captioning sponsored by macneil/lehrer productions >> brown: rebels and regime loyalists clashed again in tripoli today, as moammar qaddafi vowed in a radio message to fight until victory or martyrdom. good evening, i'm jeffrey brown. >> suarez: and i'm ray suarez on the "newshour" tonight. we get three reports on the fierce battles, the human toll and the journalists freed after being held captive by pro- government gunmen. >> brown: then, we update the track of hurricane irene as it bears down on the bahamas and heads for the east coast of the u.s.

>> get your medicine ready >> suarez: we have a debate about alabama's move to crack down on illegal immigration with the nation's toughest law so far. >> much of the land is still owned by the united states government. and so the tribes are simply saying you took our land, we want our land back. >> suarez: judy woodruff gets two views of the delays in confirming president obama's nominees to the federal bench. >> brown: and we close with a conversation with author esmeralda santiago about her epic novel, "conquistadora." that's all ahead on tonight's "newshour." major funding for the pbs newshour has been provided by:

>> they're the ones that help drive growth. >> like electricians, mechanics, carpenters. >> they strengthen our communities. >> every year, chevron spends billions with small businesses. that goes right to the heart of local communities, providing jobs, keeping people at work. they depend on us. >> the economy depends on them. >> and we depend on them. and by the alfred p. sloan foundation. supporting science, technology, and improved economic performance and financial literacy in the 21st century. and with the ongoing support of these institutions and foundations. and... this program was made possible by the corporation for public broadcasting. and by contributions to your pbs station from viewers like you. thank you. >> suarez: the revolution in libya isn't over yet.

moammar qaddafi and his immediate family are still at large. firefights continue in the capital and elsewhere. we begin our coverage with a report narrated by jonathan rugman of "independent television news." >> reporter: yesterday, they were celebrating its capture. but today colonel qaddafi's compound was a battlefield again. the fighting was fierce. libyan rebels used everything they had, even a gun designed to shoot down aircraft. the rebels say hundreds have been killed in tripoli in the last few days. as a hard core of qaddafi loyalists seems determined to fight till the last. in a radio broadcast last night, the man once known as brother leader vowed to fight or die. victory or martyrdom he said.

calling on libyan tribes to march on the capital. the man who ruled for over 40 years hasn't been seen in public since april. yesterday, he claimed he was walking around tripoli incognito. and maybe he's so delusional we should believe him. today, qaddafi's former justice minister said he didn't object to qaddafi's departure from libya as long as he faces and he offered an amnesty and money if only someone would turn him in. >> reporter: this is how tripoli is looking tonight. qaddafi's forces mounted a fightback for the colonel's compound but it failed. loyalists have fled south along the airport road from where there are reports they have been shooting civilians. and qaddafi's gunmen are hiding

in the zoo and forest areas near the rixos hotel qaddafi himself perhaps fled from his compound through one of his underground tunnels the abu salim area to the south of the city seems to be where his followers are making their last stand. this afternoon smoke and the sound of gunfire from abu salim while qaddafi's only daughter aisha appealed by telephone to a tv station based in syria for libyans to rally round her father to stop libya from becoming another iraq rally around her father, to stop libya from becoming another iran. this is rebel footage of one of the colonel's leading bodyguards who's been captured. "where is qaddafi" the rebels where is qaddafi the rebels are heard asking him and he shrugs in reply. perhaps the prospect of a $1.3 million reward will provide some clues. >> brown: the human cost of the civil war is mounting. and the continued fighting is bringing more casualties to hospitals. james mates of "independent television news" has that part of the story from tripoli.

>> reporter: just inside the main gates of qaddafi''s compound of bab al aziziya the battle is not over-- far from it. shortly, before we arrived here a rebel soldier had been killed. his comrades fought back with every weapon they had. they clearly have the upper hand in this battle but victory still eludes them. the fighting has already cost at least 400 lives and many hundred more are lying injured in hospitals across tripoli. we found dozens. bodies horribly broken, receiving at best, rudimentary care. many are not fighters, but civilians. the inevitable casualties of street to street fighting in the middle of a crowded city. little shahad mohammed is only five years old. on monday shrapnel from a mortar shell almost severed three fingers on her right hand. >> they were running away and >> reporter: the surgeons hope they may have saved her fingers but in these conditions with

drugs in short supply and only specialists they can only hope. >> the situation is crucial. we are suffering from a lack of medical staff. the snipers are still everywhere. and they are still shooting normal civilians and women and children. >> reporter: the international red cross were able to get fresh drug supplies to this and two other hospitals in tripoli this morning. it's a start, but they're going to need a great deal more in the days ahead. in the hour or so that we've been in this emergency ward we've seen half a dozen cases maybe more brought and we've seen several more dead bodies taken out. however close the rebels believe they are to winning this civil war, they are still paying a terrible price. across the city 35 foreigners who've been held captive by forces loyal to the qaddaffi regime were finally this evening driven back to freedom. mostly journalists but including

