president of the united states thinks about this whole issue of the supreme court justice and this issue of empathy. we heard senator grassley and other republicans raise this issue. he had this exchange only a few weeks ago. >> i want somebody who has the intellectual fire power but also a little bit of a common touch and has a practical sense of how the world works. >> and that's what empathy is? >> well, that's what empathy is to me. and i think that that's -- those criteria of commonsense practic practicality, of what americans are going through every day. >> that sounds great but, yes, there is something wrong with t none of us would want to appear before a judge that has em that fee for someone else. we want a judge that has empathy for everyone. and so, yes, there's a problem with that. again, it's a question of whether you think a judge is a referee or whether the judge

should put his finger on the scale and tilt for one team. >> well, i think the supreme court isn't just a referee. if that were the case, we wouldn't have that kind of changes that have occurred in this country over the last two years. it requires an understanding of the real life impact of these decisions. that's why i think we heard both their concerns about where a law is made. most americans want a real understanding when the judges apply the law, understand what the consequences are. >> i think we're seeing big differences here. it's not just about confirming a judge. this is between republicans and democrats. republicans are saying that they are the party of rule of law, they are the party of a more literal interpretation of the law and fairness that way and democrats, they are trying to portray democrats here as the party that tilts in favor of one

group or another. this is, by the way, the old democratic party. so in the big picture here, we see an obama administration that is more big spending, a little weakness on foreign policy and now they seem to be going left on the court. this is a democratic party of 20 years ago. >> there has been an opinion of studies on race and in fact she's quite moderate and that she has rejected race-related claims by 8-1. so, indeed, she may have empathy but in fact she rules by what she considers to be the law, i would say. >> now that she should have done it nine times instead of eight. >> actually, when you review her

decisions, she's applying the law as to what the precedent is and -- >> jessica, there is a reason that there are nine supreme court justices. there are nine human beings and they are not machines. >> right. and i think both sides engage in linguistics here. whether the law permits abortion and -- they are political and legal decisions. the democrats want someone to advocate their decisions and the republicans want -- and that's fine. but everybody pretends that there's some correct political answer. >> go ahead. >> this is the problem here. nobody is a blank slate. you bring your experience to the

table, okay, and you see things slightly differently, depending on your experience. i think just from talking to some of these senators over time, what truly bothered them was that a wise latina woman could make a better decision than a wise white man without that experience. and that's why you heard the president say, okay, this was awkwardly -- >> there was a great point in dianne feinstein's statement. she said, these confirmation hearings have become almost useless because everybody is so careful to not say what they think about these issues. why not say what you think about roe v. wade. ginsburg used these hints about where they are going to stand. the candidate gets them in trouble -- >> and then they think that

these issues will come before them and they don't want to be prejudicial. we're going to take a quick break and continue our coverage. go back to the hearing. if you want to see these hearings uninterrupted, go to cnn.com/live. our coverage will continue after this.

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number of issues. explained this in the same venue where less than 24 hours earlier, judge sotomayor made her remarks about a wise latina woman making better decisions than a white male. as jurors, he said, recognize that you might have some biases or prejudices. recognize that it exists and determine whether you can control it so that you can judge the case fairly because if you cannot, if you cannot set aside those decisions or biases or passions, then you cannot sit on the case. and then judge baez said that it applies to judges. you take an oath that you promise to do justice to both the poor and the rich. the first time i heard this, he was startled by the significance.

i have my oath hanging on my wall. even though i'm a latino judge, as i judge cases, i try to judge them fairly. i try to remain faithful to my out. this describes the fundamental and proper role for a judge. unfortunately, someone has decided that it's time for a change, time for a new kind of judge, one who will apply a different standard of judging, including employment of his or her empathy to one of the parties of the dispute. that person is president obama and the question before us is whether his first nominee to the supreme court follows his new model of judges or the traditional model articulated by judge baez. president obama ended up opposing the nomination of chief roberts and constitutional construction, will dispose of

95% of the cases that come before our court. what matters on the supreme court is those 5% of the cases that are truly difficult. in those 5% of hard cases, the constitutional text will not be on point. the language of the statute will not be perfectly unclear, legal process alone will not lead to you a rule of decision. how does president obama propose that judges deal with these hard cases? does he want to use canons of construction and other interpretations that judges have used for centuries? no. president obama says, and i quote, in those difficult cases that critical ingredient is supplied by what is in the judge's heart. of course, every person should have empathy and in certain situation, such as sentencing, it may not be wrong for judges to be empathetic. the problem arises when other prejudices in the judge's heart become the critical ingredient

to deciding cases. as judge baez explained, the prejudices, biases, and passions should not be embraced. they must be set aside so a judge can render an impartial decision as required by the oath and as the parties before the court expect. i respectfully submit that president obama outside the mainstream in his statements about how judges should decide cases. i practice law for almost 20 years before every level of state and federal court, including the u.s. supreme court and never once did i hear a lawyer argue that he had no legal basis to sustain his client's position so he had to ask the judge to go with his gut or his heart. if judges routinely started ruling on the basis of their personal feelings, however well intentioned, the entire legitimate see of the judicial system will be jeopardized. the question is whether judge sotomayor agrees with president

obama's constitution and take seriously the oath of her respective office. many of judge sotomayor's statements indicate that she may allow biases and prejudices. the wise latina quote which i referred to earlier suggests that judge sotomayor endorses the view that a judge should allow gender and experience-based biases to guide her when are rendering judicial opinion. this is in stark contrast to judge baez's view that this should be set aside. in the same lecture, judge sotomayor says there is no objective stance but only a series of perspectives. no neutrality and no escape from judging and that aspiration is just that, it's an aspiration because it denies the fact that

we are, by our experiences, making different choices than others. no knew tralt, no impartiality in judging? yet isn't that what the judicial oath explicitly requires? judge sotomayor rejected the position that a new brand of justice. she's already accepted that her gender and latina heritage will affect the outcome of her cases. this is a serious issue and it's not the only indication that judge sotomayor has an expansive view on what a judge may appropriately consider. in a speech to the puerto rican, not use influence in the world. the laws and practices of foreign nations are simply irrelevant to interpreting the will of the american people as expressed through our constitution.

