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CNN Live Today

Supreme Court to Debate Oregon Right to Die Case; President Bush Speaks About War in Iraq

Aired October 05, 2005 - 10:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

DARYN KAGAN, CNN ANCHOR: Welcome back. I'm Daryn Kagan. Here's a look at what's happening "Now in the News."
Federal officials say they've arrested a major drug kingpin. Agustin Haro-Rodriguez is accused of smuggling about 9,000 pounds of cocaine into the U.S. during the past year. Authorities say they captured him Sunday night trying to cross the border from Mexico into Arizona.

To south Georgia, police have arrested two men in connection with a brutal home invasion last week. In that attack, a man was beaten with a baseball bat and shot; his wife sexually assaulted. Police are looking for possible links to three other attacks at the area trailer parks earlier in the day. At least five people were killed and police say the attackers were apparently targeting Hispanics.

A landmark evolution trial is under way in Pennsylvania. At issue is a controversial decision by the Dover area school board to include the concept of intelligent design in biology classes. Some families have filed suit, saying it promotes the Bible's view of creationism.

Iraqi lawmakers have vowed to pressure from the United Nations and its own Sunni minority. They have restored the original rules for next week's vote on a new Constitution. Last-minute changes had virtual assured the Constitution's approval. Iraqi voters will decide on the passage a week from Saturday.

President Bush is calling on conservatives to trust his judgment on his nomination of Harriet Miers to the U.S. Supreme Court. Our latest CNN/"USA Today"/Gallup poll suggests Americans are still making up their minds about Miers. Forty-two percent have a positive opinion of her, 34 percent are neutral, compared to 54 percent positive and 21 percent neutral opinion of new Chief Justice John Roberts. Both have low negative ratings. On the question of Miers' lack of judicial experience, 10 percent say it makes them more likely to support her nomination. Forty-six percent are less likely. And 42 percent say it doesn't make any difference to them.

The John Roberts era on the U.S. Supreme Court begins with a major case before the bench. It is the emotionally charged issue of assisted suicide. The Bush administration is challenging Oregon's law allowing doctors to help terminally ill patients end their lives.

Here to talk about what's at stake in the case, former U.S. attorney Kendall Coffey. He joins us from Miami this morning. Kendall, good to see you.

KENDALL COFFEY, FMR. U.S. ATTORNEY: Hey, Good morning, Daryn.

KAGAN: So this is a law that went to the voters in Oregon not once, but twice, and passed both times. What happens to the argument of state's rights?

COFFEY: Well, that's what's going to be so fascinating with respect to John Roberts. His mentor, William Rehnquist, was really trying to push forward the role of states, which had been eroded over the years. And, in fact, Rehnquist had dissented in the California medical marijuana case in which federal power was upheld at the expense of state. I think how Roberts comes down on it is going to be critical to how this case is decided.

KAGAN: The ultimate authority to control drugs is the argument on the other side to those that are trying to get this law repealed. The idea that state's rights are fine, but ultimately, the federal government must control what happens with drugs.

COFFEY: Well, I think that has been established, as recently as the medical marijuana case. But one of the fascinating things about this case is, does an administrative agency, like the Department of Justice, have the power where there is no clear congressional statement that controlled substances cannot be used for assisted suicide? Can the attorney general then step in, at the expense of the wishes of the voters of the state, and come up with his own interpretation?

And strikingly, the Ashcroft directive, which is at issue today, is the opposite of the conclusions by the former attorney general Janet Reno, who said this ought to be a matter for the states to decide.

KAGAN: The High Court looked at this type of issue back in 1997, and decided there is no constitutional right to die. But that kicks it down to the states. So now it's kind of coming back around full circle.

COFFEY: And that's why so many have focused on the words of Sandra Day O'Connor in that 1997 decision. She talked about what a personal and agonizing choice many families are going to be confronted with. She talked about the role of the states in deciding this. Many expect that she would support the position of Oregon today, but one of the subplots in this amazing drama is will she actually be part of the court that decides the case?

KAGAN: Well, and let's talk about what goes into that. It's a timing thing, in terms of how quickly this case goes through.

COFFEY: That's right. It's a timing thing. And if, in fact, the opinion is finalized before Sandra Day O'Connor is replaced, then she could be writing, in effect, as part of the last of the many important decisions where she was a deciding vote. If they haven't resolved it by the time Harriet Miers is presumably confirmed, then Sandra Day O'Connor's vote and voice will be erased from this case. KAGAN: You know, interestingly enough about Sandra Day O'Connor, she is a cancer survivor, as well as Ruth Bader Ginsberg and Justice Stevens, as well. The fact that they have personal experience with cancer, but have survived what for many people is a deadly disease, might play interestingly into how this case is decided.

