captioning sponsored by newshour productions, llc >> woodruff: good evening. i'm judy woodruff. >> o'brien: and i'm miles o'brien. >> woodruff: on the newshour tonight: >> we knew it was coming, from like, two years ago, when mr. trump first started to run for president. >> woodruff: the trump administration rejects reports of internal confusion over the controversial immigration order. >> o'brien: also ahead this tuesday, we ask a key question: does the temporary ban make us safer? >> woodruff: and, the nation awaits mr. trump's pick to fill the almost year-long vacant seat on the supreme court. >> o'brien: all that and more, on tonight's pbs newshour. >> major funding for the pbs newshour has been provided by:

>> xq institute. >> bnsf railway. >> lincoln financial-- committed to helping you take charge of your financial future. >> and with the ongoing support of these institutions: >> this program was made possible by the corporation for public broadcasting. and by contributions to your pbs station from viewers like you. thank you. >> woodruff: president trump is preparing to take up the next

big item on his agenda tonight: revealing his nominee to fill the vacancy on the u.s. supreme court. he will address the nation at 8:00 p.m., eastern time. it is widely reported that two federal appeals court judges, neil gorsuch and thomas hardiman, top the list of candidates. the announcement comes amid the uproar over mr. trump's immigration moratorium, and a high-level ouster at the justice department. john yang begins our coverage. >> reporter: a night of plitical drama at the white house gave way to a day of defending president trump's actions. white house press secretary sean spicer: >> for the attorney general to turn around and say "i'm not going to uphold this lawful executive order" is clearly a dereliction of duty. and she should've been removed, and she was. >> reporter: acting attorney general sally yates, an obama appointee, was fired after directing justice department lawyers not to defend the president's immigration order. "at present," she wrote them,

"i am not convinced that the defense of the executive order is consistent with my responsibilities, nor am i convinced that the executive order is lawful." spicer insisted justice's office of legal counsel did find the order lawful. >> that doesn't sound like an attorney general that is upholding the duty that she has sworn to uphold. at the end of the day, the attorney general either had a problem with her own division approving something-- but it wasn't the president she had an issue with. the president followed the process. >> reporter: meanwhile, homeland security secretary john kelly dismissed reports he was kept in the dark about the immigration order. >> i knew this was under development and i think we were in pretty good shape in how it was implemented by the workforce. >> reporter: "the new york times" had reported kelly was not fully briefed until the order was being signed on friday, and that defense secretary james mattis was not consulted until just hours earlier. >> from day one, in terms of the inauguration, finishing touches,

i would have to put it that way, were being put on the executive order. as i say, high level folks in the government, attorneys as well, were part of that. people on my staff were generally involved. >> reporter: but the acting commissioner of "customs and border protection," kevin mcaleenan, conceded today the order's implementation could have been better. >> communications, publicly and inter-agency, haven't been the best in the initial rollout of this process. we have communicated with the department of state now and these guidelines will be on our website. >> reporter: mcaleenan said his agency had to create a waiver process for green card and special visa holders after the order took effect. at the capitol, house speaker paul ryan said top republicans weren't briefed until the executive order was being signed. >> i think it's regrettable that there was some confusion on the rollout of this. no one wanted to see people with green cards or special immigrant visas, like translators, get caught up in all of this.

>> reporter: press secretary spicer dismissed reports that the handling of the immigration order created tensions with g.o.p. leaders. and amid the furor, the president spent most of his day in meetings. this morning, he urged executives from major pharmaceutical companies to cut prices. today, the white house also said the president will continue president obama's order barring discrimination by federal employers and contractors based on sexual orientation and gender identity. for the pbs newshour, i'm john yang at the white house. >> woodruff: the president also faces another legal challenge tonight. san francisco has files suit against his order on so-called "sanctuary cities." it cuts off federal aid to cities that shelter undocumented immigrants. >> o'brien: in the day's other news, senate democrats forced delays on three of the president's cabinet nominees. the judiciary committee had planned to vote on republican senator jeff sessions to be attorney general. instead, the committee meeting grew contentious in the wake of last night's firing of the

acting attorney general. >> we clearly saw what a truly independent attorney general does. i have no confidence that senator sessions will do that. instead, he has been the fiercest, most dedicated, and most loyal promoter in congress of the trump agenda. >> everyone on this committee, be they republican or democrat, knows senator sessions to be a man of integrity and a man of his word because we know him to be a man of his word. we know that he will uphold and enforce all laws equally. >> woodruff: meanwhile, democrats on the finance nominees steve mnuchin to be treasury secretary and tom price for health and human services.