additionally, the vast expansive of what gives justices for promoting their personal preferences for the law. you can, therefore, understand my concern when i hear judge sotomayor say unless judges take it upon themselves to borrow ideas from foreign jurisdiction, america is going to -- and i'm quoting here, is going to lose influence in the world. that's not a judge's concern. some people will suggest that we shouldn't read too much into judge sotomayor's articles and the focus should be on her judicial decisions. i agree. that her judicial record is an important component of our evaluation. and i look forward to hearing why, for instance, supreme court has reversed or vacated 80% of her opinions that have reached that body by a total vote count of 52 to 19. but we can't simply brush aside

her statements. until now, judge sotomayor has been operating under the restraining influence of the supreme court. if confirmed, there will be no such restraint to decide cases based on her heart-felt views. before we can faithfully discharge our duty to advice and consent, we must be confident that judge sotomayor is absolutely committed to setting aside her biases and impartially deciding cases based on the rule of law. >> this is somewhat different than normal. senator schumer will be recognized for five minutes and will reserve his other five minutes for later on when he will be introducing judge sotomayor. the senator should be recognized

for four or five minutes. >> thank you. i want to welcome judge sotomayor. we in new york are so proud of you and your whole family, who i know are exceptionally proud to be here today to support this historic nomination. now, our presence here today is about a nominee who is supremely well qualified with the experience on the appellate court benches that is unmatched in recent history. it's about a nominee who in 17 years has offered opinion after opinion that is smart, thoughtful and judicial nally modest. in short, judge sotomayor has stellar credentials, there's no question about that. judge sotomayor has twice before been nominated to the bench, gone through confirmation hearings of bipartisan support and she was nominated by a republican president. but most important, judge sotomayor's record speaks judicial modesty, something that

our friends on the right have been clamoring for in a way that no recent nominees has. it is the judicial record, more than speeches and statements, more than personal background that accurately measures how modest a judicial nominee will be. there are several ways of measuring modesty in the judicial record and judge sotomayor more than measures up to each of them. first, as we'll hear in the next few days, judge sotomayor puts rule of law above anything else. i'm not sure how any member of this panel can sit here today and seriously suggests that she comes to the bench with a personal agenda. unlike justice alito, you don't come to the fabtable of record discents. she's in the mainstream. she's agreed with republican colleagues 95% of the time.

she's ruled for the government in 83% of immigration cases against the immigration plaintiff. she has ruled for the government in 94% of -- >> senator schumer is delivering brief remarks. he will formally introduce her just before her statement. we'll take a break. our coverage will continue right after this. remember, cnn.com, you can see all of this streamed live uninterrupted. kelly saunder's nature valley, the place that inspires her to go faster... and slower, elk mountains, colorado. where's yours? 100% natural nature valley granola bars.

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lindsey graham, the senator

from south carolina is getting ready to make his opening statement right now. it's going to be significant to hear whether he will confirm or reject this nominee. >> an immigrant that came to this as a teenager and graduated in harvard in 1986 and a stellar background like yours. that's just the way it was. he never had a chance to have these hearings. he was nominated by president bush to the d.c. circuit court of appeals, which some people will agree that that's probably the highest court in the land. and he never had this day. so the hispanic element of this hearing is important but i don't want it to be lost that this is mostly about politics more than anything else and having said that there is some of my colleagues on the other side that voted for judge roberts and alito knowing that they would

not have chosen either one of those. and i will remember that. now, unless you have a complete melt down, you're going to get confirmed. and the drama is being created here is interesting and my republican colleagues who vote against you, i assure you, could vote for an hispanic nominee. they just feel unnerved by your speeches and by some of the things that you've said and some of your cases. now, having said that, i don't know what i'm going to do yet, but i do believe that you as an advocate with a puerto rican legal defense fund, that you've taken on some cases that i would have loved to have been on the other side. that your organization supported tax paid abortion, to deny a poor black woman medicaid

funding for an abortion was equivalent to the scott case. that's a pretty extreme thing to say but i think it was heartfelt. i would look at it the other way, to take my taxpayer dollars and provide an abortion -- to pay for an abortion i disagree with is pretty extreme. so there's two ways of looking at that. you were a prosecutor but the organization argued to repeal the death penalty because it was discriminatory against minorities. your organization argued for quotas when it came to hiring. i just want my colleagues to understand that there can be no liberal group than the puerto rican legal defense fund than when it came to advocacy. i hope when we ever get a c conservative president, that we will not forget this moment. that you can be nra president and still be a good lawyer. my point is that i'm not going

to criticize you for advocating a -- that makes america a special place. i would love to have been the cases on the other side that would disqualify me. now, when it comes to your speeches, that is the most troubling thing to me because that gives us an indication when you're able to get outside the courtroom and give an insight into how life works. if i had said anything remotely like that, my career would have been over. that's true of most people here. and you need to understand that and i look forward to talking to you about that comment. does that mean that i think you're racist? you've been called some pretty bad things. no. that just bothers me when someone wearing a robe takes the robe off and says that their experience makes them better than someone else.

i think your experience can add a lot to the court but i don't think it makes you better than anyone else. now, when i look at your record, there's a lot of truth to what senator schumer said. i don't think you've taken the opportunity on the circuit to be a caused-driven judge. but what we're talking about here today is what will you do when it comes to making policy and i'm pretty well convinced i know what you're going to do. you're probably going to decide cases differently than i would. so that brings me back to, what am i supposed to do knowing that? i don't think anybody here worked harder for senator mccain than i did, but we lost and president obama won. and that ought to matter. it does to me. now, what standard do i apply? i can assure you that if i applied senator obama's standard to your nomination, i wouldn't vote for you. because the standard that he articulated would make it

impossible for anybody with my view of the law in society to vote for someone with your activism and background when it comes to lawyering and judging. and he said something about the 5% of the cases that we're all driven by. he said something to the effect in those difficult cases, the critical ingredient is supplied by what is in the judge's heart. well, i have no way of knowing what is in your heart any more than you have of knowing what is in any heart. so that, to me, is an absurd danger standard and maybe something good could come out of these hearings. if we start applying that to nominees, it will ruin the judiciary. i have no idea what's in your heart any more than you have an idea of what is in my heart and i think it takes us down a very dangerous road as a country when we start doing that. now, there was a time when

someo someone like ginsburg got votes and any more than if you were a mystery about what justice ginsburg was going to do in 5% of the cases. that is no mystery. there's some aspect, which i'm not sure about, that gives me hope that you may not go down the senator feingold's path with the war on terror. generally speaking, a good character, someone who has lived a very full and fruitful life, who is passionate from day one, from the time you got a chance to show who you are, you've stood out and you've stood up and you've been a strong advocate and you will speak your mind. and the one thing i'm worried about is that if we keep doing what we're doing, we're going to

deter people from speaking their mind. i don't want milk toast judges. i want you to be able to speak your mind but you've got to be able to understand that when you gave these speeches as a sitting judge, that was disturbing to me. i want lawyers who believe in something and are willing to fight for it. and i don't want the young lawyers of this country feeling like there's certain clients that they can't represent because when they come before the senate it will be the end of their career so i don't know how i'm going to vote, but my inclination is that elections matter and i'm not going to be upset with any of my colleagues who find that you are bridged too far because, in many ways, what you've done in your legal career and the speeches that you've made give me great insight as to how you'll come out on the 5% of the cases. president obama won the election and i will respect that.

but when he was here he said in motion a standard i thought that was more about seeking the presidency than the nominee. when he said a critical ingredient is supplied by what is in the judge's heart, translated that means, i'm not going to vote against my blefs because i'm voting for the president. you will be asked hard questions and i think you expect that. and my belief is that you will do well. because whether or not i agree with you on the big theme to life is not important. the question for me is, have you earned the right to be here? and if i give you this robe to put you on the supreme court, do i believe that at the end of the day you will do what you think is best? that you have courage and that you will be fair? come thursday, i think i'll know more about that. good luck.