COFFEY: It's hard to divorce one's personal views from this. And of course they all liked William Rehnquist, who went through a losing battle with cancer. And, of course, even though this case pits very conservative legal philosophy in favor of Oregon, from a social standpoint with what's been described as a culture of life, you have the collision between that philosophy and the view that the individuals should have an ultimate right of self-determination. Fascinating collisions, legally. Fascinating collisions, emotionally and morally.

KAGAN: And then, quickly, as a legal eagle, what will you be watching from John Roberts to see how he handles his first major case as chief justice?

COFFEY: If he starts asking about the importance of state's rights, it's mighty good news for Oregon.

KAGAN: All right. We will be watching it. Kendall Coffey, thank you.

COFFEY: Hey, thanks, Daryn.

KAGAN: You know, it's not always easy to see what people think about this issue. New CNN -- lots of polls today -- new CNN/"USA Today"/Gallup polls shows how many of you, asked the question, it makes a big difference. Fifty-four percent of the people said yes, when asked if it was all right to allow doctors to help terminally ill patients end their lives. Forty percent said no. But when asked if doctors should be allowed to help the terminally ill commit suicide, only 46 percent said yes and a slightly bigger percentage, 48 percent, said no. All in how you ask the question.

Judith Miller, the "New York Times" reporter who spent 85 days in jail rather than reveal a source says she wasn't covering for anybody by not talking. A federal grand jury is trying to find out who revealed the identity of a CIA operative to journalists.

Miller tells CNN's Lou Dobbs that she went to jail on principle.

(BEGIN VIDEO CLIP)

JUDITH MILLER, "NEW YORK TIMES": ... the laws, I thought I was better than the law or the law didn't apply to us. I wouldn't have sat there for 85 days to make a political point about principle, and the principle that we journalists have to safeguard the confidentiality of our sources. And it was rather extreme way to make it, but I felt I had to.

If people can't trust us to come to us to tell us the things the government and powerful corporations don't want us to know, we're dead in the water. The public won't know.

LOU DOBBS, CNN ANCHOR: The public is, certainly.

MILLER: The public won't know.

DOBBS: That's why I was sitting in jail, for the public's right to know.

(END VIDEO CLIP)

KAGAN: Miller won her freedom after her confidential source granted her permission to reveal his name. He is Lewis "Scooter" Libby, chief of staff for Vice President Cheney. He claims he gave her that permission long before she went to prison. Up next, arrests at one of the nation's military bases. We'll have the details.

And, overshadowed by Iraq. Four years after the U.S.-led offensive in Afghanistan., some troops feel they're fighting a forgotten war. How they feel about the lack of attention after this quick break.

(COMMERCIAL BERAK)

KAGAN: Earlier this morning, federal officials announced the arrest of three foreign nationals who have been teaching languages at North Carolina's Ft. Bragg. Two Indonesian nationals and a man from Senegal are accused of using false documentation to gain employment there. Special operation officials are saying the men did not have access to classified information, but it's not clear if they learned the identities of their students.

They consider themselves warriors in a forgotten war. They're American troops fighting in Afghanistan and what has become the deadliest year in the post-9/11 conflict.

CNN's Ryan Chilcote has their story from southeastern Afghanistan.

(BEGIN VIDEOTAPE)

RYAN CHILCOTE, CNN CORRESPONDENT (voice-over): The 2nd Battalion of the U.S. Army's 503rd Airborne Infantry went to Afghanistan six months ago expecting a peaceful deployment. They got anything but.

SETH WILLIAMS, U.S. ARMY: You know we're watching the news too, and all the media is focused on Iraq and all of the fighting going on there. So coming to Afghanistan, we were thinking, you know, this is going to be an easy tour, there's not going to be much going on. And then we come here and we start losing guys.

CHILCOTE: Soldiers, like Seth Williams, patrol Afghanistan's Zabul Province, a Taliban sanctuary where the U.S. rarely ventured until this unit arrived. They are trained to move fast. Just 40 minutes after getting intelligence on a wanted Taliban leader, platoon searches these compounds.

UNIDENTIFIED MALE: Come here. Come here now.

CHILCOTE: Others search from the air.