a former u.s. congressman and an indian parliamentarian. they hadn't officially been hostages, but they certainly had been held against there will. and had clearly feared for their lives. the captures were guards who couldn't grasp that the regime that they served had been swept away. >> it finally dawned on them that qaddaffi's apparatus was gone and they eventually put down their weapons. we didn't want to force the issue with them. at the end of the day there was just two of them that were armed but it was getting increasingly threatening, increasingly hostile. >> reporter: they thanked the red cross staff who had driven them to safety and posed for a souvenir photo. their freedom tonight another sign that the last remnants of the qaddaffi regime do seem to be slowly accepting the inevitable. >> suarez: among those journalists at the hotel was i.t.n.'s john ray. he described his experience earlier today. >> we arrived at the rixos hotel very early on monday morning, having been to green square to witness the rebels taking their place over. the rixos hotel, frankly, it was only place we could think of to

stay and is a place that it was a place we thought had been liberated. that was bum information. when we woke up the next day, we found we were trapped along with the rest of the press corp. all of us faced a very difficult dilemma. we were effectively being held hostage-- guarded, if you like-- by gunmen of the regime. some i'm sure genuinely thought they were there to look after us, but we faced a difficult choice-- if we hang on hoping the rebels come in and storm the place with a minimum of fuss or did we need to get out of there in the fear that nobody would rescue us or indeed that the libyan army would move in. indeed, they had been camping out in the woods behind us. we, in the i.t.n. team, took the decision to try to make an escape and we made that escape this morning. we basically went out of a fire door at the back, ran across the open ground, hunkered down by a wall having slipped out the back gate over, open and thumbed down

a lift. at the side of the road. the man who stopped and picked us up, i have to praise him for his bravery and humanity. he took us about 100 meters down the road and was telling us in arabic, it really wasn't safe and to prove his point at the side of the road there was a car that obviously had been fired upon and by the side of the car i'm sorry to say was the body of a man shot, i assume, by the army. our driver turned around and took us to a neighborhood very close to the rixos hotel and those people took us in, they fed us, they gave us water. they were incredibly, incredibly kind they represented the best of, not just libya, but the best of humanity and it was due to them that eventually we were able to organize a lift to this hotel and this position of relative safety despite the gunfire you're hearing around me.

>> brown: still to come on the "newshour": hurricane irene on the way; alabama's immigration law; a land and money dispute over the black hills of south dakota; the delay in confirming federal judges and an epic novel of puerto rico. but first, the other news of the day. here's kwame holman. >> holman: wall street scored new gains, thanks partly to news of improving orders for autos and aircraft. the dow jones industrial average gained nearly 144 points to close above 11,320. the nasdaq rose 21 points to close at 2,467. the federal budget deficit will top $1.2 trillion this fiscal year. the congressional budget office reported today the red ink will be slightly down from the last two years. but c.b.o. analysts also warned that weak economic growth will continue with unemployment falling only slightly by the end of 2012. in syria, government forces stepped up their crackdown on a

key city in the eastern part of the country. activists reported tanks stormed deir al-zour, and troops arrested dozens of suspected government opponents. meanwhile, the european union imposed sanctions on an elite military unit from iran. the e.u. said the quds force is aiding the syrian government. at least 36 militants were killed in southern yemen today, in new fighting between government troops and a branch of al qaeda. officials also reported eight soldiers died in the clashes. they said the trouble broke out late tuesday near zinjibar. the government is trying to retake several towns in that region. google has agreed to pay $500 million to settle a federal investigation involving drugs imported from canada. the focus was on internet search ads for rogue pharmacies that illegally sold prescription and over-the-counter drugs to americans.

google said today it never should have permitted the ads. the sports world echoed with praise today for pat summitt, the legendary women's basketball coach at the university of tennessee. the 59-year-old has been diagnosed with early onset dementia-- alzheimer's, but she vowed tuesday to keep coaching as long as she can. summitt has won more games than anyone else in women's basketball, including eight national titles. those are some of the day's major stories. now, back to jeff. >> brown: and to the coming of hurricane irene. the storm bulked up today and headed toward the u.s. mainland. >> brown: palm trees still whipped in the wind and rain today and waves battered white sand beaches, after irene marched through the turks and caicos islands chain overnight. flooding from the storm displaced hundreds of people in the dominican republic. and even though cuba was out of the direct path, the storm sent waves crashing over a seawall in baracoa. today, the bahamas began feeling the effects, as the season's first atlantic hurricane