>> thank you. just note, just so we make sure that we are all doing the same things -- so there you have the senator from south carolina, lindsey graham, delivering a statement, hinting, sort of, you know what, he may vote to confirm sonia sotomayor as the supreme court justice if, in fact, he likes what he hears over the next few days. certainly he's suggesting that he's open-minded about it and he's going to have a different standard in loading yea or nay than barack obama had on the alito confirmation process. jeff toobin, he said barring some major disaster on her part that she will be confirmed. >> i thought it was an interesting statement. it really went to the heart of the dilemma of what does advise and consent mean? he's saying, when the president wins, if he nominates a

qualified person, it's the senate's job to confirm them. elections have consequences. but on the other hand, he's saying, look, i don't want to vote for someone's ideology that i don't share. that is what barack obama proposed that his standard was when he was a senator. so that tension has been around for centuries in the united states over the senate's role. do you just ratify a president making a choice that is reasonable or do you vote for your own ideology -- >> because by and large when it came to other liberal justices who were nominated, like ginsburg, they voted overwhelmingly for her even though they didn't like her policy. >> overwhelmingly. 90% votes for ginsburg. but this has become so poll littized, i think we've seen the last 90% votes of any nominee.

60-40, that's where i think we'll be. >> candy, you've spient a lot o time covering lindsey graham over the years and he made a point, no one worked harder for mccain than he did. he was at his side almost every single day. but he said that elections have consequences. >> absolutely. if i had to guess right now, i'd say that he will vote for her. if he does vote for sotomayor, he does give an enormous amount of cover because is he a leader in the senate for republican senators who are up for re-election to say -- especially those in democratic-leaning states, they can go with him. and i think that was an important, sort of balanced statement that those republicans will listen to. >> hold your thoughts, guys. i want to take a quick break. remember, we're standing by to hear from president obama. he's about to nominate a surgeon general of the united states. the top doctor in the united states. you're looking at live pictures

there at the rose garden over at the white house. we'll have coverage of that and much more of these confirmation hearings right after this. welcome to the now network. population 49 million.

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so don't wait any longer, call the scooter store today. the confirmation hearings for sonia sotomayor are continuing right now before the senate judiciary committee but they are about to take a ten or 15 minute break. during the course of this break, the president of the united states is getting ready to announce a new surgeon general for the united states. you're looking at the live pictures from the rose garden. it looks like the white house coordinating the timing of this announcement before the break with the senate judiciary

committee. we'll have live coverage of that announcement. tony harris has other important news that we're following as well. tony, lots of stuff going on? >> absolutely. let's get you caught up. let's get you caught up on the other stories in the news today. three people have been charged in connection with the killings of a florida couple who took in special needs children. two suspects are due in court today. bryd and melanie billings were shot in their home. they had 13 adopted children. none of the kids were injured. one of the couple's daughters spoke passionately about her parents. >> our mom and dad spent most of their time together. they shared the daily duties of getting the children ready for school, getting the children off the bus in the afternoons, and always preparing and having dinner together as a family, installing values and tradition in the children was very

important to them. those who met any of the billings children know how well-behaved they are. christmas was always our favorite holiday in the billings' house. our mom never left out anything when it came to christmas. my mother and father touched many, many lives. >> the local sheriff says there are more suspects but they are releasing few details. >> former vice president dick cheney is now at the center of a heated debate of a secret cia programs. ly leon panetta said that he had just secret program and now the walls journal reports that the program was a plan to kill or capture al qaeda operatives. 11 people killed in the explosion, eight of them

children. the blast happened about 220 miles south of the capital of islamabad. let's get you back to wolf blitzer now in washington. wolf? >> tony, thank you very much. i want to show you a live picture at the rose garden. the president is getting ready to announce the surgeon general of the united states. we'll have live coverage of that. the historic confirmation hearings of sonia sotomayor and she's now before the judiciary committee. the opening statements are continuing. our coverage of all of this will continue right after this. to stay in tune with life after 50,

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committee is now in recess. you're looking at these live pictures of the u.s. supreme court. a beautiful day here. the members are in recess. judge sonia sotomayor is taking a little break herself. they will resume these confirmation hearings in about ten or 15 minutes or so. meanwhile, we're waiting momentarily for president of the united states to walk out of the west wing of the white house from the oval office and go down those stairs into the rose garden where he will nominate a new surgeon general of the united states. the president will make that announcement and we expect that to be very, very shortly. while we await the president and while the judiciary committee is in recess, let's assess what we just heard so far, these opening statements from democrats and republicans. there are 19 members of the senate judiciary committee. 12 democrats, 7 republicans. we perhaps are maybe halfway through the opening statements

so far. one of the most important statements came from senator jeff sessions, the republican senator from alabama. he is the top republican on the committee. and he directly addressed one of the most important issues facing this nominee. the whole issue of the president's attitude towards empathy. >> and i fear that this empathy standard is another step down the road to a liberal activist results oriented world where laws lose their fixed meanings and americans are seen as members of separate groups rather than as simply americans where the constitutional limits on government power are ignored when politicians want to buy out private companies. >> maria is better helping us understand what is going on. she's a democrat that teaches law at the university of california, berkeley. how do you expect sonia sotomayor to respond to that issue of empathy and activist

judges once she begins to answer her questions? >> i think there's two things that she can do. one is she can direct the senators to look at her judicial record where they will see that, in fact, she has been constrained by the president, she has looked carefully at the law, and that while she may be empathetic to certain claims, she followed what she thought was the right interpretation of the law. so that argues for a less activist. indeed, there are many folks on the left who have real questions about just how liberal is she. it's surprising that republicans have tried to paint her. as a sense f. you're a woman latina, it's automatically assumed that you're going to be a liberal. i can't tell you how many times people assumed that because i was a latina lawyer and i did bankruptcy, i was representing poor individuals. actually, no, i was representing big companies. >> you don't even like poor

people. >> this is really an issue that she didn't raise. the president of the united states raised the issue. >> the president raised the issue, but also her speech, which i think lindsey graham hit on in his opening statements. but concern about the statements that she's made in which she said not only raised the empathy standard herself but it would help her decide which facts a judge should see. and those, i think, are the concerns that when you said the president said we need someone with empathy and she says it would shape her decisions, those statements that talk about a revolving standard. what does that mean? those are questions that we should ask. >> guys, hold all of those