UNIDENTIFIED MALE: Hey, can we cut them off?

CHILCOTE: In their six months here, these soldiers estimate capturing or killing 400 Taliban. But this time do not find the man they are looking for.

WILLIAMS: When it's a dry hole, we're pretty excited to get back and relax, because we've been pretty exhausted.

CHILCOTE: Exhausting and deadly. The battalion lost 7 soldiers in six months, 34 more wounded. But their comrades say few back home even know they're here.

WILLIAMS: When I went home on leave, everyone was just like, yes, how long have you been in Iraq? And I was like, no, I'm going to Afghanistan. You know that's -- I haven't been to Iraq yet. But...

CHILCOTE (on camera): And what is their reaction to that?

WILLIAMS: Their reaction is, well, at least you'll be safe in Afghanistan. Yes.

CHILCOTE: And it's not quite that way?

WILLIAMS: Yes, it's completely the opposite.

CHILCOTE (voice-over): Corporal Kyle Frederixson spent a year in Iraq.

CPL. KYLE FREDERIXSON, U.S. ARMY: Everyone is like, it could be worse, you could go to Iraq. But my experiences so far would indicate that I would rather be deployed back to Iraq than over here, personally.

UNIDENTIFIED MALE: Let's go.

CHILCOTE: This is the deadliest year yet for the U.S. in Afghanistan. More than 50 killed in action since January, in a place and in a war many here say their fellow Americans have all but forgotten.

Ryan Chilcote, CNN, Deh Chopan Valley, Afghanistan.

(END VIDEOTAPE)

KAGAN: Here in the U.S., 14,000 homes built on a swamp. Should the 9th Ward of New Orleans be rebuilt? Or should it just be returned to its original natural state? A look at both sides of that debate when CNN LIVE TODAY continues.

(COMMERCIAL BREAK)

KAGAN: To New Orleans now. First the pain brought on by Hurricane Katrina and now the pain of the aftermath. The mayor says thousands of city workers have to be laid off, even as he encourages residents to come home and rebuild. But in the Lower 9th Ward, a part of the city hardest hit by the storm, there are questions of whether it should be rebuilt at all.

Rick Sanchez takes a look.

(BEGIN VIDEOTAPE)

RICK SANCHEZ, CNN CORRESPONDENT (voice-over): It's Roselind Thomas's first day back home in the Lower 9th Ward, a neighborhood that some experts argue should be done away with.

(on camera): Would you accept the fact that maybe this should not be neighborhood anymore?

ROSELIND THOMAS, NEW ORLEANS RESIDENT: Yes, I can, because the safety of myself and my family is far more important than this piece of ground. This is just geography.

SANCHEZ (voice-over): Geography that many believe should be reverted to its natural state, a swamp.

CRAIG COLTEN, LSU PROFESSOR OF GEOGRAPHY: I think if we were try to recreate the 9th Ward and other parts of New Orleans, for that matter, as they were, they would still face a serious flood threat in the future.

SANCHEZ: The Lower 9th Ward sits in a depression. The land surrounded by higher waters. Canals border it on two sides, while the Mississippi and Lake Ponchartrain border it on the others. It's essentially a flood waiting to happen. That's why some geologists believe this area should be set aside and used as nature intended.

COLTEN: Primarily, setting aside the lowest ground as flood retention bases, that is, areas that can hold water in the event of a future flood, rather than water standing in someone's living room, let it stand in open wetland area.

SANCHEZ (on camera): It's not so much water but muck. It's been a full month since Katrina blew through here, and still, in this particular part of the 9th Ward, this depression is so deep, the water still hasn't receded.

(voice-over): Experts say if you remove the dense housing, paved roads and sidewalks from this area, the ground would have soaked up these waters much sooner, forestalling scenes like this where home after home was moved or destroyed, and car after car was toppled or tossed aside.

So what about adding more fill and making the land higher in the 9th Ward? Geographer Craig Colten says he has looked into that.

COLTEN: You add too much weight and it will simply sink.

SANCHEZ: Each of these red tags means the home is unsafe and will have to be demolished. What then? Why not rebuild, as they did after the earthquake in Northridge, California, or after the Love Canal spill in Upstate New York? And could a decision not to rebuild have to do with the fact that almost all of the people who live here are poor and black?

COLTEN: You need to make decisions not based on class or color or income. But we need to make decisions on topographic safety.

SANCHEZ: It's what residents like Roselind Thomas are now grappling with as she scrapes the muck off her son's picture that she finally made it home to retrieve.