reached category three status with winds topping 120 miles an hour. next in irene's sights after the islands of the caribbean: the eastern seaboard of the u.s., especially the north carolina coast, where people were already stocking up on emergency supplies. >> last time, we had an outage, the tornado, we had no radio. so we thought now's the time to make sure we do. >> brown: along with year-round residents, large numbers of late-summer visitors from around the country were at the carolina beaches this week. some were forced to leave by ferry from ocracoke, after a mandatory evacuation was ordered for everyone on the tiny barrier island along the outer banks. >> well, it's a low lying island, and if it's a bad storm that hits directly it won't take much of an elevation of sea level to create a lot of havoc. there aren't many high spots on ocracoke island. >> brown: north carolina

governor bev perdue warned people not to take irene lightly. >> we know she, hurricane irene, is a big storm. 115 m.p.h. winds is a big wind. get your evac kit ready, get your meds ready, take insurance docs and have plan to get out if you have to. treat this seriously. but then pray real hard that north carolina will be fine. >> brown: farther north, new englanders were prepping for the storm's possible arrival in a few more days, including at martha's vineyard, massachusetts, where president obama was vacationing. a spokesman said he's getting updates from craig fugate, head of the federal emergency management agency. >> this is somebody who is a legitimate expert on these issues. logistical issues are a part of that effort, that's why we're in such close communication and

consultation with state and local officials up and down the eastern seaboard. >> brown: irene has already dumped heavy rain on puerto rico. more than a million people there lost electrical power as the storm hit. president obama declared a state of emergency for the u.s. territory. >> brown: for more on irene and what to expect in the days ahead, we turn to jim kosek senior meteorologist with accuweather.com. thanks for joining us. sos where the storm now and what's the immediate path look like? >> well, still moving off to the northwest at about 12 miles per hour here, jeff. it looks like that motion is going to continue throughout the nighttime hours. it's over the southeastern bahamas. still well off to the south by a couple hundred miles getting away from nassau and freeport in the northern bahamas. but the damage is going to be done over the next 24 hours in this location. as a matter of fact, when the storm develops an eye you get the corresponding eye waltham. 's the meat and potatoes of the storm system where the damage is done. on the northern eastern flank of the storm system even though it's going to be going just off

to the east of nassau as well as freeport, we're still going to have a lot of rain and problem with the wind in this area as we're probably ramping up the storm system, probably getting category 4 over the next 24 hours. so we're expecting 131 to 155 miles per hour. that's ridiculous, jeff. >> jeff: so you have quite a wide swath of the east coast of the u.s. what's the level of certainty or what are the factors when you look at where it might make landfall and hit the hardest. >> the bermuda high pressure is pretty strong this time of the year and given the clockwise flow around that it's going to take it to the northwest tonight there are a couple cold fronts moving through the midwest right now. that's one aspect with the severe weather over michigan and indiana but also over kind of the northwest in through british columbia and alberta, that's another cool front that will make it through great lakes and northeast on saturday. that's going to help draw the storm system in. and one thing to keep in mind. the storm track goes to the path

of least resistance. where the pressure is going to be lowest so it's going to cut into those cold fronts before it eventually gets swept out. that's why we think it's a pretty good likelihood we're going to have hurricane force... major hurricane force conditions along the coast of next north korea as we roll on in through saturday afternoon, saturday night and perhaps category two coming up to long island and category one for the remainder of new england late this weekend. >> brown: we just saw some pictures of people getting prepared in north carolina. those are... you know, it's the height of the summer season. these are some tough economic decisions, i guess, for local officials. so your advice right now is they're doing the right thing to get prepared, especially in north carolina, right? >> absolutely. i don't want to just shrug off the reminder of the southeast because this is also a setup, any part of florida on northbound where you're probably not dealing with much in terms of wind. it won't even get tropical storm through georgia or south carolina but you're continuing with rough surf and lots of beach erosion. so anywhere from miami on

northbound you're at least having those problems so if you think you're venturing into the water, you have to keep in mind that irene is a very, very large storm system, much like dropping a plunger into the ocean so the effects in terms of rough surf and rip currents already felt along florida's coastline and even as far north as, say, fire island on long island east of new york city starting tomorrow. >> brown: and briefly, you mentioned going all the way up into new england. some there's some talk about it being the biggest storm to hit up there in quite a long while. >> quite a long while, indeed. we remember hurricane bob in 1991. also bertha and fran from' '96. floyd from '99 didn't have a lot of wind but rain associated with it. this could be the strongest storm system since 1938 to come up through this area. so a lot of damage and unfortunately this is just getting its act together even though it will be weakening once it gets north of cape hatteras due to wind here is and cooler waters, you're still talking about a hurricane nonetheless.