thoughts. we're going to continue this discussion of this nomination, this confirmation hearing. but within a few seconds the president of the united states will be walking out of the oval office, together with his nominee to become the nation's surgeon general, the top doctor of the united states. and he selected someone with a rather extraordinary background. he will give us all of the information about this nominee, dr. regina benjamin. she herself has gone back many, many years, a mccar tur fellomcr fellow. she dealt with the katrina aftermath. that is coming up right now. a lot of people, gloria borger, do not appreciate how important the surgeon of the united states. >> it's a spokesman for administration on issues that affect us every day regarding the public health. whether it's swine flu, whether

it's childhood obesity, and it kind of sets the standard for t government's approach to health poll. >> i candy, you've covered a lot of these surgeons general over the years. some of them have been rather colorful as we know. >> c. everett koop comes to mind. this is where empathy matters. this is a good thing now so i predict that she will sail through. nonetheless this is a woman, rural i think is very interesting. i mean, she was a way rural doctor who often treated people for free, made house calls, said pay me what you can, so this is a trenches doctor, and it will also -- janet napolitano doesn't have to explain swine flu to us when it comes back this fall, so i think there are lots of things that a surgeon general can do, and first and foremost it is about the public. >> and it's also in keeping with the administration's emphasis on public service and giving back

because her tuition for college was paid by something called the national health service corps. in exchange for that, she went back and performed public service by opening up a health clinic for people under the poverty line, and so it's -- it's something that the administration has been talking about an awful lot in terms of ed case and then giving back. >> and we are bracing, jeff toobin, as you and our viewers know, here comes the president right now, for a lot of health-related issues, but the president is getting ready to speak to introduce this nominee for surgeon general of the united states, so we'll listen. >> before i introduce america's next surgeon general, i'd like to say a few words about our ongoing efforts to reform the health care system that she will help oversee. we are now closer to the goal of health care reform than we have ever been. over the last several weeks key committees in the house and the

senate have made important and unprecedented progress on a plan that will lower costs, provide better care for patients and curb the worst practices of the insurance companies. it's a plan that will not add to our deficit over the next decade. let me repeat that. it is a plan that will not add to our deficit over the next decade, and eventually will help lower our deficit by slowing the skyrocketing costs of medicare and medicaid. even though we are close, i've got no illusions that it's going to be easy to get over the finish line. there are going to be more debates and more disagreements before all is said and done, but health care reform must be done. i know there are those who believe we should wait to solve this problem or take a more incremental approach or simply do nothing, but this is the kind of criticism we heard when the country tried to pass medicare, a program that is now providing quality care to generations of

american seniors. it's the kind of criticism we heard when we tried to pass the children's health insurance program which has provided quality care and coverage to millions of kids. the same washington thinking that has ignored big challenges and put off tough decisions for decades, and it is precisely that kind of small thinking that has led us into the current predicament. so make no mistake. the status quo on health care is no longer an option for the united states of america. if we step back from this challenge right now, we will leave our children a legacy of debt, a future of crushing costs that bankrupt our families, our businesses and because we will have done nothing to bring down the costs of medicare and medicaid, will crush our government. premiums will continue to skyrocket placing what amounts to another tax on known families struggling to pay bills. the insurance companies and special interests that have killed reform in the past will

only continue to benefit even more, and they will continue to deny coverage to americans with pre-existing medical conditions. people will continue to lose health insurance just because they lose their job or they change jobs. this is a future that we cannot afford. this country can't afford to have health care premiums rise three times faster than people's wages as they did over the last decade. we can't afford 14,000 americans losing their health care every single day. we can't afford a future where our government will eventually spend more on medicare and medicaid than what we spend on everything else. during the campaign i promised health care reform that would control costs, expand coverage and ensure choice, and i promised americans making $250,000 a year or less would not pay more in taxes. these are promises that we're keeping as reform moves forward.

this is no longer a problem we can wait to fix. this is about who we are as a country. health care reform is about every family's health, but it's also about the health of the economy, so i just want to put everybody on notice, because there was a lot of chatter during the week that i was gone. we are going to get this done. inaction is not an option, and for those nay sayers and cynics who think that this is not going to happen, don't bet against us. we are going to make this thing happen because the american people desperately need it, and even those who are satisfied with their health care right now, they understand that if premiums keep on doubling and if employers keep on shedding health insurance because it's unsustainable, and if you look at the trajectory of where medicare and medicaid are going, then inaction will create the biggest crisis of all, and so i understand people are a little

nervous and a little scared about making change. the muscles in this town to bring about big changes are a little atrofied but we're whipping folks back into shape. we are going to get this thing done, and if there's anyone who understands the urgency of meeting this challenge in a personal and powerful way, it's the woman who will become our nation's next surgeon general, dr. regina benjamin. the list of qualifications that make dr. benjamin an outstanding candidate to be america's leading spokesperson on issues of public health are long indeed. she was in the second class at moorehouse school of medicine and went on to earn an md from the university of alabama at birmingham and an mba from tulane. she served as associate dean for rural health at the university of south alabama college of medicine, and in 1995 she became

the first physician under 40 and the first african-american woman to be named to the american medical association's board of trustees. in 2002 she became president of alabama's state medical association, and she's received numerous awards and recognitions, including the mcarthur genius award. that's very impressive. but of all these achievements and experience, none has been more pertinent to today's challenges or closer to regina's heart than the rural health clinic that she has built and rebuilt in bayou la batchtree, did i say that right? bayou la batchtree, that's in alabama, people. it's a rural town of about 2,500 people. it's a shrimping town where a lot of folks work for themselves, scrape by and can't

usually afford health insurance, and by the way, dr. benjamin, while we were talking in the oval office, described for me the demographics of this town are actually very interesting because you've got whites, blacks and asians in this community. there are a lot of laotans and cambodians who have moved there and are a part of this shrimping town, so it's a diverse but very poor rural community, and like so many other rural communities doctors and hospitals are hard to come by, and that's why even though she could have left the state to make more money as a specialist or as a doctor in a wealthier community, regina benjamin returned to alabama and opened a small clinic in bayou la batchtree. when people couldn't pay, she didn't charge them. when the clinic wasn't making money, she didn't take a salary for herself. when hurricane george destroyed the clinic in 1998, she made

house calls to all her patients while it was rebuilt. when hurricane katrina destroyed it again and left most of her town homeless, she mortgaged her house and maxed out her credit cards to rebuild that clinic for a second time. she tended to those who had been wounded in the storm and when folks needed medicine, she asked the pharmacist to send the bill her way. and when regina's clinic was about to open for the third time, a fire burned it to the ground before it could serve the first patient. well, you can guess what dr. benjamin did. with help from her community, she is rebuilding it again. one disabled patient brought her an envelope with $20 inside. another elderly man said simply, "maybe i can help. i've got a hammer." for nearly two decades dr. regina benjamin has seen in a very personal way what is broken about our health care system. she's seen an increasing number of patients who have had health insurance their entire lives

suddenly lose it because they lost their jobs or because it's simply become too expensive. she's been a relentless promoter of prevention and wellness programs, having treated too many costly and diseases and complications that didn't have to happen, and she's witnessed the shortage of primary care physicians in the rural and underserved areas where she works, but for all that she's seen and all the tremendous obstacles that she has overcome, regina benjamin also represents what's best about health care in america. doctors and nurses who give and care and sacrifice for the sake of their patients, those americans who would do anything to heal a fellow citizen. through floods and fires and severe want, regina benjamin has refused to give up you. her patients have refused to give up, and when we were talking in the oval office, she said one thing i want to do is make sure that this surgeon general's office gives voice to patients, that patients have a seat at the table.