the nominee for secretary of education, betsy devos, squeaked through the senate education committee. it was 12 to 11, down party lines. but two republicans, lisa murkowski of alaska and susan collins of maine, warned, they still have serious concerns. >> i was surprised and concerned about mrs. devos's apparent lack of familiarity with the landmark 1975 law "idea" that guarantees a free and appropriate education for children with special needs. >> she has not yet earned my full support, and when each of us have the opportunity to vote aye or nay on the floor, i would not advise that she yet count on my vote. >> o'brien: three more cabinet nominees advanced to the full senate today for confirmation votes. the energy committee approved montana congressman ryan zinke as interior secretary, and former texas governor rick perry as energy secretary. and, the small business committee endorsed linda mcmahon to run the small business

administration. meanwhile, elaine chao was sworn in as transportation secretary, shortly after being confirmed by the senate. >> woodruff: our lisa desjardins has spent much of the day at the capitol, watching the to-and-fro over president trump's cabinet choices. and she joins me now. lisa, welcome. so what is the strategy behind the democrats' tactics in slowing down, delaying these nominations? >> the truth is, it depends on each committee. as you reported earlier, it seems the ones most indefinitely dlaitd are steve mnuchin and tom price. we don't know when thrael come up for a vote. democrats say they want to talk to them again. they want more answers to questions. at the same time, jeff sessions looks like he'll get a vote tomorrow. but all this delay in the end might not matter. it's really things like you report on, on betsy devos. do they have enough republican votes to be confirmed. >> woodruff: so how are the

republicans responding to this? >> they say this is bad acting on the part of democrats. they say this is democrats being sore losers, in the word of one republican. but on the other hand, democrats say they are playing hardball, and that they are reacting to president trump's refugee order. they say that he is now unleashing a new kind of aggressive executive power that they are reacting to in the senate. >> woodruff: and, lisa, how are the republicans dealing with that? and does it have implications for the supreme court nominee coming? >> i didn't get a lot of answers from republicans tonight as to how can they get these nominees to the senate floor without going through some of these committees. they say they're work it, but the truth si don't know of a way they can do it without democratic votes. so that's to be determined. but i think in the end, it's a political calculus on both sides, and the supreme court nominee will be a huge factor in this. republicans are, in a way, daring democrats to try and block the supreme court nominee. democrats seem to be ready to do it. we'll see if republicans, as john mccain told me tonight

are, willing to change the vote count to only 50 votes for a supreme court nominee. they say they're open to that at this point. >> woodruff: well, that would be a story for all of us to cover. lisa desjardins, thank you. >> o'brien: in eastern ukraine, heavy new fighting has erupted, with at least eight people killed overnight. ukrainian troops and russian- backed rebels dueled with artillery and rockets on the outskirts of donetsk. it appeared to be the worst shelling in many months, and it briefly trapped hundreds of coal miners underground. ukraine's president blamed moscow: >> ( translated ): our servicemen are successfully defending positions. the only restriction is when criminals, russian rebels, deploy artillery systems, tanks and multiple missile rocket launchers in residential areas. we have clear evidence of that. >> o'brien: the ukrainian military and russian-backed rebels each blame the other for launching the offensive. >> woodruff: back in this country, the boy scouts of america now says it will accept

transgender children who identify as boys. in a statement last night, the organization said its existing approach is "no longer sufficient, as communities and state laws are interpreting gender identity differently." the girl scouts organization has accepted transgender members for years. >> o'brien: tonight marks the deadline for americans to sign up for health insurance under the affordable care act. it affects 39 states served by healthcare.gov. states with their own insurance websites set their own deadlines. president trump and congressional republicans have promised to repeal and replace obamacare. >> woodruff: and on wall street today, sub-par earnings from goldman sachs, boeing and others weighed on stocks. the dow jones industrial average lost 107 points to close at 19,864. the nasdaq rose a point, but the s&p 500 slipped two. >> o'brien: still to come on the newshour: the contenders for president trump's supreme court

nominee; universities warn international students not to leave the country; and, a music job that women rarely hold. >> woodruff: many questions remain about president trump's executive order temporarily prohibiting citizens of seven majority muslim countries from entering the u.s. perhaps chief among these questions: does it make us any safer? both today and yesterday, white house press secretary sean spicer fielded queries from reporters. >> reporter: some of the countries that have problems with terrorism are not on the list. >> right, and we're reviewing the entire process over this period of time to make sure that we do this right. but i don't think you have to look any further than the families of the boston marathon, in atlanta, in san bernardino, to ask if we can go further. there's obviously steps that we

can and should be taking, and i think the president is going to continue do to what he can to make sure that this country is as safe as possible. >> look, i think the president's number one goal is the protection and safety of the united states and its people. if they want to act in a way that's inconsistent with their concerns, then that's up to them to do it as a sovereign nation, but it is our duty and it is his duty to make sure that this country and its people are protected first and foremost. it can't be a ban if you're letting a million people in. if 325,000 people from another country can come in, that is by nature, not a ban. it is extreme vetting. >> woodruff: so, is this policy effective? for one perspective, i am joined now by michael leiter. he was the director of the national counter-terrorism

