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: >> he is a man of our country and a man who our country badly needs. >> woodruff: president trump picks judge neil gorsuch as his nominee for the u.s. supreme court. >> o'brien: also ahead this tuesday, we ask a key question: does the temporary ban make us safer? >> woodruff: the trump administration rejects reports of internal confusion over the controversial immigration order. >> 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: tonight at the

white house, president donald trump named neil gorsuch as his nominee to the united states supreme court. here is a bit of what mr. trump and judge gorsuch had to say in the east room of the white house. >> judge gorsuch was born and raised in colorado, and was taught the value of independence, hard work and public service. while in law school, he demonstrated a commitment to helping the less fortunate. he worked in both harvard prison, legal assistance projects and the harvard defenders program. brilliance being assured, i studied every aspect of his life. he could've have any job, at any law firm, for any amount of money. but what he wanted to do with his career was to be a judge-- to write decisions, and to make an impact by upholding our laws and our constitution. the qualifications of judge gorsuch are beyond dispute. he's the man of our country, and

a man who our country really needs, and needs badly-- to ensure the rule of the law, and the rule of justice. i would liked to thank senate leadership. i only hope that both democrats and republicans can come together-- for once-- for the good of the country. >> woodruff: we then heard from judge gorsuch. let's take a listen. >> here in the house acutely aware of my own imperfections. i pledge that if i'm confirmed, i will do all my powers permit, be a faithful servant of constitution laws of this great country. i respect it is for the congress to write new laws and not alter the wurchg of the people's representatives. a judge who likes every outcome he reaches is very likely a bad judge. stretching for results he prefers rather than those the

law demands. mr. president, i am honored and i am humbled. thank you very much. >> woodruff: our john yang is at the white house and joins us now. this decision was made. >> i tell you judy, just 12 days into his presidency, mr. trump has taken a step that could leave a lasting impression on the nation for years to come. but that's not the only reasons that this whitehouse took this decision so seriously and so importantly. it also meant a great deal to the voters who got mr. trump to the whitehouse. campaign officials acknowledge that his relief in september of a list of potential justices really was a key factor in cementing and shoring up his support among christian conservatives. now, even before we knew the name of the nominee, white houses press secretary sean spicer today previewed the

whitehouse taste for that nominee. he said he's eminently qualified and meets the criteria that even senate democratic leaders vetted mr. trump for a potential nominee. once this nomination gets to the other end of pennsylvania avenue, judy we know the democrats will have other things on their minds than just judge gor saturday ch's qualifications. >> we heard him thank the republicans working on this. john yang at the whitehouse. >> o'brien: of course, judge gorsuch needs to be confirmed by the senate. our lisa desjardins has been tracking the response from capitol hill and joins us from our newsroom. what's the initial reaction. >> imagine this. it seems senators had statements friend for this moment. no surprise republicans are very happy with this choice. but democrats, it's a mixed reaction, miles. we already have one no vote. that's from ohio senator sharod

brown. he is opposed to this nominee. every democrats are varied but chuck schumer has said he is not deciding whether judge gorsuch meets his criteria of being a mainstream choice but he said in a statement that he highly doubts it given his record. one other note, senator mark warner of virginia democrat came out with a statement praising judge gorsuch's record and education stow a little bit of warmth 24r frowarmth from one d. most democrats seem to be holding their minds open but the real question is whether the republicans will get 60 votes. it doesn't look like they have it right now. if they don't visit will they change the rules of the senate to get this nominee on the supreme court. >> lisa de desjardins will be tracking this. >> woodruff: and here in our pbs newshour studio, 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 is now in private practice; andrew mcbride is a former federal prosecutor now in private practice. he worked with the new supreme court nominee when judge gorsuch was in private practice in washington, d.c. in the mid- '90s; and from los angeles, tom goldstein, founder of scotusblog.com. >> welcome all of you to the program. i'm going to start with you andrew mcbride. you worked with neil gorsuch. tell us about him. >> i had the accomplish of working with judge gorsuch. he's a tremendous guy. i think you heard the real neil gorsuch in his statement. he is understated. he is humble. for a resume, that's stellar. he is a very reserved individual. he was always a pleasure to work with. and as you know, in washington judy, there can be sharp elbows among lawyers who are working for the same climate.