somebody is advocating for them and speaking for them, and now we in washington and across america have to refuse to give up on the goal of health care that is affordable and accessible for every last one of us. we don't have to deal with hurricanes and we don't have to deal with floods and fires. all we have to do is pass a bill to make sure that the american people have a decent shot at getting the kind of choice and high quality health care that's affordable. i know that dr. benjamin is going to help us get there as the next surgeon general, and i am truly honored to nominate her for that post, and second sebelius is equally excited, even though she's just standing here. with that, let me introduce the next surgeon general of the united states, dr. regina benjamin. it's kind of how the out here. >> thank you, mr. president, and

thank you secretary sebelius for being here with me. i am honored and i am himbled to be nominated to serve as the united states surgeon general. this is a physician's dream, but for me it's more than just a job. public health issues are very personal to me. my father died with diabetes and hypertension. my older brother and only sibling died at age 44 of hiv-related illness. my mother died of lung cancer because as a young girl she wanted to smoke just like her twin brother could. my uncle buddy, my mother's twin, who is one of the few surviving black world war ii prisoners of war is at home right now on oxygen struggling for each breath because of the years of smoking. my family is not here with me today, at least not in person, because of preventable diseases.

while i can't or i cannot change my family's past, i can be a voice in the movement to improve our nation's health care and our nation's health for the future. these are trying times in the health care field, and as a nation we have reached a sobering realization. our health care system simply cannot continue on the path that we are on. millions of americans can't afford health insurance, or they don't have the basic health services available where they live. i went back home to alabama as part of my obligation to the national health service corps. it's a program that provides underserved communities in america with qualified conditions. the national health service corps paid for my medical school ed case and in return placed me in an area that desperately needed physicians, and i stayed. so, in 1990 i founded the bayou

la batchtree rural health clinic in rural alabama and as a physician my priorities have always been the needs of my patients. i decided i would treat patients regardless of their ability to pay. however, it's not been an easy road. as it's been explained hurricanes destroyed my office and devastated our community, and for years i've worked to find resources to sustain a doctor's office that treats patients without health insurance or the ability to pay out of their pocket. it should not be this hard for doctors and other health care providers to care for their patients. it shouldn't be this expensive for americans to get health care in this country. mr. president, thank you for putting health care reform at the top of your domestic agenda. my hope if confirmed as surgeon general is to be america's doctor, america's family physician. as we work towards a solution to this health care crisis, i

promise to communicate directly with the american people, to help guide them through whatever changes may come with health care reform. i want to ensure that no one, no one falls through the cracks as we improve our health care system. i will also work to shine a light on the inspiring work of the 6,200 members of the u.s. public health service commission corps. these men and women serve on the front lines in the nation's fight against disease and poor health conditions. i would like to close by thanking two of my medical school professors. first, former surgeon general dr. david satcher who instill in me a passion for community medicine. as a medical student he required me to go out into the small towns, spend time with rural physicians and participate in public health projects. those experienced no doubt led me to open my practice in bayou la batchtree. i must also thank former

secretary of health and human services dr. louis sullivan. dr. sullivan was my dean and he taught me hematology, but more importantly he taught me leadership. from him i learned how to impact policy at the federal, state and local levels to help our patients and to help our community. i'm indebted to both of my mentors. and finally i would like to thank my staff and my patients at our rural health clinic. all of the work over the past 20 years have been for them and for patients like them, today i no different. so thank you, mr. president, for having the confidence in me, and if confirmed, i promise i will give you and the american people my best. thank you. >> all right. there it is, dr. regina benjamin, a physician from the south and nominated by president obama to become the nation's

surgeon general. let's hear what he's saying right now. >> what about your attorney general's decision to look into the bush administration? >> he's not answering questions from reporters. they are shouting questions, but he's not answering them. he nominated dr. regina benjamin to be the surgeon general, but before that he took some time to make it clear that he is by no means, no means, giving up on health care reform. the president saying we are going to get this done. inaction, he says, is not an option. don't bet against us, the president says. we are going to make this happen. a major fight over health care reform under way in washington right now. also under way right now the confirmation hearings of sonia sotomayor to become the nation's next justice on the u.s. supreme court. senator john cornyn, republican of texas, is delivering his opening statements. >> they need to know, we need to know whether you would limit the scope of the fifth amendment and whether you would expand the

definition of public use by which government can take private property from one person and give it to another. and we need to know whether you will uphold the plain language of the equal protection clause of the 14th amendment promising that no state shall deny to any person within its jurisdiction the equal protection of the laws. judge, some of your opinions suggest that you would limit some of these constitutional rights and some of your public statements that have already been mentioned suggest that you would invent rights that do not exist in the constitution. for example, in 2001 speech you argued that there is no objectivity in law but only what you called a series of perspectives rooted in life experience of the judge. in a 2006 speech you said that judges can and even must change the law, even introducing what you called quote, radical change, close quote, to meet the needs of an evolving society.

in a 2009 speech you endorsed the use of foreign law anyone term tinge the american constitution on the grounds that it gives judges, quote, good ideas, close quote, that, quote, get their creative juices flowing, close quote. judge sotomayor, no one can accuse you of not having been candid about your views. not every nominee is so open about their views, yet many americans are left to wonder whether these various -- what these various statements mean and what you're trying to get at with these various remarks. some wonder whether you're the kind of judge who will uphead the written constitution or the kind of judge who will veer us off course and towards new right invented by judges rather than ratified by the people. these are some of my concerns, and i assure you will have every opportunity to address those and make clear which path you would take us down if you were confirmed to the supreme court. i thank you very much and

congratulations once again. >> thank you very much, senator cornyn. senator whitehouse. >> thank you, mr. chairman. judge sotomayor, welcome. welcome to you and to your family. your nomination caps what has already been a remarkable legal career, and i join many, many americans who are so proud to see you here today. it's a great country, isn't did, and you represent its greatest attributes. your record leaves no doubt that you have the intellectual ability to serve as justice. from meeting with you and from the outpouring of support i've experienced, both personally and from organizations that have worked with you, your demeanor and your collegiality are well established. i appreciate your years as a prosecutor working in the trenches of law enforcement. i'm looking forward to learning more about the experience and judgment you are poised to bring