center from 2007 to 2011, during both the george w. bush and obama administrations. michael leiter, welcome back to the program. what's your general reaction to what sean spicer is saying is the white house rationale for this? >> well, i think as a general matter, it misses the point that much of this vetting is already going on. so the question is why stop it now? what are we going to add? and if the goal is to have a zero-defect system that no one will ever come to the u.s. who later poses a danger to u.s. citizens, then there's really only one way to accomplish that, and that is to permanently shut down all immigration. and the fact is we can't do that. we wouldn't do that. we have to make smart judgments based on facts about how we vet people, where we vet people, and where the threat really comes from. so based on all of those things, i really don't see this right now as being an effective counter-terrorism tool. >> woodruff: you're referring to the number of terrorist ensdents that have taken place in this country, a number of

them were on the part of people who had been living here for a number of years. >> that's right. since 2001, 82% of fatal tacks in the united states from sunni extremist terrorism-- violent islamic extremists -- have been legal permanent residents or citizens. and the others weren't from these seven countries. so by shutting down, at least temporarily, immigration from these countries, it's a little bit like closing the barn door, but it's not even the barn door where the horse came from. >> woodruff: so, michael, when the white house is asked, "why these seven countries?" they say these are countries identified by president obama, and this is at a time when you were in office, they're saying 2011. they were identified at that time as being countries of concern. what's the difference between what happened under president obama and what they're doing now? >> well, there is some truth there. these seven countries do represent country where's there's a serious terrorism threat. but this-- these countries really grew out of paris attacks. and that issue involved people

from european countries who didn't need a visa, immigration visa at all. they were from visa-waiver countries. you could just travel to the u.s. under the obama administration, if people, say, from the united kingdom, traveled to yemen, then they would have to apply for a visa. what this this order does was saying anyone traveling from those critize there's going to be a pause. so i think there's some corallation, but it's really using it for a very, very different purpose. and it misses, again, what the greatest threat was, which is people coming from visa-waiver countries where the reviews are much less. >> woodruff: and, again, visa waiver countries normally being countries we think of as friendly, our allies, europe, other parts of the world, where their government is not viewed as a threat. >> that's exactly right. there are three ways to get into the united states, a visa-waiver country,. the uk, france, they don't have to apply, they dont get interviewed. visa country like the seven where people are already being

vetted, quite extremely, i would say. and then refugees, which really fall into a special category and to get special attention. >> woodruff: so when they say these are all designed to make the united states safer, to make american citizens safer, the answer is? >> i think the answer on these countries is i don't see it. and we have to remember the ways in which this alienates the people with whom we have to partner, domestically and internationally. it's the muslim community in the u.s., which helps us identify terrorists and radicalized individuals and stop them, and critically, it's the international partners that we need help from in the middle east and majority muslim nations who i fear will be alienated by some of these steps. >> woodruff: you mentioned the vetting process that already takes place, that was taking place through the obama administration. i was reading a piece just today or yesterday citing at least 20 different steps that someone has to take if they want to enter the united states from one of these countries considered suspect. how would you go about tightening-- just how tight is that process?

and how would you go about tightening it, making it more stricter? >> well, it's hard to figure out, quite honestly, judy. and that's in part because it has been constantly improved. it was good in 2001 after 9/11. it wasn't perfect. and after 2011 and the underwear bomber, the christmas day bomber, it was tightepped more. but today, every individual applying for a visa, they go through biographical checks from all of the national security agencies-- the f.b.i., d.h.s., the c.i.a. they have biometric checks, fingerprints. and they're finally interviewed before they even get that visa, and then they undergo additional screening while they're traveling. so it is pretty severe. and in the cases of refugees coming out of syria, it is even more severe. and they've already been screened by the u.n. before handed over to the u.s. and in those cases, we're generally not talking about what would be known in our circles as military-age males, the ones you're most concerned with becoming terrorists. in the case of syrian refugees, that's less than 2% of the

population. >> woodruff: one other argument i've heard the administration make is that these individuals come from places where they can't it's u.s. can't believe what their government says about whether-- about their background, that it's either a chaotic situation-- disorganized situation, or a government that the u.s. would have no reason to trust. >> there's no doubt that some cases like syria make it more difficult. but i think what you just repeated was really exaggerating how hard it is. we still have lots of databases. we have lots of information. wean email addresses. we know phone numbers. and searching those against the wealth of collection that the u.s. intelligence community has can make connections that are important. further steps that have been improved over the past several years involve looking at people's social media profile. that's really important to understand. we do have to demand that countries from which these people are coming are cooperating with the united states. that should be part of the visa process. so i think that's an important step that we demand from these countries that they provide with us information. but the idea that we simply

can't get data about these people i think misunderstands how the intelligence community and the vetting system has worked since 9/11. >> woodruff: michael leiter, thank you very much. >> great to be here, judy. thanks. >> o'brien: aside from the national security concerns, the president's executive order has ignited a fierce debate on its legality and constitutionality. we get two views, from neal katyal, a former acting solicitor general under president obama; and jonathan turley, a law professor at george washington university. jonathan, let's begin with you. let's talk about the law. 1965, immigration and nationality act. what does it say, and how might it impact this executive order? >> well, i think it can can have an impact. there's no question that the law says that you cannot