>> jeff: joe kosek of accuweather.com, thank you very much. >> suarez: now, a legal showdown over the nation's toughest state measure to date targeting illegal immigration. a federal judge in alabama today heard arguments over whether to block the state's new law from going into effect september first. the u.s. department of justice and a coalition of civil rights groups have challenged the law, on constitutional grounds. the measure is similar to an arizona law currently making its way through the federal courts, but alabama goes further. it would authorize local law enforcement officers to arrest and detain anyone they suspect of being in the country illegally. penalize people who knowingly transport, harbor, or rent property to illegal immigrants. require public schools to confirm students' legal status through birth certificates or sworn affidavits. and make it a felony to present false documents or information

when applying for a job. we get two views now from kansas secretary of state kris kobach, a constitutional lawyer who helped write the alabama law. and mary bauer, legal director for the southern poverty law center, one of the groups that filed a lawsuit against the state. ms. bauer, the civil rights groups and the u.s. government went first today so let me ask you. what was the main thrust of their argument before the district court judge? >> well, this law, as you said, is an extreme anti-immigrant law. it contains a wide variety of provisions from the kind of controversial provisions that were widely discussed in arizona allowing the arrests and detention of people based only on the suspicion that they're undocumented but it has a number of provisions that have not been tested in other courts, including the provisions that make it illegal to contract with people, rent to people, that require school children to verify their immigration status,

the immigration status of their parents. these are really extreme provisions that are not likely to stand up to sort of... under our constitutional provisions. they're clearly designed to send a message to immigrants and to foreigners in alabama that they're not welcome. the arguments today focused on kind of federal preemption notions, that it's the duty of the federal government to enforce immigration law, to write and craft immigration law and to decide who to punish. alabama simply doesn't have the authority to create its own immigration scheme. >> suarez: kris kobach, that's been the objection in a lot of states that have tried legislation of this kind. how do you answer that argument? >> well, the supreme court has answered it for me. the supreme court of the eyes has ruled on this issue of whether states can take steps to stop illegal immigration. let's be clear, it's about

illegal immigration, not immigration generally. and the supreme court ruled once this past may, just a few months ago and said that arizona's twechk law to prevent employers from knowingly hiring unauthorized aliens, they upheld that law, ruled in favor of the state and prior to that it was 1976 the last time the supreme court ruled on this issue. there it was a california law and the supreme court in that case, too, said the states do have the authority to take these steps to discourage illegal immigration. the question in preelse, which is what this case is all about, to simplify it, does the state law conflict with any law that congress has passed? and the interesting ng this case is that the civil rights group, like those represented in this case, they can't point to any act of congress that says states aren't supposed to do this. on the contrary, congress has time and again over the past 20 years or so congress has invited states to assist in helping to discourage and deter illegal immigration. that's what alabama's doing and i'm confident alabama will

prevail at the end of the day. >> suarez: secretary kobach, a federal court in arizona blocked parts of s.b.-1070, the law that their legislature passed, from taking effect. when you helped craft the alabama law, did you take that into account and try to remove some of the things that judge objected to? >> actually, yes. there was one provision of the arizona law that had to do with when a police officer if he's making a traffic stop under what circumstances a police officer would ask if a person is unlawfully present and sdhen the federal government. the federal government has a 24/7 hotline. and the district judge in that case misunderstood how the... how and when that provision of the law would operate so we clarified that in the alabama law. then there's some additional provisions where alabama really wanted to go as far as the state can per missbly go to discourage illegal immigration. there's plenty of things a state

cannot do but this bill goes to those things a state can do. >> suarez: mary bauer, in your opening comments you made it quite clear you objected to the thrust of the alabama law but isn't the essence of the question at this point whether alabama can move ahead with measures like this one, barring children from schools, checking on whether you're renting to people who are legally in the country and so on? >> i think that is the question. and i think there is no doubt that the federal government stands with immigrants in alabama in saying this is not something a state is permitted to do. and so when mr. kobach advises the state of alabama that this law is permissible and advises them that the department of justice will not enter, he got it wrong. every court that has looked at the core provisions of a law like this has declared it unconstitutional. every court that has looked at the detention provisions of this

bill has said this cannot stand. a state is not permitted to do this. and we have every hope that the outcome will be the same in alabama with these incredibly extreme, radical provisions that have not been adopted in other places. >> suarez: secretary kobach, how about that? haven't the laws... similar laws in utah, in georgia and indiana been blocked in their implementation? >> preliminary injunctions have been issued. but let's be clear, the standard for a preliminary injunction is very different. that's what's being argued in alabama, the standard for when a judge decides are we going to preliminarily put this law on ice before i put this law on the case. when you look at final judgments when you look at the final judgments, laws like this do survive in court like the example of the u.s. supreme court's decision in may. i would caution that whether the u.s. justice department sues or not is not a fair indicator of

whether something is correct. when i worked at the u.s. justice department under attorney general ashcroft we would never have dreamed of suing a a state in trying to assist the government in pursuing illegal immigration. things have changed at the obama justice department and they've brought these suits which are unprecedented and unnecessary. groups like the a.c.l.u. already launched the lawsuit so it wasn't necessary for the justice department to spend our taxpayer dollars suing alabama. the notion this was about whether the justice department would sue is incorrect. the question is does a state have the authority and under the precedence of the united states, they do. my colleague opposite has made the claim that these are radical measures. hardly, in fact, every one of the 50 states police officers exercise this authority all the time. they pull someone over for speeding, the federal government has a 24/7 hotline and if the police officer says, you know, this doesn't look look right, there's ten people crammed into a six-person car, they're acting evasively and i have reasonable suspicion something's going on here, the federal government allows the officers to