to the supreme court. in the last two and a half months and today my republican colleagues have talked a great deal about judicial modesty and restraint. fair enough to appoito a point fair enough when those words become slogans, not real critiques of your. indeed, these calls for restraint and modesty and complaints about activist judges are often code words seeking a particular kind of judge who will deliver a particular set of political outcomes. it is fair to inquire of a nominee of judicial philosophy and we who are here will have a fair and serious inquiry, but the pretense that republican nominees embody modesty and restraint where the democratic

nominees must be activists runs starkly counter to recent history. i particularly reject the analogy of a judge to an umpire who merely calls balls and strikes. if judging were that mechanical, we would not need nine supreme court justices. the task of an appellate judge, particularly on a court of final appeal, is often to define the strike zone within a matrix of constitutional principle, legislative intent and statutory construction. the umpire analogy is belied by chief justice roberts, though he cast himself as an umpire during his confirmation hearings. jeffrey toobin, a well respected legal commentator has recently reporter that, and this is a quote, in every major case since he became the nation's 17th chief justice roberts has sided with the prosecution over the

defendant, the state over the condemned, the executive branch over the legislative and the corporate defendant over the individual plaintiff. some umpire. and is it a coincidence that this pattern to continue toobin's quote has served the interests and reflected the values of the contemporary republican party? some coincidence. for all the talk of modesty and restraint, the right wing justices of the court have a striking record of ignoring precedent, overturning congressional statutes, limiting constitutional protections and discovering new constitutional rights. the infamous ledbetter decision, for instance, the louisville and seal integration cases. the first limitation on "roe v. wade," that outright disregards the woman's health and safety,

and the d.c.hellor decision, discovering a constitutional right to own guns that the court had not previously noted in 220 years. some balls and strikes. over and over news reporting discusses fundamental changes in the law brought by the roberts' courts right wing flank. the roberts' court has not kept the promises of modesty or humility made when president bush nominated justices roberts and alito. so judge sotomayor, i would like to avoid code words and look for a simple pledge from you during these hearings, that you will respect the role of congress as representatives of the american people, that you will decide cases based on the law and the facts, that you will not pre-judge any case but listen to every party that comes before you and that you will respect precedent and limit yourself to the issues that the court must

decide, in short, that you will use the broad discretion of a supreme court justice wisely. let me emphasize that broad discretion. as justice stevens has said, the work of federal judges from the days of john marshall to the present, like the work of the english common law judges, sometimes requires the exercise of judgment, a faculty that inestbly calls into play notions of justice, fairness and concern about the future impact of a decision. look at our history. america's common law inheritance is the acretion over generations of individual exercises of judgment the. our constitution is a great document that john marshall noted leaves the minor ingredients to judgment, to be deduced by our justices from the document's great principles. the liberties in our constitution have their boundaries defined in the gray and overlapping areas by informed judgment. none of this is balls and strikes. it's been a truism since marbury

versus madison that courts have the authority to say what the law is, even to invalidate statutes enacted by the elected branches of government when they conflict with the constitution, so the issue is not whether you have a wide field of discretion. you will. as justice cardosa reminds us, you are not free to act as a night errant roaming at will in pursuit of your own ideal of beauty or of goodness, yet he concluded wide enough in all conscience is the field of discretion that remains. >> senator whitehouse wrapping up his opening statement during the confirmation hearings for sonia sotomayor to become the next supreme court justice. one more republican has to speak, senator tom coburn of oklahoma. we're anxious to hear what he has to say. he's a very conservative senator, and his remarks potentially could be significant. we'll take a quick break. we'll continue our coverage after this. remember, cnn.com, you can see all of these confirmation

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good choice. only meineke lets you choose the brake service that's right for you. and save 50% on pads and shoes. meineke. we're continuing our coverage of the senate judiciary committee confirmation hearings of sonia sotomayor to become a justice of the united states supreme court. senator tom coburn, a republican of oklahoma, is now making his opening statement. >> as we probe the areas where we have concerns. there is no question that you have a stellar resume, and if resumes and judicial history were all that we went by, we wouldn't even need to have this hearing, but in fact other things add into that.

equally important to us providing consent on this nomination is our determination that you have a judicial philosophy that reflects what our founders intended. there's great division about that, and i also wanted to note that i thought that this was your hearing, not judge roberts' hearing and that the partial-birth abortion ban was passed by the united states congress and upheld by the supreme court, so i have a different point of view on that. as i expressed to you in our meeting, i think our nation is at a critical point. i think we're starting to see cracks, and the reason i say that is because i think the glue that binds our nation together isn't our political philosophies. we have very different political philosophies. the thing that binds us together is an inate trust that you can have fair and impartial judgment

in this country, that we, better than any other nation when we've been wrong have corrected the wrongs of our founding, but we have instilled the confidence that in fact when you come before there is blind justice, and that in fact allows us the ability to overlook other areas where we are not so good because it instilts ls in us the opportunity to have a fair hearing and a just outcome. i am concerned, as many of my colleagues, with some of your statements, and i don't know if the statements were made to be provocative, or if they are truly heartfelt in what you have said, but i know that some of those concerns will guide my questioning when we come to the questioning period, and you were

very straightforward with me in our meeting, and my hope is that you will be there as well. i'm deeply concerned by your assertion that the law is uncertain. that goes completely against what i just said about the rule of law being the glue that binds us together, and your praise for an unpredictable system of justice, i think we want it to be predictable. we want is it to be predictable in its fairness and the fact in how cases are viewed, and it doesn't -- it shouldn't matter which judge you get. it should matter what the law is and the facts are. and i'm worried that our constitution may be seen to be malleable and evolving when i as someone who comes from the heartland seems to grasp and hold and the people that i represent from the state of oklahoma seem to grasp and hold that there is a foundational document, and there are statutes

and occasionally treaties that should be the rule rather than our opinions. other statements such as the court of appeals is where policy is made. that is surprising to me, and as i look at our founders, the court is to be a check, not a policy-maker. your assertion that ethnicity and gender will make someone a better judge, although i understand the feelings and emotions behind that, i'm not sure that that could be factually correct, maybe a better judge than some, but not a better judge than others. there is -- the other statement, there is no objective stance but only a series of perspectives, no neutrality, no escape from choice in judging. what that implies, the fact that it's subjective implies that

it's not objective, and if we disregard objective consideration of facts, then all rules are subjective, and we lose the glue that binds us together as a nation. even more important is the -- your questioning of whether the application of impartiality and judging, including transcending personal sympathies and prejudices is possible in most cases, or is even desirable is extremely troubling to me. you've taken the oath already twice, and if confirmed will take it again, and i want to -- i'm going to repeat it again. it's been said once this morning. here's the oath. i do solemnly swear or affirm that i will administer justice without respect to persons and do equal right to the poor and to the rich and will faithfully and impartially discharge and perform all the duties incumbent upon me under the constitution