discriminate on the basis of nationality or place of origin. and that certainly helps the challenges are. but like much nels this debate, much of that law has been distorted. it only takes you so far. first of all, the law doesn't apply to refugees. it applies to immigrants. it's used when you have visa issues. also, it doesn't cover religious discrimination. also, in 1990, the act was amended to exclude procedural changes as a form of discrimination. that-- that reduces the use of the 1965 law, i think, as a serious challenge. and, also tmeans that much of that order that is being challenged doesn't fall under the law. so even if one aspect moeb challenged successfully, the other aspects of the order would remain. federal courts have a long-standing policy to minimize the degree to which they strike down a piece of legislation or executive authority. >> o'brien: neal, the way the

immigration and nationality act is written, it mentioned an individual's place of birth or place of residence. it does not mention religion specifically. the executive order seemed to be narrowly tailored, trying to avoid the use of the word "religion." so, in effect dthey write an executive order which would run afoul of this law? >> oh, they did. and don't be distracted by what you just heard from my friend jonathan. let me read the law, "no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of nationality." now, this is most of what the executive order does, discriminate on the basis of nationality. forget about the refugee provision. it's about green card holders. it's about anyone applying fair visa, a student, an employee of a company. you know, it applies broadly. now, of course, it doesn't reach religious discrimination. that's reached by the constitution, a second problem with the panth so you've got two different things. you've got it violates the

statute and it violates the constitution. and president trump's advisers are pretending that this is 1952, in which this 1965 law didn't exist. but, unfortunately, it does. this is landmark legislation passed contemporaneously with the voting rights act. and it is just blatantly illegal under that law. >> o'brien: all right i feel like i need a gaffe expel a black robe here, gentlemen. let's talk about the constitution first if we could. first amendment, very important amendment, as we all know, the establishment clause. jonathan, it seems on the face of it that you could make a pretty good argument that this runs afoul of the establishment clause that basically says the united states does not get in the business of choosing religions. >> i think the most vulnerable aspect of the order is the one that gives preference to minority religions, and those people that were persecuted under them. that certainly is the weakest spot. but i'm still skeptical about whether you could make a

successful establishment claim. there's a lot of cases that have to be moved aside to get from here to there if you want to strike down this law. it is true. there's establishment issues, but there's also plenary power in the hands of a president. >> o'brien: all right, so the administration is trying to be very clear about saying this is not a muslim ban. but let's listen to candidate trump, december a year ago, when he first rolled out this idea. >> donald j. trump is calling for a total and complete shutdown of muslims entering the united states until our country's representatives can figure out what the hell is going on. ( applause ). >> o'brien: okay. and then last sunday, rudy giuliani, close adviser to president trump in the campaign and through the transition, said this: >> we focused on instead religion danger. it's not based on religion.

it's based on place where's there are substantial evidence that people are sending terrorists into our country. >> o'brien: okay, counselor, so you're arguing this case. are those comments admissible? >> absolutely. and here's the thing. my last job was the chief litigation sphe for the federal government, and i made-- took use of all the precedents that jonathan was talking about, about broad power in immigration. nothing extends as far as what the president has done. this is religious discrimination, and here's what the supreme court has said about that. "the clearest command of the first amendment is that one religious denomination can't be frtunately preferred to another." this executive order prefers christians to muslims. you've got it. the president himself said so contemporaneously when he issued the executive order to the christian broadcast network. this is just un-american and unconstitutional. >> o'brien: jonathan, then-candidate trump and his

adviser, rudy giuliani, more recently dthey undermine their own case? >> well, they certainly undermind their case. i mean, the justice department attorneys are in fetal positions every time someone like this speaks about the purpose of a law. but the long-standing view of the justice department has been what legislators say about a law as to the motivation of the law is not controlling. i've been in case where's the justice department has maintained that position, that you have to look at the laws as to whether it's lawful or constitutional. the court doesn't make assumptions or speculation about the motivations behind the law. if the law has an otherwise bona fide purpose, the courts tend to go with that. i don't see a court, any court saying that what a candidate said on the trail is going to be material in terms of whether this law is struck down. and i'm surprised that neal even suggests that.