discretionaryly say hey, i'm going to make that call. in alabama they're standardizing the practice. >> suarez: is the secretary of state right that the federal government has already been using local law enforcement around the country to assist in detaining and eventually deporting illegal immigrants? >> sure. but not in this way. not in a way that allows states to arrest and detain people without real evidence based solely on what they look like. on some reasonable suspicion which is not defined that someone is undocumented. not under circumstances like this. this law criminalizes the act of churches in transporting immigrants to church. this law creates civil... a civil caucus for citizens who simply think that the sheriff is not doing an aggressive enough job in enforcing the law. it contain prose visions that are way beyond anything that has been... that have been passed anywhere else and for a state

like alabama with a tiny immigrant population and which is desperately poor, it is really about political posturing it's not about any kind of policy that is needed to fix any kind of problem that exists in the state of alabama. it's political posturing by legislators and by people like mr. kobach. >> suarez: mary bauer, kris kobach, thank you both. >> thank you. >> brown: next, a very different challenge for the federal government, this one in the black hills of south dakota. hari sreenivasan tells the story. >> reporter: it's august on the pine ridge indian reservation in western south dakota and the annual powwow is in full swing. ( drumming ) the celebration is a highlight for the oglala sioux tribe-- bringing together thousands of native americans to sing, dance and honor their traditional culture.

tonight, good cheer, however, is in stark contrast to everyday life on one of the poorest indian reservations in the united states. few people in the western hemisphere have shorter life expectancies. males, on average, live to just 48 years old and females to 52. almost half of all people above the age of 40 have diabetes. unemployment rates are consistently above 80% and in shannon county inside the pine ridge reservation is under $8,000 a year. but there are funds available, a federal pot now worth over a billion dollars that sits here in the u.s. treasury department waiting to be collected by nine sioux tribes. the money stems from a 1980 supreme court ruling that set aside $105 million to compensate

the sioux for the taking of the black hills in 1877, an isolated mountain range rich in minerals, that stretches from south dakota to wyoming. the only problem: the sioux never wanted the money, because the land was never for sale. >> the black hills are very important to the sioux tribes because they are the spiritual center of the sioux people. >> reporter: for tribal attorney mario gonzalez the compensation fund is the embodiment of indian mistreatment by the u.s. government and the taking of the black hills was the gravest sin of all. >> the sioux tribes have always maintained that the confiscation was illegal and the tribes must have some of their ancestral lands returned to them. they've maintained that position since 1877 until the present time. compared to the natural resource-rich black hills, the reservations the sioux were relegated to are mostly dry, desolate landscapes. shannon county has one of the lowest per capital incomes in the united states. >> at one time the sioux indians

were a wealthy people with no unemployment and a place here that satisfied all their needs. the land dispute dates back to 1868, when the u.s. signed a treaty at fort laramie that set aside the black hills as part of the great sioux reservation. but when gold was discovered in the hills a few years later, the floodgates opened, and western pioneers poured in and the fort laramie treaty was broken. >> i'm afraid there's a long history of treaties being made with indian tribes that were broken. some would say that no treaty was ever kept, that every treaty >> reporter: ross swimmer served as the special trustee for american indians during the george w. bush administration. >> it's been a psychological issue all this time. much of the land is still owned by the united states government. and so the tribes are simply saying you took our land, we want our land back. >> reporter: from 2003 to 2009, swimmer oversaw the black hills

trust account, one that grew substantially from the initial $105 million settlement. >> tribal monies must be invested in government securities or better where there is no danger of loss. 30 years later its worth $1 billion, so it's not a bad investment. >> reporter: but, the sioux say that money is far less than what the land is worth. the black hills are a major draw for tourists, helping to promote an industry that generates over $2 billion of economic activity every year for the state of south dakota. and there are still questions on the best way to distribute the billion dollars. any compensation money for the sioux would mainly be distributed on a per capita basis. >> you've got 100,000 sioux and $1 billion, what is it $10,000 a piece, that goes pretty fast. >> that type of plan is unacceptable to the sioux tribes because when you give out per capita payments the money is gone in a year or two and the

tribes have nothing to show for their ancestral lands. after more than 130 years of standoff over what the u.s. government owes the sioux, president obama's election to office appeared to provide an opening. >> i am absolutely committed to forging a new partnership with you. >> reporter: the president said he would meet with the sioux tribes on the black hills land claim-- the first to do so. obama said the nine tribes must first agree unanimously on a proposal among themselves. that is a problem says native american journalist tim giago, who has covered this story for more than 30 years. >> we have a lot of infighting and squabbling among our own people. there's been meetings taking place in the last two years on different reservations where a lot of people are coming together and sitting down and discussing all the prospects.