(END VIDEOTAPE)

KAGAN: There are also a lot of people who want to rebuild the 9th.

In our next hour, Randi Kaye profiles those experts.

The numbers are adding up as insurance adjusters tally the damage from Hurricane Katrina. The eye-popping figures just ahead. Also playoff time for Major League Baseball. Many of us are root, root, rooting for the home team. Corporate bosses may not be so thrilled about the playoffs mean to them.

(COMMERCIAL BREAK)

KAGAN: Yankees limp into the post-season, but last night the Bronx bombers returned to form. They beat the Los Angeles Angels 4-2, took a one-game lead in their American League division series. Also winning their first post-season games yesterday, the Chicago White Sox, and in the national league, the St. Louis Cardinals.

That October outbreak of baseball fever is sweeping offices and workplaces across the country. And no matter who wins between the chalk lines, it's the employer who apparently loses on the bottom line. There's this employment firm Challenger, Gray and Christmas (ph). They estimate that companies could lose about $225 million in just 30 minutes of lost productivity. They blame unscheduled absences, early departures, or at the very least, workplace chatter and distractions.

(STOCK MARKET UPDATE)

KAGAN: Let's check the time. 10:53 here in the East, 7:53 on the West Coast. Stay with us. We're back with a quick check of your morning forecast, including snow already falling in parts of the U.S. We have the pictures.

Actress Lindsay Lohan not smiling very much today after a car accident. A check on her condition and what may have been behind the crash, when we come back.

(COMMERCIAL BREAK)

KAGAN: In just a couple seconds here, we're going to see videotape, shot just a few minutes ago in the Rose Garden of the White House. President Bush, appearing along with Defense Secretary Donald Rumsfeld. Also Peter Pace, new chairman of the Joint Chief of Staffs, and General Petraeus, who is the man who was the commander of the Multinational Security and Transition Command in Iraq. Talking about security in Iraq.

Let's listen in to President Bush.

(BEGIN VIDEOTAPE)

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: Just had a briefing from Secretary Rumsfeld and General Pace on our ongoing operations in the western part of Iraq. As you know, we're on the offense against insurgents and terrorists, and we fully understand they intend to disrupt the constitutional process, or will try to do so, as well as stop the progress of democracy. And part of the way the Pentagon and the folks on the ground are going to deal with it is to stay on the offense, and that's what's taking place.

I was also pleased to hear there are 3,000 Iraqi forces in the fight, that they're doing a fine job out there, that they make a difference on the battlefield.

We also have General Petraeus with us, who has served incredibly well in Iraq. His job was to help U.S. forces and coalition forces train the Iraqis so they can take the fight to the enemy.

He briefed me and will be debriefing the country at the Pentagon here a little later on about the strong progress that we're making; that we've recruited a lot of folks, but we've got more than just recruitment going on, we've got a quality control program in place to make sure that the troops we train are capable of taking the fight to the enemy.

Over 30 percent of the Iraqi troops are in the lead on these offensive operations. We've got troops embedded with them, and that's an important part of the training mission. But nevertheless, the Iraqis are showing more and more capability to take the fight to the enemy.

And that's how we're going to succeed in helping democracy become established in Iraq.

I've told the American people all along our troops will stay there as long as necessary. We'll do the job. We'll train these folks. And as they become more capable, we'll be able to bring folks home with the honor they've earned.

And we're seeing progress on the ground. And we're also seeing political progress on the ground. The constitution has been written. Folks will have a chance to vote it up or down here this month.

And then there'll be elections, if the constitution is approved, for a permanent government.

So on the one hand we're making progress when it comes to training Iraqis to take the fight to the enemy. We're bringing the enemy to justice. We're on the offense. On the other hand, democracy is moving forward in a part of the world that is so desperate for democracy and so desperate for freedom.

And so, General, I want to thank you for your service, General Petraeus.

GENERAL PETER PACE (USMC), CHAIRMAN, JOINT CHIEFS OF STAFF: Thank you.

BUSH: Thank you for your service too.

But thank you for your service. You've done a fine job. I'm proud of you.

MAJ. GEN. DAVID PETRAEUS, FMR. COMMANDER, MULTI-NATIONAL SECURITY AND TRANSITION COMMAND-IRAQ: Thank you, sir.

BUSH: I'm proud of you.

Thank you all very much.