2456s never ththat was never t . he added to the prurk. i followed him on the bench. his rulings remind me a lot of justice scalia in a number of ways. justice o'connor i got to know justice scalia a bit. i think judge gorsuch has a bit of that libertarian streak that justice scalia had in the first amendment area both freedom of religion and freedom of the press and fourth amendment area where he's made some privacy decisions that might have surprised some conservatives. >> elizabeth wydra what's your take. lilibertarian streak in part. >> i have questions on his records on reproductive access. first and foremost based on donald trump's stated litmus test of appointing someone who will be willing to overturn roe vs. wade.

serious concerns about him willing to apply the law to all not just the wealthy and powerful. will he stand up for worker's right against corporation wrong doings and consumer protection. we can't ignore the back drop from what we've seen since the beginning of the trump presidency. this is the person who chose gorsuch as his nominee. ghoach hagorsuch has to show het share these extreme authority authoritarian view points. >> if that's the tester kind of questions posed to judge gorsuch how is he going to answer those. >> he will answer them the same way justice scalia is what is the rule of law each in the statute that congress enacted or in the constitution that our framers wrote. he's not going to impose any kind of personal views either pro trump or anti-trowel, he's going right down the middle. in term of the analysis andrew referred to, he devoutly freedom of speech and freedom of religion.

unlike my friend he doesn't think freedom of religion means freedom from religion so he's certainly not -- >> you're talking about elizabeth. >> i don't know who you're talking about. >> when we talk about things like contraceptive access. what he was simply saying is little sisters of the poor and people like that shouldn't have the federal government impose their morality on them, make their expend their insurance dollars for something they view as sinful. that's not a conservative or liberal view point that's following the statute congress enacted in a bipartisan way that says certain religious beliefs should not be substantially burdened by the federal government. >> we're hearing tom goldstein is joining us from los angeles. probably the outlines of some of the discussion that we're going to be listening to during judge gorsuch's confirmation hearing in the senate. what do you see the senator's followinfocusing on. >> ideology and that is democrats are very upset that president obama's nominee for this slot, chief judge maker

garland was blocked so they are going to look for every opportunity to object to donald trump's nominee for that same position. when it comes to particular lines of decisions, i do think religion is going to be a real fault line here because judge gorsuch does have some significant opinions there. and also just a narrow reading of provisions of the constitution that progressives have relied on for a long time that involve things like reproductive rights. >> we'll pick up on that, andrew mcbride. what do you see in his record that's going to become an issue? >> well, he wrote a very long book about yout euthanasia thatm sure people will look at the contest of other constitutional rights. of course there is no constitutional right to euthanasia. i will make two points to what tom said. first, i think judge gorsuch is not an activist. i mean of the three that were in the running at the end, he is the most like i would say a

measurinmerric garland. he has a stellar record, understated person, a careful person. someone who looks at the law and tries to make the best decision by the likes of the law not by his or her own personal belief. and so i think it's a home run hit by the president. i think democrats would be quite fool orish to oppose this nomin. i think smart democrats will wait for the next nominee who might replace justice kennedy and say well you know now that's a swing vote for the court. but i think opposition to this nominee is just foolish. if you're upset because chief judge garland who is eminently qualified didn't get it, you know, yes. but there was an election, you know and now president trump picked someone qualified who is not outside the mainstream if you will and should be confirmed.

>> liz beat we're hearing andrew mcbride compare neil gorsuch to the man president obama picked for the court who didn't make it. >> i think it remains to be seen whether or not there's going to be a fighter o fight or not. i think people are starting out with fight in them. this seat was teo this is illegitimate but there are people saying we're not taking anything off the table. we want to look at this record and see whether or not he's within that mainstream. that's where the hearing, the questionnaire all of that is important because there are cases that don't come up we're very concerned about. even the broader idea is this someone going to be able to stand up for the constitution. stand up frankly to the trump strietion. beewe've seen cases coming on te travel refugee many are calling the muslim ban that's one of the big tests whether he will be on the check of the overreaching we've seen. >> excuse me for interrupting. michael, if his independence does become a question in the confirmation hearing, his

ability to stand up to the trump administration or future administration how do you think he handles that. >> i think andrew elicited his track record. the senate democrats are not going to look to andrew or me to advice how to behave during confirmation hearings. that said, let's face it. this is just maintaining the status quo. this is just replacing justice scalia. the stakes are a lot higher if there's a replacement for justice ginsberg or justice kennedy and i think it would be very ill advised for the senate democrats to make this world war ii make them blow up the filibuster. if ifersz them i would hold my powder for the vacancy that matters in terms of the direction of the court. >> tom goldstein way in on that and what the calculus may or may not be for this justice appointment. >> the inevitable fact is that