i've been in yaiss those types of arguments have been railed and courts have shot it down. for example, what if-- i mean, trump clearly said that. but he then gave this law to someone to draft, and they came back with a law that is not a muslim ban. now, i don't like the law, but i don't think any court is going to look at this law and say it's a muslim ban because it's not. there's plenty to object about this law without making it something it's not. it does not ban all muslims. now, i know people don't like to say that because they, sort of like richard iii, you want to think of your enemies as worse than they are. you don't have to think about this law as worse than it is. it is not a muslim ban on a legal basis. >> o'brien: but if it walks like a duck, talks leak a duck-- isn't this legal parsing that they have come to this executive order? and when you look at the context and the comments, you have to come to the conclusion that at least religion was on their minds in some fashion. >> or religion was more than on their minds. i think jonathan is just wrong. this is a first amendment religion challenge in which the

motivations of the law will be looked to and courts do so. and that's particularly underscored here. because what has the new defense of this law been by the white house? it's oh, we're not focused on religion. we're focused on security. >> o'brien: all right, much to discuss here. just nay word. going to the supreme court? will this end up in the supreme court? >> no, i think this is indefensible, and i think the justice department, after they lose in district court after district court, won't breng this even to the cowfort appeals. i certainly wouldn't have if i were in the government. >> it could go to the supreme court, but you have to be careful what you ask for. we're going to get a new nominee to that court and might not be the type of court you want to appeal this case if we're with the a.c.l.u.glou. >> o'brien: neal katyal, jonathan turley, thank you very much. >> woodruff: we return now to the supreme court and president trump's much-anticipated choice.

to be announced tonight. for that, we are joined by elizabeth wydra, president of the progressive "constitutional accountability center;" michael carvin, former deputy assistant attorney general in the office of legal counsel during the reagan administration. he's now in private practice; and marcia coyle, chief washington correspondent for "the national law journal," and a newshour regular. we hope to be joined shortly by tom goldstein, founder of scotusblog.com. and we welcome all of you to the program. marcia, i'm going to start with you. we keep hearing it's down to two individuals. this is after 21 names that president trump gave us back during the campaign last may. what are we to make of the finalists, if that's what they are? how are they different from the% long list we originally saw? >> well, i think the original list really did contain very solid conservative judges on it, either on federal appellate courts and even on some state

supreme courts. the two now that we're focused on, judge gorsuch, who is in colorado, and judge hard man, who is from pennsylvania, he sits in pittsburgh. gorsuch sits in denver, i believe. they are-- they've risen to the top, i think, especially because they seem closest to justice scalia's jurps. judy, if you recall, president trump said during the campaign that he wanted to appoint someone who was like justice scalia, the late justice scalia. i think that judge gorsuch really is closest to justice scalia in his approach to judging. i think all of the finalists would have considered themselves close to justice scalia as originalists and textualists. but judge gorsuch is really probably the most-- haebt most vocal and most passionate about using originalism, and

textualism to interpret the constitution and statutes. >> woodruff: michael carvin, how would you separate these two, if that's who they are, the finalists from that long list that we originally saw? >> to echo what marcia said, they'd both be worthy successors to scalia. taci think judge gorsuch probaby digaise little deeper into the law and is more vocal, if you will, about the virtues of originalism-- >> woodruff: deeper than? >> judge hardy man, the other candidate from pittsburgh. which is no way to suggest judge hardayman is not an excellent lawyer. he is. i think he stood out among the current federal judiciary, because he takes a deep-seated approach to why originalism is correct and how you get to the correct answer. >> woodruff: elizabeth wydra, what would you add to looking at these two who appear to be the

finalist. >> i think whichever one is the nominee, we're going to be look very closely to see if he is someone who applies the constitution and its guarantees of equality and justice for all, indeed, to all people, not just those who look like him or have the same amount of money in their bank account or pray like him. president trump made a statement that he thought his nominee would represent christians fairly, which, obviously, is a little bit concerning, since justices are not supposed to represent in that way. especially what we've seen over past few days how important the crowrts as a check against unconstitutional violations of the branches. >> woodruff: tom goldstein is joining us now from los angeles. tom, welcome. so what do you look for tonight? we've been talking about what it is that characterize these two apparent finalists, what do you see, and what are you looking

for? >> well, i think that the president really is going to, get a lot of credit from conservatives. i think probably the big difference is just the cases that they've heard. judge gorsuch has heard more cases about religious liberty, whereas judge hardayman has heard more cases about guns. i think we're going to see more drama from president trump than we usually see in rollouts related to the supreme court. and then we're going to hear a lot of sound and furry that will ultimately amount to nothing because republicans simply have the power between the presidency and the senate to get through essentially anyone. >> woodruff: so, marcia coyle, is that how you see it, a lot of drama but in the end the president and his allies, republican allies, are pretty much going to get what they want? >> i think it's probably true. i'm ot quite sure really what the democrats' thinking will be at this point. i know there are some dwheems would like to block any

nomination at this point because they're very angry about the way president obama's nominee, judge merrick garland, was treated in the senate. he had the-- the senate republicans refused to hold hearings or a vote on that nomination, so they see it as sort of payback "maybe we should block this one." on the other hand, senate-- sorry, senate democratic leader chuck schumer has said, "we're going to look and see if the nominee is within the mainstream. he's not went mainstream, then we will block or try to block." and i guess it will depend on how he defines "mainstream." main stream of what. i think it's going to be interesting. >> woodruff: michael carvin, how does one define main stream when it comes down to individuals like these judges? >> chuck schumer defines it as a judge who will impose democratic policies on the country and twist the law to accomplish that.

i guarantee you, he won't think anybody on trump's list is within the main stream. i think they will engage in the sort of massive resistance they have already been engaging in, in the trump presidency, and unfortunatelyou're going to seel demagoguery attacking fine people. it doesn't make a lot of sense objectively because, remember, this is replacing scalia. it's not as if this replacement can move the court more to the right than it is. the court right now is quite liberal in terms of gay marriage and affirmative action and other issues. so all you're doing is preserving the status quo of a relatively liberal court. nonetheless, i think, partially because of the garland issue, the democrats are going to make this a lot of sound and fury. >> woodruff: the garland issue being merrick garland who president obama picked a year ago and the republicans wouldn't hold hearings for him. do you see the court as pretty much on the liberal end of the spectrum?