KAGAN: The president, not taking any questions in the Rose Garden today, unlike yesterday. He was there to talk about what's happening in Iraq, saying he does expect an uptick in violence in the next few days, as it goes closer to the referendum on the constitution there in Iraq. He says the U.S. military, along with Iraqi forces, are going to deal with that by staying on the offensive.

With more on this, let's bring in our Bob Franken. He's at the White House today -- Bob.

BOB FRANKEN, CNN NATIONAL CORRESPONDENT: And listening very closely to what the president said. We heard him make comments relevant to concerns that have been raised about the unanswered expectations for the number of Iraqi security forces that many had expected to be in place, ready to fight by this time. The president said that a reason for that is that quote, the United States has, quote, "a quality control problem to make sure the troops we train are prepared to take the fight to the enemy." In other words, it's not a matter of numbers, it's a matter of quality, no matter how long it takes.

The other thing the president spoke about, of course, was the election coming up, the referendum coming up in Iraq about a constitution. As we heard earlier, there was a bit of a crisis concerning that when the legislature, for a brief period of time, set up a rule that there would not be a rejection of that constitution, as opposed to the way it had been set up.

There was a quick reversal on that. It has been made clear by administration officials that that reversal came after considerable consultation with the U.S. officials talking to their Iraqi counterparts -- Daryn.

KAGAN: Bob Franken at the White House. Bob, thank you for that. Other news this morning. It is the kind of thing that's not supposed to happen post-9/11. Authorities say three foreign nationals managed to gain unauthorized daily access to a U.S. military base.

Let's go to the Pentagon now and correspondent Barbara Starr. Barbara, good morning.

BARBARA STARR, CNN PENTAGON CORRESPONDENT: Daryn, the story's still emerging, and indeed quite odd. The U.S. attorney for North Carolina has announced the arrest of three individuals, two Indonesian nationals and a man from Senegal. All arrested at Fort Bragg, North Carolina, where they were working as language instructors to Army Special Operations.

These men were hired by a contractor and then sent to Fort Bragg, but when Customs and Immigration officials did a security sweep there, they found these three men, these three contract workers, were working there with illegal employment status, if you will. That their immigration status in the United States had been falsified, that they had showed false documents to gain employment through this contractor. Indeed, two of the men were already in the middle of deportation proceedings by immigration authorities.

All of them now arrested and being processed. They are facing the possibility of criminal penalties, the possibility of jail time, we are told.

Now, there is no immediate indication that they had any intentions other than to be foreign language instructors for U.S. Army Special Operations. But the security breach is of great concern, we are told, because Fort Bragg is a very sensitive facility. It is the home to some of the most classified Special Operations troops in the U.S. military, the home of Army Special Operations. There is no indication yet what type of information, what type of access these men might have gotten -- Daryn.

KAGAN: Barbara, any clue about what tipped off authorities to their status?

STARR: Oh, let's be very clear. Yes, it's very interesting. Federal immigration authorities do, in fact, regularly conduct sweeps, if you will, at sensitive facilities around the United States -- nuclear power plants, shipyards, other military facilities -- because there are a lot of foreign nationals working in these places, a lot of contract workers. And they go through these sensitive facilities and they conduct regular checks to look at the employment status, the immigration status of the personnel working there.

They have in the -- in the past arrested people who are in the United States illegally working at these types of places. But to the best of anyone's recollection, this is the first time that there has been access gained at such a sensitive Special Operations military facility.

So in this case, there is a lot of concern about the security breach, about the contractor who hired these people, and why nobody caught the fact that they were using false documents to gain employment with the U.S. military -- Daryn.

KAGAN: All right. Barbara Starr at the Pentagon.

Barbara, thank you.

Let's go ahead and take a look at what's happening "Now in the News."

Tropical Storm Tammy is now swirling in the Atlantic just off the Florida coast. Tammy is expected to bring heavy rain to Florida, Georgia and the Carolinas over the next few days.

After starting its new term, the U.S. Supreme Court is confronting a divisive issue. The federal government's challenge to Oregon's assisted suicide law is now before the court. Under the law, doctors can give drugs to some terminally ill patients to help them end their lives. The Bush administration says the so-called Death With Dignity Act violates controlled substances laws.

A reputed kingpin of the drug -- of the drug trade from Mexico is now in American custody. Authorities say Agustin Haro-Rodriguez was arrested Sunday night while trying to enter Arizona from Mexico. Later, he was formally charged by federal prosecutors in New York. Authorities say the suspect and his organization smuggled cocaine valued at more than $85 million into the U.S.