and the laws of the united states, so help me god. it doesn't reference foreign law anywhere. it doesn't reference whether or not we lose influence in the international community. we lost influence when we became a country in the international community to several countries, but the fact that did not impede us from establishing this great republ republic. i think this oath succinctly captures the role of the judge, and i'm concerned about some of your statements in regard to that. ow judicial philosophy might be, and i'm not saying that it is, inconsistent with impartial, neutral arbiter the oath describes. with regard to your judicial philosophy, the burden of proof rests on you, but in this case that burden has been exaggerated by some of your statements and also by some of president obama's stated intent to nominate someone who is not impartial but instead favors

certain groups of people. during the campaign he promised to nominate someone who has got the heart, the empathy to recognize what it's like to be a young teenage mom. the implication is that our judges today don't have that. do you realize astounding that is? the empathy to understand what it's like to be poor, to be african-american or gay or disabled or old. most of our judges understand what it's like to be old. senator obama referred his empathy standard when he voted against chief justice roberts. he stated the tough cases can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspective on how the world works and the depth and breadth of one's empathy. i believe that standard is antithetical to the proper role of a judge. the american people expect our judges to treat all litigants equally, not to favor and not to ent you are the courtroom

already prejudiced against one of the parties. that's why lady justice is always depicted blind. and why aristotle defined law as reason free from passion. we expect a judge to merely call balls and strikes, maybe so, maybe not, but we certainly don't expect them to sympathize with one party over the other, and that's where empathy comes from. judge sotomayor, you must prove to the senate that you will adhere to the proper role of a judge, and only base your opinions on the constitution statutes and when appropriate treaties. that's your oath. that's what the constitution demands of you. you must demonstrate that you will strictly interpret the constitution and our laws and will not be swayed by your personal biases or your political preferences, which

you're entitled to. as alexander hamilton stated in federalist paper number 78, the interpretation of the laws, the proper and peculiar province of the courts. the constitution, however, must be regarded by the judges as fundamental law. he further stated it was indispensable in the courts of justices that judges have an inflexible and uniform adherence to the rights of the constitution, a nominee who does not adhere to these standards necessarily rejects the role of a judge as dictated by the constitution and should not be confirmed. i look forward to a respectful and rigorous interchange with you during my time to question you. i have several questions that i hope you will be able to answer. i will try not to put you in a case where you have to answer a future opinion. i understand your desire in that regard, and i respect it. i thank you for being here, and i applaud your accomplishments.

may god bless you. >> thank you. senator, we've been joined by the deputy majority leader senator durbin, and just so those who could plan, especially you, judge, we'll hear from senator durbin. we'll then recess until 2:00, and we'll come back at 2:00, at which point senator klobuchar will be -- will be recognized. senator durbin. >> thank you very much, mr. chairman. judge sotomayor, welcome to you and your family. these nomination hearings can be long and painful, but after surviving a broken ankle and individual meetings with 89 different u.s. senators in the past few weeks, you are certainly battle tested. at the nomination hearing for judge ruth bader ginsberg in

1993 my friend senator paul simon of illinois asked the following question. you face a much harsher judge than this committee. that's the judgment of history, and that judgment is likely to revolve around the question did she restrict freedom or did she expand it? i ask this question with respect to the nominations of chief justice roberts, justice alito, and i think it's an important question of any court nominee, particularly to the supreme court. the nine men and women on the supreme court serve lifetime appointments and may resolve many of our most significant issu issues. it's the supreme court that defines our personal right to privacy and decides the restrictions that can be placed on the most personal aspects of our lives. the court decides the rights of the victims of discrimination, immigrants, consumers. the nine justices decide whether congress has the authority to pass laws to protect our civil rights and our environment. they decide what checks will

exist on the executive branch in war and in peace. because these issues are so important we need justices with intelligence, knowledge of law, the proper judicial temperament and a commitment to impartial justice. more than that we need our supreme court justices to have an understanding of a real world and the impact their decisions will have on everyday people. we need justices whose wisdom -- >> the officer will remove the person. the officer will remove the person. we will stand -- as i've said before and both senator sessions and i have said, you are guests of the senate while you are here. everybody is a guest of the senate. judge sotomayor deserves respect to be heard. these senators deserve the respect of being heard. no outbursts will be allowed

that might interrupt the ability of the senators or of the judge or i might say of our guests who are sitting here patiently listening to everything that's being said. i thank the capitol police for responding as quickly and as rapidly and professionally as they always do. i apologize to senator durbin for the interruption. i yield back to him. >> thank you, mr. chairman. more than that we need our supreme court justices to have an understanding of the real world, the impact their decisions have on everyday people. we need justices whose wisdom comes from life, not just from law books. sadly this important quality seems to be in short supply. the current supreme court has issued many decisions that i think represent a triumph of ideology over common sense. when chief justice roberts came before this committee in 2005 he famously said a supreme court justice is like an umpire calling balls and strikes. we have observed, of, that it's

a little hard to see home plate from right field. if being a supreme court justice were as easy as calling ballots and strikes, we wouldn't see many 5-4 decisions in the court. in the last year alone 23 -- several decisions were decided by a 5-4 coast and ledbetter is a classic example of the supreme court putting activism over common sense. the question in that case was fundamental, should women be paid the same men for the same work? lilly ledbetter was a plant manager at a tire plant in alabama, worked there for 19 years and the didn't learn until she was about to retire that her male colleagues in the same job were paid more. she brought a discrimination lawsuit. the jury awarded her a verdict. the supreme court in a 5-4 decision threw out the verdict saying lilly ledbetter filed her discrimination complaint too late.

they said her complaint should have been filed 180 days before the discriminatory paycheck. that decision defied common sense in the reality of a workplace where few employees know what their fellow employees are being paid. >> dick durbin, the senator from illinois, making the point that sonia sotomayor semnently qualified to be a justice, associate justice of the u.s. supreme court. we'll continue to monitor what she's saying. cnn.com has living streaming of this hearing uninterrupted. we'll take a quick break and continue our coverage right after this.