>> i think it would have been if merrick garland, perhaps, had been conserved as he should have been. it's a conservative court. the roberts court is led by conservative justices which is not to say they don't sometimes rule in liberal ways in more progressive ways that conform with the constitution's text and history. i think there's going to be a focus on this nominee no matter what because every justiceolt court is important, and in fact, the integrity of the court as an independent arbiter of what the constitution is, and the pinnacle of our independent judiciary, alcohol make sure that the constitution's structural provisions are respected, so this justice is important. and i think there is a chance that we are going to have a real fight to make sure that this nominee does not share the, frankly, authoritarian views that the president has exhibited. >> woodruff: michel i'm sorry, tom goldstein. how do you see the-- whether it

is judge gorsuch or hardiman, we don't know for sure, the white house hasn't confirmed that they're the finalists, but if it's one of these, how does the court shift? what do you see? >> well, i don't think the court ask does shift very much. i think the court's considerably more conservative than michael carvin describes. but he's quite right to say in the main you're probably looking at somebody who is a lot like justice scalia. but what does happen is you extend that for a generation. you're talking about someone who is likely to be on the court for a quarter century or more. so it locks in-- whatever the ideology of the court is now in a really important way and avoids a shift to the court on the left that elizabeth wydra described. the other thing, it changes when you're a judge and you become a justice. you get freed from a lot of the constraints of existing precedent. so nobody ought to say with great confidence what any of these judges will do when they're a supreme court justice. conservative venezuela gotten a lot better about not putting on

somebody who is squishy, who might move a lot. but it's still unpredictable. >> woodruff: i just quickly want to go around the table before we wrap up and ask each of you about the process of the names that have come out. you have two dozen names, and now it's dun to two. marcia, is this different from the way it's normally done? >> i think every president looks to certain individuals and certain groups for input in terms of who may most reflect that president's own ideology, philosophy, and that was no different, i think, in this case. president trump reportedly was assisted by the conservative federalist society and the conservative heritage foundation. in terms of the rollout, having we're told both judges at the white house right now. that is puzzling, different, and i guess we have to wait and see. >> woodruff: 45 sctdz, michael carvin, is this unusual to do it

like this? >> i think president trump was much more specific than most presidents have been. i agree that normally you're going to give a general sense of who you're going to appoint, but this was a very important issue because of justice scalia's passing, and president trump was very clear about the kind of justice he was going to appoint. so i think he probably has a more specific mandate than most of his predecessors in terms of who he's going to name diswhrg your thought on the process. >> i think one of the unusual parts of this process was trump was very clear about his litmus test. abortion, religious liberty, and guns. and normally you don't do that because it suggests you're guaranteeing a vote so that was very unusual. >> woodruff: tom goldstein, of five seconds. >> it's usually less of a circus than this. >> woodruff: all right, tom goldstein joining us from los angeles. we're glad you made it through the traffic. >> thanks so much. >> woodruff: elizabeth wydra, marcia coyle, and michael carvin, thank you. and we hope you join us tomorrow night, when i sit down with vice president mike pence at the

white house for his first television interview since taking office. >> o'brien: let's take a different look at the impact of the immigration orders, from the lens of higher education. it's the focus of our weekly segment, "making the grade." there are nearly one million international students on u.s. campuses. the number of students who come from the seven affected countries is much smaller, about 17,000, and most of those are from iran. the president's temporary ban sparked anxiety and protests on a number of campuses around the country. faculty and students both expressed worries about the wider message. here's some reaction, first at the city university of new york, or c.u.n.y., and then from an iranian student at the university of alabama. >> i cannot look at the faces of merely half a million students of cuny, without seeing the faces and stories of millions around the world. 40% of our cuny students are better than in another country.