>> reporter: theresa two bulls is a former oglala sioux president who helped organize the effort to restart the black hills talks following obama's 2008 election. she agrees with giago that there are serious divisions but says that the tribes are making progress. >> this is the closest we've gotten. believe me, it's hard to unite people, it's hard to stay positive but you have to for the i'm tired of this poverty. i'm tired of this rut were in. >> reporter: gonzalez says the tribes have formed a reparations alliance and are aiming to finalize a proposal to be submitted to congress by the end of the year. he hopes that proposal will give the sioux shared ownership of over one million acres of federal land within the black hills, along with financial compensation. but he quickly points out that the sioux are not seeking any private property and knows that popular tourism attractions will be off the table. >> we are trying to be realistic, when the sioux tribes

ask for return of federal lands, that does not include mount rushmore, ellsworth air force base, post offices or any property that is being used by the government for its purposes, >> reporter: and what gonzalez and the sioux are seeking does have precedent. president nixon returned nearly 50,000 acres of federal lands in the carson national forest in new mexico to the taos pueblo tribe in 1970. and although recent polls show the younger generation of the sioux more willing to accept the black hills money, some of the poorest people in the country have, thus far, remained steadfast in their opposition to taking it. >> that's a tough group up there. i'm amazed that they have been willing to sit this long without taking the money.

>> reporter: sioux leaders say they will take up the black hills issue again at tribal meetings in the coming months. >> suarez: and to the politics of confirming the president's judicial nominees. judy woodruff is in charge. >> woodruff: when the u.s. senate left washington for its summer recess, it had confirmed 97 of president obama's judicial appointees-- compared to 144 for george w. bush and 165 for bill clinton at this point in their presidencies. there are currently 91 judicial vacancies-- 60% of which have nominees awaiting action in the senate. we get two different takes on the process now from caroline frederickson. she's executive director of the

liberal legal group the american constitution society for law and policy. and curt levy, he's executive director of the committee for justice, a conservative legal organization and we thank you both for being here. let me just start by asking. how much worse is the vacancy problem now than it was under previous presidents? caroline? >> well, admittedly, at the beginning of president obama's first administration, the vacancy rate was approximately at the same level. at the end of the clinton administration there was 10% vacancy rate and that's what president bush inherited. but over the course of his two administrations they worked that down with the cooperation of the democrats, clearly, to less than 4%. so when we're over 10% now, that's a very significant crisis >> woodruff: curt levy, is it significant and is it a crisis? >> well, i don't think the numbers are quite as dispirit as caroline says, but i think let's

even assume that vacancies are high right now, i don't think it has much to do with anything the republicans are doing. it has to do with a very slow nomination pace by the obama administration. obama is not making confirmations a priority nor is senator reid, the majority leader. also there's just been let's face ate general breakdown in court sni the senate and all issues get affected and there are also two supreme court vacancies in obama's first two years which for about six months was the focus. >> woodruff: what about this notion that some of the fault here lies with the slowness of the nomination process in >> well, i think, judy, at the beginning you mentioned there were well over 50 nominees pending now in the senate and i think that is a very good number to look at. in fact, there are 20 that are pending on the calendar before a full senate vote. 16 of whom came out of the judiciary committee unanimously. many of those are holdovers for

from the last congress. i think those people should be immediately confirmed. we're talking about many of them ten of those, who represent... who would be filling judgeship where there are emergencies. that needs to be addressed right away. >> woodruff: so you're saying it's not a slowness in the nominating process. >> i don't think there's evidence of that now. i would say at the beginning of president obama's administration he did come out of the box fairly slow and part of that is attributable to, as curt says, the general obstructionism in the senate where you had even the person to head the office of legal policy in the justice department which was the main office responsible for vetting judicial nominees, he was held up for over a years. that really gave them a big hurdle to climb over to get the process started. ruch rough what about that, curt levy, that there's just been a problem from the beginning here? >> well, i think that problem from the beginning is still reflected. for example, caroline accurately pointed out that there are 20 pending who have gotten out of committee.