Weeks after it struck the Gulf Coast, Hurricane Katrina is taking a heavy toll on the region's financial health. The sheriff of St. Bernard Parish, next door to New Orleans, says he can't make today's payroll for his law enforcement officers. Sheriff Jack Stephens says he has asked the state and federal government for help, but he has heard nothing.

And now the Supreme Court nominee. Harriet Miers is on Capitol Hill again this morning. Face time, you might call it, with senators who will decides whether she gets hired as an associate justice.

Miers met last hour with Vermont's Patrick Leahy. He is the top Democrat on the Judiciary Committee. She also called on Texas Republican John Cornyn.

After a few days of get acquainted time, what do Americans think of Miers? Our CNN "USA-Today"-Gallup poll finds 42 percent have a positive view of her. That compares to 54 percent for John Roberts after he was nominated in July.

More people also had a neutral opinion of Miers than Roberts. Their negatives are about the same.

What about Miers' lack of experience on the bench? Ten percent saying that makes them for more likely to support her. Forty-six percent says less likely. A similar number also says it makes to difference. One Republican senator is now on the record about his doubts with Miers. Sam Brownback of Kansas saying "There is deep concern that Miers could be a Souter-type justice," fighting words for a conservative.

Let's talk more with our political analyst Bill Schneider in Boston this morning.

Bill, good morning.

WILLIAM SCHNEIDER, CNN SR. POLITICAL ANALYST: Good morning, Daryn.

KAGAN: First, let's explain the disappointment that comes for conservatives in the David Souter appointment.

SCHNEIDER: David Souter -- you mean Harriet Miers I think.

KAGAN: No, no, no. When they call her -- when they call her a Souter type, they're afraid she's going to be a Souter type.

SCHNEIDER: Oh.

KAGAN: Yes. The background on that.

SCHNEIDER: When -- OK. Good question.

KAGAN: Yes.

SCHNEIDER: When President Bush's father appointed David Souter, he assured conservatives that he believed David Souter would be a staunch conservative. Now, he did not know Judge Souter. He was actually the attorney general in New Hampshire. But he was told by his chief of staff that Souter was a reliable conservative.

Souter got on the Supreme Court, and over the years he's proven to be really a moderate and sometimes liberal on most issues. And that has enraged conservatives.

And their view now is, we don't want another David Souter, we don't someone whose views are unknown, who doesn't have an established record. This is a swing vote on the Supreme Court. That's what Sandra Day O'Connor was. They want someone who will definitely move the court to the right.

Now, Bush has one argument which he made yesterday at his news conference. It's a very telling argument.

He says he knows Harriet Miers. He's known her, she's worked with him for over 10 years. He did say this, but his father did not know David Souter personally very well. So Bush is saying to conservatives, trust me, I know this woman, she will be a reliable conservative.

KAGAN: Well, and that personal relationship is bringing up other questions as well. The idea of the president's personal attorney sitting on the Supreme Court, you wonder about her being independent or any kind of loyalty that she would have to him.

SCHNEIDER: Well, I think...

KAGAN: And then there's this issue of the documents that the Democrats would like to see of, you know, what she's been doing the last six years in the White House.

SCHNEIDER: Well, the Democrats, those documents are White House documents. They can claim, may claim executive privilege. They won't release them.

Democrats say they should release them. They're going to pressure for the White House to release them because that's all they have to go on.

She doesn't have even the record of Judge Roberts. When he was confirmed as chief justice, he had a limited record as a judge, but he did have writings and opinions on constitutional issues.

This nominee really doesn't have anything like that kind of paper trail. So Democrats say the White House should be willing to give up more documents so that they know something about this woman's legal philosophy.

KAGAN: Let's look at the support that President Bush has in the Senate. Fifty-five Republicans, that doesn't give you a ton of wiggle room if some decide that they have a problem with this.

SCHNEIDER: That's right. He can't afford to lose many conservatives who have been alarmed, dismayed. Some are saying betrayal, because they don't know enough about this woman, that she will move the court in the direction that they want.

He won't get, I think, most Democrats. He split the Democrats in the nomination of John Roberts. My guess is it'll be tough to get even 22 Democratic votes for Harriet Miers. We don't know. A lot is to be found out about her.

The question is, can he hold the conservatives in line? This is a test of Mr. Bush's loyalty to him among his conservative base.

He's saying to the conservatives, trust me, I know this woman, you can support her. He even made a remarkable statement yesterday. He said in 20 or 30 years she's not going to change her views.