more than half of us speak a second language at home. at my campus alone, we have students representing over 150 countries. >> i just got a postdoctoral offer from another u.s. university, and i'm just worried about my future, let alone living in the u.s. i'm worried that they're going to deport me. >> o'brien: more perspective on these issues now from angel cabrera, the president of the george mason university, the largest public university in virginia, serving about 34,000 students. born in madrid, cabrera is the first native of spain to lead an american university. good to have you you with us, mr. cabrera. >> thank you for having me. >> o'brien: let's talk about your perspective as an immigrant yourself, having seen the university system here from spain, and now on the inside. i'm curious how that affects your perspective on this whole issue. >> first of all, the american universities have a tremendous advantage around the world

because they're the number one place where students from all over the world want to study. i was there myself. i graduated from college from madrid, spain, and my dreesms to come to one of the great american research universities. and there are hundreds of thousands of students from around the world every year. >> o'brien: the higher education system here really does remain a magnet, doesn't it? >> absolutely. not only that gives the american university a great advantage but it gives an advantage, also, to the american economy. i mean, when you do the numbers and look at, for example, out of the recent start-ups, how many have reached $1 billion or more. about 40% of them have been founded or cofound by foreign-borne individuals. most of them, by the way, come to the u.s. to study. >> o'brien: my understanding is most student don't have green cards. they have student visas. >> that's correct. >> o'brien: that means the carve-out for green cards we have been talking about the last couple of days does not apply to most of these students.

give us an idea of the immediate impact on your campus and campuses in the u.s. > in our case, we have 82 students who have what we call an f1 visa, which is a student visa from those countries and we have about five j1 visa holders, who tend to be exchange scholars. it could be a visiting professor, someone getting their ph.d. here. we are trying to feggure out where all of them are. i think we have accounted for most of them. we have heard, unfortunately, from one of our students from libya who was stuck in istanbul, trying to board a plane to come to us. so she may have to cancel classes this smefort and try to figure out whether maybe she can take some of the class online. >> o'brien: what is your secrecy vaes to students whether they're here or there? >> well what, we're telling our employees, our students, our faculty is don't go anywhere right now until it's more clear because if you step outside of

the united states, you may not be able to come back in. that's, of course, -- some of them have research projects or they may have family issues that require for them to go outside. right now, we're saying do your best to not leave the country. >> o'brien: the idea, according to the trump administration, is to make things safer for americans. just this past november, a somali refugee, student at ohio state university, had a stabbing spree. 11 people were injured before he was subsequently killed. is there a sense among yourself and other college presidents that this is a measure that could make things safe or campuses? >> well, i don't have the data. i don't have the evidence. i hope that those people who make these decision may have data that really links the presence of those kinds of students to national security issues. we don't have that kind of evidence. on our campus, our students from

those countries actually have never posed a threat of any kind. on the contrary, i think the presence of people from all over the world increases the understanding of our students. when you're in class with people from other countries you get to see the world in a more nuanced way. you start to understand how things are perceived from other angles. so from my perspective, one of the best things that one can do to in fact improsecute understanding and diminish the probability of safety issues is to create understanding, is to engage in scholarly exchange. >> o'brien: it's worth putting this, i think, in context intorks the larger economic eco system. the education system has a direct link to certainly silicon valley. lots of silicon valley c.e.o.s came to the united states through this route specifically. over time what impact would this have, ultimately, potentially ojobs in america? >> well, i think when we talk

about immigration, most people start thinking immediately about low-skilled labor. the part that is left out, and it shouldn't because it's essential to the economy of the united states-- it's the knowledge worker. it's the graduate student. 75% or more of graduate students in engineering and computer science in the united states today are immigrants. when you look at start-ups in technology, some of the most innovative companies, the ones all of our graduates want to work for, 40% of those who achieved $1 billion or more were founded or cofounded by immigrants. if you look at scientific achievement, 40% of the nobel prize winners in this country, whether it's chemistry, medicine and physiology, or physics, about 40% were born outside of the united states. so our science is tied to immigration. our innovation is tied to immigration. >> o'brien: angel cabrera, president of george mason university. thank you for your time. >> you're welcome.

thank you for having me. >> woodruff: now we look at efforts to change the face of classical music, and shake up tradition while keeping true to the sound. jeffrey brown has the story. ♪ ♪ >> reporter: an orchestra performing with singers: see anything unusual? at a recent concert by the dallas opera, the focus was on the conductors-- women conductors. and in the still highly- traditional world of classical music, that is unusual. this was the culmination of the second annual hart institute for women conductors. six women and four observers, chosen from 156 applicants around the world, taking part in an intensive two-week rehearsal

and conducting workshop, combined with sessions on how to build and maintain a career. >> i have absolutely seen very talented women who are held back from where they ought to be. >> reporter: it's the brainchild of dallas opera general director keith cerny. >> i think there are some individuals who are opposed to the idea of women leaders, whether on the podium or running large opera companies. fortunately, there aren't that many of those people, but there's certainly some. but more generally, i think it's an issue where, because there's fewer women in those positions, search committees, and general directors and symphony c.e.o.s don't tend to think so much about hiring women for those opportunities. >> reporter: it's just not part of their thinking? >> it's just not part of the thinking. >> reporter: according to industry data: of the nine largest american opera companies, by budget, none has a female music director and principal conductor. and marin alsop in baltimore, who served on the faculty at the