but that's only 20 out of 91 vacancies and all but one of those 20 are just a matter of weeks or at most a couple of months which is a very short time historically. i mean, there are many of bush's nominees who waited literally years after they got out of committee. there were some nominees who were waiting throughout most of the eight years. so the fact that there's only one out of the 20 who's even been waiting three months i think tells you things are going fast. i mean, could they go a little faster? sure. i don't think they could go much faster, though. >> woodruff: how much does it matter, curt levy, that there are these vacancies right now? >> well, look, no point in having navy kansis that aren't necessary in the sense of there being no nominee or a controversial nominee that needs to be scrutinized on the other hand, we're talking about 90% of the seats in the federal judiciary are filled or 90% and i guess i've never been convinced under either a republican or democratic administration that it makes an

enormous difference. some slight difference but not an enormous once. >> woodruff: slight difference? >> i think that's definitely not stating the full truth of the matter. 37 of those vacancies represent judicial emergencies. and that is a term that's been defined by the administrative office of the courts to represent an extremely high caseload. what that translates into for ordinary americans is an extremely long wait before their vital case can get heard. we've had stories of, in fact, there was a federal judge who died in his chambers in his 90s because he was desperately trying to hear the social security appeals that were in front of him. that is a situation that is affecting people in their real, everyday lives. >> i do agree that judicial emergencies should be given priority, but, again, let's remember that judicial emergency is not just defined by caseload. it's also defined by how long the vacancy has existed and, again, that vacancy may have existed for a long time because obama was very slow to appoint a

nominee. >> woodruff: but i want to get to this question of affecting real people in their real lives. are you saying, caroline frederickson, that people are suffering as a result of this? >> well, i do think so. i think we forget sometimes that our attention is so much on the political branches of government we focus on elections, we focus on the presidential race, the straw poll in iowa, we look at what's going on in congress but we forget that we have an entire other branch that exists for an extremely important purpose: to add jude case these important cases. and i think when we have a situation when our economy is in duress, people have really important reasons to get into a courtroom and the waits are just inexcusable. >> woodruff: you're smiling a little bit here. >> um... not... not particularly. i don't know that i totally disagree. again, there's... why have any higher vacancy rate than is necessary? i just think that over the years even when i've been tempted to

use judicial emergencies as a statistic under bush i was never really convinced that, again, whether 90% of the seats are filled or 95% that it has a huge impact. but i'll agree. let's fill all the vacancys that we can. >> woodruff: i wonder what are the prospects going forward, curt levy? i mean, right now washington seems to be locked in this partisan warfare we've all been hearing, we've been watching it before our very eyes. is that and the prospect of the fact that we're going into an election that the prospects are not good for breaking through here? what do you see? >> well, they've actually gotten better, believe it or not, now that republicans control the house. i think before that the g.o.p. saw itself as nothing but a minority party whose job was, frankly, to some degree, to slow things down and i think they've been much more likely to work towards being bipartisan in this congress now. i don't know if... you know, given all the other things they're fighting about, i'm not

sure if it's been noticed but they have confirmed a lot of judges right before christmas. they've confirmed a good number of judges. so i think for the rest of this year things should go smoothly. once we get into an election year, though, things slow down. both because people's attention is in other places and also because the party out of power thinks if i can just keep vacancy open for another year, maybe my president will fill it. >> woodruff: what do you think it looks like going forward? >> i would like to be hopeful. it's unfortunate when curt can suggest the republicans thought that their job as the minority party in the senate was obstruction. that doesn't reflect well on the senate as a whole and doesn't serve the american people. i would also say i don't think we should accept it as status quo that our judicial branch can be me gleblgted and say are can skis go unfilled because we're in an election year. when senator lahey was chairman

of the judiciary committee and president bush was the committee chairman lahey moved nominees through the committee and they moved through the floor of the senate and were confirmed and that's the model we should follow. >> i want to clarify one thing. i said "slow things down" not "just say no." at the end of the day these nominees with the exception of a few controversial ones all get confirmed. i do think when a party is completely out of power it is the job of the party to be skeptical. it's not in a position to make the other party work with it so it's the job to be skeptical but they didn't really stop people the way the democrats stopped permanently bush judicial nominees. >> woodruff: ten seconds on that? >> i think the record stands for its. vacancy rate went down below 4% under president bush and it stands above 10% for president obama. >> woodruff: all right, we'll have to leave it there but we thank you both for being with us. curt levy, caroline frederickson thank you very much.

>> brown: finally tonight, a tale of history, with a personal twist. i recently sat down with author esmeralda santiago. here's our conversation. set in the 1800s, the new epic novel tells two coming of age stories, one of its heroine, anna, the daughter of spanish aristocrats who becomes head of a plantation in the new world. and the other of puerto rico itself. its author,s her ral da sand santiago came to the united states from puerto rico when she was 13. she's author of the memoirs "when i was puerto rican" "almost a woman" and the turkish lover and the novel "america's dream" and she joins me now. welcome. >> thank you. >> suarez: this is an ambitious big story. did you set out with an idea of telling so much scope?

>> i started out by trying to understand my ancestors, i come from poor landless peasants who have no record and i began to read the story of puerto rico and the more i read it the more i realized i would never find my own ancestors but i could make my imaginary ancestors and so the book emerges as a result of my trying to create the people that might have been. >> suarez: did you know much of the history before that? >> not as much. i left when i was 13 so whatever i learned in puerto rico in the schools that's all i remembered about the history. but the older i became, the more curious i was and so i would buy books about the history which i would bring back to the united states wherever i went there and so i owned a lot of it and i didn't read all of it until i became completely obsessed with the idea of finding my roots. >> suarez: now, tell me about this main... the heroine, anna.