I don't know how he knows that. David Souter appeared to change his views. And, of course, we know that Harriet Miers has changed her views when she undertook a religious conversion some years ago.

So she did change her views once before. President Bush says it's not going to happen once she gets on the bench.

KAGAN: Bill Schneider.

We're glad we were able to track you down in Boston, Massachusetts. Thank you, Bill. SCHNEIDER: Sure.

KAGAN: Let's check in upstate New York today. Investigators going over the Ethan Allen at a hangar today. Safety experts will try to recreate what may have happened aboard that tour boat on Sunday.

They are using a twin vessel. It's filled with weights equal to the passenger load. Those weights will be shifted suddenly to see if the boat tips. Twenty elderly sightseers died when the Ethan Allen capsized.

(BEGIN VIDEO CLIP)

JIM HALL, FMR. NTSB CHAIRMAN: There are simulations that the board can do, both in terms of actual simulations on the water, as well as computer modeling and computer simulations that can be done in the National Transportation Safety Board laboratories in Washington, D.C., that can give them an indication of what could have caused the capsizing of this vessel.

(END VIDEO CLIP)

KAGAN: Investigators also want to figure out if too much weight was on the boat, given Americans are now heavier than a generation ago, when standards were set.

The risk of bird flu. Why this disease already has the U.S. thinking about a possible pandemic.

Plus, how fast could this disease really spread? How many people could be affected? Our Dr. Sanjay Gupta compares bird flu to another deadly flu.

And a growing debate in New Orleans. Should the devastated 9th Ward be rebuilt? A closer look just ahead.

(COMMERCIAL BREAK)

(STOCK MARKET REPORT)

(COMMERCIAL BREAK)

KAGAN: This just in to CNN. The U.S. Supreme Court just wrapping up hearing arguments in the case of assisted suicide in Oregon. This would be the first major case for the new chief justice, John Roberts.

With more on all of this and the question, can doctors help you end your life if you are terminally ill, let's go to Kathleen Koch -- Kathleen.

KATHLEEN KOCH, CNN CORRESPONDENT: Daryn, very pointed arguments today in the Supreme Court. You could certainly get a sense from -- of where the various justices were coming from.

What was at issue here was not whether or not assisted suicide is right or wrong, but really, whether or not the federal government under the Controlled Substances Act, which was really aimed at regulating drug abuse, has the right to stop physicians from prescribing a lethal dose of medication to terminally ill patients. That's the practice that is in question here and has been acceptable in the state of Oregon since 1997, that for any terminally ill patient with just six months to live and also who is found to be mentally competent.

And the justices raised some very interesting questions inside. Sandra Day O'Connor asking, well, if you can prohibit this as being disallowed under the Controlled Substances Act, then could you also say that a doctor who was -- who was helping with someone who had been convicted and was given the death penalty, would that then be illegal as well, would that person be violating the Controlled Substances Act if that person -- if a doctor was giving them a lethal injection?

Very interesting questions. And also very interesting emotions. Strong emotions outside the court here amongst protesters on both sides, some who support the law and others who oppose it.

(BEGIN VIDEO CLIP)

CAROL CLEIGH, MEMBER, "NOT DEAD YET": Well, it promotes the ideology that if you need help that that's undignified. And it promotes the idea that people that need help would be better off dead. And we don't believe in that.

(END VIDEO CLIP)

(BEGIN VIDEO CLIP)

CHARLENE ANDREWS, TERMINALLY ILL PATIENT: It's our choice when we know there's no way the law can be misused. We are terminal, and we know when we just have a few weeks left.

(END VIDEO CLIP)

KOCH: And one argument that was made by the state of Oregon was that, in their mind, the federal government does not -- does have the ability to regulate the specific drugs, but not the use, not the medical practices. The chief -- one of the justices, Antonin Scalia, asking, "So, in other words, acceptable medical practices are what are acceptable medical practices state by state?" And the attorney for the state of Oregon agreed -- Daryn.

KAGAN: Kathleen, any way of knowing the timetable on when this ruling might come down?

KOCH: Unclear, Daryn, on that. But again, this is a very controversial case, a very divisive case, something that the justices will certainly take ample time with.

KAGAN: Kathleen Kennedy -- Kathleen Koch -- sorry. Thank you.

KOCH: You bet. KAGAN: We're going to -- later this hour we're going to introduce you to a terminally ill Oregon man. He wants to use the death with dignity law to end his life.