dallas workshop, remains the sole woman music director at the nation's 24 largest orchestras. in dallas, cerny hired nicole paiement as principal guest conductor, and she played a large role at the institute, encouraging: >> when you have an idea, which are always very, very good, say one thing and then move on. >> reporter: cajoling, teaching. >> you sort of explain it five times, but i think we get it the first time. >> reporter: paiement runs her own, small opera company in san francisco, and travels the world performing with orchestras. >> i know there is that surprise phenomenon-- every time i'm guest conducting for the first time, they are surprised when i arrive on the podium. i don't have the physique; i'm a woman, a small woman. >> reporter: what do you mean? you sense the audience is surprised? >> not the audience but the musicians. when i arrive, i can feel that they are like, "oh, okay, that's our conductor?" and it's a little bit of a surprise. it can be refreshing. >> reporter: but does that make you have to prove yourself?

>> not at all! because, they see what i'm doing on the podium is not there to be a leader and to be the boss, but to make music as a collaborative art form. and you know, the art of conducting has changed a great deal. the era of the "tyrant on the podium." >> reporter: right, that stereotype. >> that stereotype is long gone. >> reporter: romanian conductor mihaela cesa-goje, recalls something she learned from her mentor. >> marin alsop is giving a very, very good example, so if a woman goes and conducts with her hand like that, everybody, maybe they might say, "oh, that's such a girly thing." but if a man does that, "oh, he's so sensitive." so i think it's a lot of question of perception, how people are looking, but i try not to focus so much on this, because if i'm thinking about this every day, then you just don't do anything. >> reporter: that was what we heard from others here as well, including the youngest

participant, 26-year-old tianyi lu, who grew up in new zealand, love the music, embrace the work, and focus on how to get better. but, they're all used to being a outnumbered in this world. >> i've been in master classes where i'm the only girl, and i think-- >> reporter: and what happens? >> well, certain things have happened, but i think for me, it's more to do with, sometimes it's very easy for everyone to pretend like they're really confident, whereas i don't think i'm the sort of person who can pretend as well as others. so i actually need real confidence, and that comes with time in front of the orchestra, time with people who are experienced giving me their suggestions, their support and encouragement, and for me that's the important thing. >> reporter: time in front of a prestigious ensemble is key to the institute. for a conductor, the orchestra is her instrument. rehearsals were augmented by one-on-one sessions with more

seasoned conductiors, including italian conductor carlo montanaro. is there something that a conductor has to have, you know, that you must have to be good? what makes a great conductor? >> charisma. >> reporter: charisma? >> knowledge, technique, being true on the podium, not faking yourself on the podium, don't make a show, believe in the music you're conducting. >> reporter: do you see differences in women and men conductors? >> no, zero. >> reporter: zero. >> i see a musician, i don't treat them-- women, men, no. i want to see a musician that knows what he's doing. >> reporter: but why does the >> reporter: off the podium, there were other very practical lessons: on building a resume and networking, whether and how to hire an agent; and developing executive leadership skills, in order to one day move into upper management. >> we really have to do our homework, we really have to educate ourselves if we are going to be in this field. you will most likely be the musical director of an orchestra.

you're going to have to deal with a board and a board is going to talk to you about numbers. >> reporter: american elizabeth askren has guest-conducted in many leading european venues and, like the others here, is hoping one day to be a music director. she saw the institute as a great opportunity for learning with and from other women. >> it's a safe space for us to treat some of those issues. some of which are just, you know, common, everyday things, questions that all conductors have to face. and then there are some issues to explore that may pertain to women. the fact that the numbers are rather low in positions of directorship-- why is that, can we talk about that? >> reporter: the dallas opera has made a 20-year commitment to this institute. i asked general director keith cerny how he'll judge success. >> it would be terrific to think that 20 years from now, this whole issue will have gone away, and men and women will be equally evaluated for positions on the podium. i think that may be a little

optimistic, but-- >> reporter: you do? >> i do, unfortunately, because, there's been no improvement, it's been static for 25 years. i think it is starting to improve, slowly. >> reporter: from dallas, i'm jeffrey brown for the pbs newshour. >> you know what i think, more women conductors. >> o'brien: said the mary, stra. i agree. >> woodruff: and i'm judy woodruff. join us right here at 8:00 p.m. eastern for special live coverage of president trump's supreme court pick. for all of us at the pbs newshour, thank you, and we'll see you soon. >> major funding for the pbs newshour has been provided by: >> lincoln financial-- committed to helping you take charge of your financial future. >> bnsf railway. >> xq institute.

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>> rose: welcome to the program. we begin this evening with mike morell, former acting director and deputy director of the c.i.a. talking about the new administration's national security staff and national security issues, including immigration. >> do you take some sort of military action against north korea. you know, i've, since the very beginning of this presidential campaign, i've been concerned about the president's temperament. i've been concerned about his thin skin, i'm concerned about thinks ego, i'm concerned how he might feel in relation to kim jong-un if he's successful in testing icm. i worry about over reaction. >> rose: we conclude wit