judge gorsuch is going to be confirmed because he's in the mainstream of conservative legal thought. and president trump elected him in part on the idea he would appoint somebody like judge gorsuch and they would have the votes in the senate. i don't see any prospects of hip being blocked. in terms of whether this is a consequential choice it really is. you are talking about someone who is going to extend the consferrive legacy of the supreme court for another quarter century or more. he's a very young guy. there's no doubt it's already a serious serious nomination for a really important seat but it is the case there will be later title in which the court could become substantially even more conservative than it is. democrats do have to decide at which point they're going to kind of lay down on the tracks. >> all right. we've only got just a few seconds left. andrew mcbride since you know judge gorsuch tell us something we don't know about him. we don't know a lot about him. >> he is one of the best skiers in the united states. he's a double diamond, double black diamond skier. and i think it's very good

there's someone from the west. justice white obviously is a great guy in so many different ways and we've had a lot of d.c. centric picks in the last. i think that's another message the president want to say. >> harvard man. >> but a coloradoian in his heart. thank you judy. >> all right. we will we thank you all. once again tom goldstein joining us from los angeles. andrew mcbride here in washington, elizabeth wydra and michael carvin. thank you all. >> thank you judy. >> woodruff: there was a lot of other news coming out of the trump white house today. back to john yang for that report. >> reporter: a night of political 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 filed 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 "i.d.e.a." that guarantees a free and appropriate education for children with special needs. >> 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. >> 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 their 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. >> woodruff: the ukrainian military and russian-backed rebels each blame the other for launching the offensive. 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. the hotly debated dakota access oil pipeline may be moving closer to completion. according to north dakota's senior senator, the acting army

secretary has directed the army corps of engineers to proceed with an easement that's necessary to finish the project. protesters have rallied for months against the pipeline, saying it threatens water resources and sacred native american sites. >> 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. >> 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. >> the fact you have countries like for example you mention saudi arabia or afghanistan where we've had attacks on u.s. soil with connections to those countries so do you see those being added. >> are you asking what is our concern to their reaction to us. >> yes. >> 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? does it make u.s. citizens safer? 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 the 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. and 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 incidents 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 attacks 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. i mean, 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. and 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 order does was saying anyone traveling from those countries, 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 u.k., 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 tightened 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 -- the 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. we know 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 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 challengers. but like much of 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 it means that much of

that order that is being challenged doesn't fall under the law. so even if one aspect might be 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 did they 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. so, 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 seperate problem with the . 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 gavel and 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 places 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 officer 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

officially 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, did then-candidate trump and his adviser, rudy giuliani, more recently, did they undermine their own case? >> well, they certainly undermined 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 cases where those types of arguments have been raised 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 like 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. >> oh, 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 in a 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 court of 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.

>> o'brien: neal katyal, jonathan turley, thank you very much. >> 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 born 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 with us, mr. cabrera. >> thank you for having me. >> o'brien: first, 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 dream was 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: and 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 cofounded by a foreign-borne individuals. most of them, by the way, come to the u.s. to study. >> o'brien: my understanding is most students 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. so 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 figure 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 semester and try to figure out whether maybe she can take some of the class online. >> o'brien: what is your advice 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 decisions 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 improve the 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 into 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 on jobs 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 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, >> reporter: cajoling, teaching. >> say one thing and then move on. 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 that 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? >> no, 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 most 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 conductors, 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. >> 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. >> woodruff: you know what i think, more women conductors. >> o'brien: yes, said the maestra. i'm miles o'brien. >> woodruff: and i'm judy woodruff. 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.

>> the ford foundation. working with visionaries on the frontlines of social change worldwide. >> carnegie corporation of new york. supporting innovations in education, democratic engagement, and the advancement of international peace and security. at carnegie.org. >> and with the ongoing support of these institutions and individuals. >> this program was made possible by the corporation for public broadcasting. and by contributions to your pbs station from viewers like you. thank you. captioning sponsored by newshour productions, llc captioned by captioned by

kim boland: here you can run into people that are just very like-minded. it's a conservative area. i have conservative values. maria hinojosa: northern idaho: a haven for white conservatives. norm gissel: they come up here because they're exhausted with multicultural issues. john alden: we've had problems for 50 years now with any prayer in schools. hinojosa: still haunted by a history of extreme racism. joshua hoston: we'll see swastikas, we'll see various verses that are offensive. and he went like this. don't come change idaho. come and fit into idaho, and we'd love to have you. this is the new america-- black, brown, asian, lgbt, immigrants. the country is going through a major demographic shift, and the numbers show it. the face of the u.s. has changed. christina ibanez: we're american. we care about the same things. but yet we also want to preserve our culture. i just see it destroying what we had planned to happen here. hinojosa: by 2043, we will be a majority non-white nation.