERG: And at a recent "Support the Troops" demonstration outside Seattle, some said even if Saddam possessed no weapons of mass destruction, his removal itself justifies the war. They say military families speaking out undercut the U.S. mission there. Robert Snyder was in the army during the Vietnam era.

ROBERT SNYDER, Veteran: If my family didn't even support me during the 15 years that I was active duty, do you think that would be wrong? That would be wrong. That would hurt me emotionally.

LEE HOCHBERG: Nadine Gulit agrees.

NADINE GULIT, Military Family: You cannot support the troops without supporting the mission that they are on.

LEE HOCHBERG: She has three grandsons in the army, one in Iraq. She says criticism of the military mission emboldens the enemy and puts U.S. soldiers at risk.

NADINE GULIT: When the protesters and the people spoke out against, it's demoralizing and it is a form of treason. Yes, the enemy does use it. They will use it. It builds up their morale.

LEE HOCHBERG: But military families opposed to the war say they are every bit as patriotic as those who support it. They traveled to the nation's capital this weekend to talk to members of Congress and staged a very public demonstration, carrying caskets from Arlington National Cemetery to the White House.

RECAP

JIM LEHRER: Again, the major developments of the day: Car bombers killed more than 20 people in central Baghdad, and U.S. warplanes again hit terrorists in Fallujah. A privately funded manned rocket plane soared to the edge of space and captured a $10 million prize. The Nobel Prize in medicine went to two Americans for their research on the sense of smell.

IN MEMORIAM

JIM LEHRER: And before we go tonight, we remember two people who died in recent days. One made a mark in front of the camera, the other behind it. Arts correspondent Jeffrey Brown has our report.

JANET LEIGH ( Touch of Evil ) My husband is a great big official in the government. Ready and willing to knock out all those pretty front teeth of his.

JEFFREY BROWN: Film actress Janet Leigh had dozens of starring roles, and, over five decades, acted in more than 50 movies, including "The Manchurian Candidate" and "Touch of Evil." But she will forever be remembered for one of the most famous scenes in film history, the motel shower stabbing in Alfred Hitchcock's 1960 thriller, "Psycho." The scene took a week to film, and is built of numerous takes and edits lasting only seconds each. Leigh herself told an interviewer in 2000 that after she saw the final version, she only wanted to take baths in the future. Janet Leigh was nominated for a best supporting actress Oscar for her work in "Psycho." She died Sunday at her Los Angeles home. She was 77.

JEFFREY BROWN: Richard Avedon was one of the world's most famous and respected photographers. He made his mark first with his fashion work, and later for his signature stark black and white portraits, often of celebrity, cultural and political figures, sometimes of unknown drifters. Two years ago, I spoke with Avedon at a retrospective of his work at New York's Metropolitan Museum.

JEFFREY BROWN: You've said a number of times, you say, "all photographs are accurate; none of them is the truth."

RICHARD AVEDON (2002): They're representations of what's there. "This jacket is cut this way": That's very accurate. This really did happen in front of this camera at this... at a given moment. But it's no more truth. The given moment is part of what I'm feeling that day, what they're feeling that day, and what I want to accomplish as an artist.

JEFFREY BROWN: So the old line "The camera never lies"...

RICHARD AVEDON: Camera lies all the time. It's all it does is lie, because when you choose this moment instead of this moment, when you... the moment you've made a choice, you're lying about something larger. Lying is an ugly word. I don't mean lying. But any artist picks and chooses what they want to paint or write about or say. Photographers are the same.

JEFFREY BROWN: Richard Avedon died Friday in Houston, on assignment for the New Yorker Magazine for a piece called "On Democracy." He was 81.

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