/read an interview where you said "i worried i was creating a character who would have been impossible in that time and that place." and yet there she is. >> i do believe women like that existed i just don't think we have any records about them. one, they really didn't write, they were too busy doing what they needed to do and secondly the literature in the 19th century in puerto rico, 99% was written by men and women were just sitting around embroidering most of the time. so i knew that women like this existed. we just hadn't heard about them and so i had to create someone who was like... was a 19th century woman but also who was modern. >> suarez: a 19th century woman who runs a plantation and therefore has to deal with one of the overarching themes historically and in your novel, slavery. >> yes, and she is comes to puerto rico, she knew, she had heard, of course, that there was slavery but it wasn't until she

was there living among the slaves that she really understood what it meant. and she had a lot of conflicts about it. but she managed to get over it because she kept thinking to herself because she was thinking i have to work, i have to continue my work here and these are my tools. that's how she envisioned the slaves, as the tools she needed. >> suarez: what about for you? you felt the need to explore this history, obviously. particularly slavery. >> yes, well, you know, obviously i came from african descendents at some point, my dad is very dark, my mom is very fair so i know that somewhere along the lines of my father's side there would have been africans. i wanted to know who they are and how they lived and what happened to them. it was difficult. i have to admit that when i was reading the history and then when writing about it i went through the entire gamut of emotions from shame,

embarrassment to rage, anger to also admiration that they survived under the circumstances that they actually lived. >> suarez: we're, of course, not going to walk through the whole story here but i'm curious when you look at the history and create this... does it have reverberations for today? what did you learn about yourself and our society and puerto rico today? >> i started with the question how did we become puerto ricans and the first question is who are the people. and the people were very, very mixed not just from spain, people saying we all came from spain. no, there were people from ireland, from germany, from italy, we are just a real mixture with the native population and with the africans. so that was really exciting to read how mixed we are and how

many different cultures came to our little island and made puerto rico what it is. i also... i didn't know the history so it was very poignant for me because i realized at my age i know more about american history than i did about the history of my island. that was embarrassment and shame but also joy in the possibilities of learning about my ancestors and knowing a little bit more about me. >> suarez: there's another part of this story which i didn't know about until recently but i gather when you were finishing this you had a stroke. >> yes. >> suarez: and you lost your ability to read and write? >> yes for about a year. and i had to teach myself how to read and write over again. i had to relearn it. if i had not come to the united states at 13, if i had not had to learn the language, i would

have not realize that it was very much the same experience when i came here. i knew the alphabet. i would look at a book and the words made with so sense because it was a language i couldn't understand. >> suarez: so you were relearning the way you learned at 13. >> it was comprehension. my smoke completely affected comprehension. so even though i knew things were written and made sense, they didn't make sense to me and so i began by reading children's books all over again as i did when i first came and trying to connect the words to the objects and little by little i relearned it. >> suarez: now you're okay? i'm okay. i was able to finish the book! >> suarez: and you're here with the us. and did i read correctly this is the first of a trilogy? is more planned here? >> there's more planned because the history was so fascinating and these characters continued to emerge to my imagination and i would love to write another book that includes some of these

characters, not all of them, and that continues the history of puerto rico and how we became who we are. >> suarez: esmeralda santiago, nice to see you. >> very nice to see you, thank you. >> suarez: again, the major developments of the day: libyan rebels offered a $1 million bounty for moammar qaddafi, dead or alive. but he vowed to fight until victory or martyrdom. and hurricane irene grew stronger as it lashed the bahamas and headed toward the u.s. mainland. and steve jobs resigned as chief executive of technology giant apple. jobs is a cancer survivor who's been on medical leave since january. in a statement he said he can no longer carry out his duties. on our website, find more from esmeralda santiago, as well as other stories. kwame holman explains. >> holman: the novelist reads from "conquistadora" on art beat.

we have a photo essay from south dakota's black hills and more on the history of the native american land claim. plus read ray's blog post about somalis suffering from the famine and the political strife in mogadishu. that's on our global health page. all that and more is on our web site: newshour.pbs.org. ray? >> suarez: and that's the "newshour" for tonight. on thursday, we'll have a newsmaker interview with republican presidential hopeful and former utah governor jon huntsman. i'm ray suarez. >> brown: and i'm jeffrey brown. we'll see you online and again here tomorrow evening. thank you and good night. major funding for the pbs newshour has been provided by: and the william and flora hewlett foundation, working to solve social and environmental problems at home and around the

world. and with the ongoing support of these institutions and foundations. and... 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 macneil/lehrer productions captioned by media access group at wgbh access.wgbh.org