The financial base is in ruins from Hurricane Katrina, and now the city of New Orleans is laying off as many as 3,000 workers. Those layoffs were announced by Mayor Ray Nagin. About half of the city's workforce will be effected.

(BEGIN VIDEO CLIP)

MAYOR RAY NAGIN (D), NEW ORLEANS: I wish I didn't have to do this. I wish we had the money and the reserves, and we had the financial backing to not do this.

This is horrible. I mean, a lot of these people lost their homes. But, you know, we've been dispersed. And people are finding jobs. So it's my hope that they will land on their feet, you know, and it won't impact them too negatively.

(END VIDEO CLIP)

KAGAN: The layoffs take effect on Saturday. The mayor says they mainly will effect workers with nonessential administrative jobs.

In New Orleans flood-ravaged 9th Ward, there are many fears for the future. There are also a lot of storm victims who are hoping to rebuild their shattered neighborhood.

That story now from CNN's Randi Kaye.

(BEGIN VIDEOTAPE)

RANDI KAYE, CNN CORRESPONDENT (voice-over): What Katrina didn't wipe out in New Orleans' Lower 9th Ward, the bulldozers might. Five weeks under water, the majority of the 160,000 Louisiana buildings deemed uninhabitable after the hurricane are here, red tagged by firefighters for demolition. Now, it's decision time for the 14,000 people who lived here before the storm. Rebuild, or raze?

HAROLD ROBINSON, 9TH WARD RESIDENT: All can do is pray to God that there will be another day.

KAYE: Harold Robinson grew up in the 9th Ward in the projects.

(on camera): Some people feel that because the 9th Ward has a reputation of being somewhat of a ghetto, they think it's not worth rebuilding. What do you think about that?

ROBINSON: Oh, well, what they say is what they say. But I know this, this is where I was born and raised, and I've got to give it a chance.

KAYE (on camera): The decision whether to demolish the Lower 9th Ward and let it become what it was in the beginning, wetland, may have more to do with race than geography. It is mostly below sea level. Some say it isn't safe to live here anymore, already rebuilt once after Hurricane Betsy 40 years ago. But others call Katrina an excuse to do away with this predominantly African-American crime-ridden poverty-stricken community.

SHIRLEY DUMAS, 9TH WARD RESIDENT: We are on these houses, we've been here for years. And we just don't want to see it just go away, just vanish.

KAYE: Shirley Dumas and her husband lost their home in the 9th and everything in it. They wonder why there's talk of letting their neighborhood go while other flooded parts of the city are restored.

DUMAS: We can look at Saint Bernard Parish, which is primarily all white. Are they going to rebuild Saint Bernard Parish? OK, then if they rebuild Saint Bernard, we expect them to do the same for the 9th Ward.

KAYE: If the Lower 9th Ward were to be turned into a wetland, as one proposal suggests, what would become of this living museum? Fats Domino was born here, 6-year-old Ruby Bridges first integrated the all-white William Frantz School here back in 1960, and Jackson Barracks, built before the Civil War, now home to the Louisiana National Guard.

An Upper 9th Ward city councilwoman tells CNN it should be all brought back and every homeowner should be given the same consideration. Residents we spoke with seemed more concerned about history than science and safety.

(on camera): Why do you think the 9th Ward should be rebuilt? What here is worth saving?

ALAN FONTENELLE, 9TH WARD RESIDENT: It's historical, all this area. This was founded 200 years ago. I'm not going to let them tear my house down. I've got to go clean it out and make -- at least, I'm pulling out stuff. I'm looking like I'm doing something. They can't just tear you down.

KAYE (voice-over): New Orleans Mayor Ray Nagin promises a full assessment before anything is destroyed. Back at his boyhood church, Harold Robinson is praying that's true.

(on camera): What would you do if this home wasn't around anymore and it was under water?

ROBINSON: Well, I guess I'll feel like I'm on Gilligan's Island soon.

(END VIDEOTAPE)

KAGAN: And that report was from CNN's Randi Kaye in New Orleans' 9th Ward.

Now we are focusing on Tropical Storm Tammy, which is swirling in the Atlantic. We'll have the latest on what that storm is expected to do. That is coming up when CNN LIVE TODAY returns. (COMMERCIAL BREAK)

(WEATHER REPORT)

KAGAN: Getting ready for an outbreak. Speaking of problems, concerns about a possible bird flu pandemic. We're going to talk to the doctor about whether we are really at risk when CNN LIVE TODAY returns.

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