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all right. so senator patrick leahy, the cheryl of the senate judiciary

committee, has gavelled this confirmation hearing to recess right now. a lunch break until 2:00 p.m. eastern, an hour and 20 minutes or so from now. we'll continue to cover it obviously at that time. there's sonia sotomayor, the supreme court nominee. she's walking out, hobbling just a little bit. she's got a fractured ankle. as you know, she's being received by the top democrats there. you see senator schumer on the right and senator leahy on the left. she will have lunch and relax and come back. we'll hear from four more democrats. there 12 democrats on the senate judiciary committee, seven republicans. all seven have made their opening statements including senator grassley who has just emerged to shake her hand as well. four democrats will be making their opening statements, amy klobuchar of minnesota, edward kaufman of delaware, arlen specter of pennsylvania, the former republican chairman of

this committee, now a democrat and the newest senator al franken of minnesota. they will make share statements, and then two other senators, chuck schumer and kirsten gillebrand of new york will introduce sonia sotomayor, and then she will have other opening statement. we don't know how long that is. i'm guessing it will be at least 15 or 20 minutes, approximately that. then the session will be gavelled for the day. tomorrow the q&a begins. each senator, all 19 senators, will have 30 minutes of uninterrupted questioning time available to grill sonia sotomayor. jessica yellin, our national political correspondent is in the senate hart office building where this judiciary committee meeting has been going on. you know, whenever some of those republicans say something that the white house doesn't like, jessica, that white house action is pretty quick in terms of a response. >> reporter: that's right. they have hit back fast today, wolf, in particular when she was

attacked, sonia sotomayor was attacked by her comments about a wise latina woman and senator sessions suggested that the president himself and justice ginsberg disagreed with her remarks, criticized sotomayor for those remarks, the white house corrected that rapidly saying that they say that her comments were not fully and well articulated but they understand her sentiment was well intended. what i should -- the larger point here, wolf, is that the senators on the republican side are clearly laying out markers for what we're going to see for the rest of the week. this emphasis on the question of empathy serves two purposes for them. one it obviously says something about what they believe is trouble in their judicial philosophy but it also goes to remarks she made in speeches, not to her case work as a judge, and why that's relevant is because in past hearings these nominees have avoided answering questions about any decisions they have rendered saying in the future i might have to make a decision like this, and i can't

comment on it. i don't want to reveal, tip my hand, but sonia sotomayor does not have that kind of cover when it comes to the public speeches she's given, for example, her comments on a wise latina woman, so they are trying to probe, the critics are trying to probe into areas where she will be forced to answer. a second thing they are trying to do is see if they can in some way get a rise out of her, show that she can have an edge and show her to be an aggressive person, somehow less likeable to the american people. that's why you heard senator graham saying unless you have a, quote, complete meltdown i think you'll get voted in but the white house, i will tell you, wolf, the white house is saying what we will expect from her statement today she will focus on her history as a judge who focuses on practical matter, not legal abstractions and especially her work as a big-city prosecutor and judge who has dealt with real world issues. again, they are getting away from this idea of empathy. they will say that's an abstract

legal concept to the fact that she is someone who came from a tough background who knows how to deal with people as they live in their real lives. a stark contrast to what the republicans would like. >> stand by. we're going to get back to you. jeff toobin, let's assess what we've heard now for the past few hours. any major surprises, or was this all rather predictable? >> well, i think we saw in microcosm the republican party's search for itself because we saw some attempts at conciliation. we saw lindsey graham saying, you know, presidents win elections. they deserve a certain deference. we want to accommodate him, perhaps though he didn't make a commitment on how he would vote, and then we heard jeff sessions sort of laying out the complete case against judge sotomayor, and i think somewhere between that is an attempt for the republicans to figure out where they stand in the new policecality universe. >> that's because you heard lindsey graham of south carolina, the republicans say

barring some sort of meltdown she's going to be confirmed. >> lindsey graham was actually quite statesman-like because he did make the point that elections have consequences. this is not a judge that perhaps he would have chosen. certainly senator john mccain would not have chosen judge sonia sotomayor but i also think we saw the issues they will raise, clearly the wise latina woman issue and the issue of affirmative action as you pointed out earlier looms over this court and the consideration of foreign law. should you consider foreign law? >> republicans used the word foreign law, they mean international law. >> international, sort of code words for conservatives because that's a no-no as alex can tell you. something we didn't hear about yet which i guarantee we'll hear about in the hearing is the second amendment and the issue of guns because of some of her decisions that conservatives don't like, and they are clearly taking on the president of the united states here saying if we were to use the barack obama

standard, barack obama who was a senator voted against republican judges, we would not vote to confirm her because he used standards that we believe shouldn't be used. >> candy, did anything jump out at you during the course of these first few hours? >> i think we have the structure now. we know what the republicans are going to say and where they are, you know, on one side or the other of their line. we know the democrats are going to say, listen, this is about case law. if you want to talk about how she's going to be as a judge, let's look at case law. so i think we just know what -- everything for the next several days, you know, regardless of whatever case it is, is going to be viewed in that perspective. >> and i'm going to have maria echaveste and alex castellanos weigh in a moment but i want to take a quick break. as the senate judiciary committee is in recess right now, having lunch and relaxing a little bit, getting ready for the final four democrats to deliver their opening statements and then the culmination of this first historic day, the confirmation process, will

culminate with the opening statement from sonia sotomayor herself, and we're going to try to get a little preview of what she's likely to say during her opening statement. we'll take a quick break and continue our coverage right after this. this is humiliating. stand still so we can get an accurate reading. okay...um...eighteen pounds and a smidge. a smidge?

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you're looking at the senate judiciary committee hearing room in the senate hart office building up on capitol hill. virtually empty right now. all the senators, staff members, the top witness, sonia sotomayor herself, her family members, everyone else, they are basically taken a lunch break. they are expected to resume the confirmation hearings at 2:00 p.m. eastern, a little bit more than an hour from now. four democrats will have their opening statements, all seven republicans have already made their opening statements, and

then the supreme court nominee will be introduced by the two u.s. senators from the state of new york, chuck schumer and kirsten gillebrand who will then make her opening staple. jeff sessions who is the top republican on the committee, he delivered a very, very pointed statement setting the stage for criticism of various positions that sonia sotomayor has taken over the years, and he also said this about prejudice. >> judge sotomayor's empathy for one group of fire fighters turned out to be prejudiced against another. that is, of course, the logical flaw in the empathy standard. empathy for one party is always prejudiced against another. >> all right. let's talk about that with maria echaveste and alex castellanos. maria used to work in the clinton white house and what's wrong the assessment jeff sessions made on the ricci case

in new haven where the white fire fighters who all did relatively well speaking in that test, that test was thrown out bus minorities, african-americans and hispanics didn't do well? >> i think that trying to put the court's decision, relying on empathy, what senator sessions said about empathy is prejudice towards one group is making a sound bite out of a very complicated issue. i think if you look at record of that particular case, there's good reason to question what new haven was doing, and i think that senator sessions is just focused on trying to paint her as a liberal activist, pro-minority judge and therefore not fit for the supreme court and i think that ultimately you'll see that that's just an unfair characterization. >> the position that she took was overturned by the supreme court, the ricci case, alex, in

a 5 -- 4 decision. >> judge sotomayor has described herself as a liberal. this is no one else's characterizati characterization. this is her own. in this particular case the two fire chiefs in new haven, one black and one white, said, no, she is test results should stand. the court overruled them. the test was -- they worked on it long and hard to get a race neutral test, and, again, judge sotomayor dismissed it really in a summary order a couple of paragraphs without explaining her reasoning at all so here you have a real issue. i think one thing america would love to see is the test. why isn't that test part of the public record? why can't we all see it on cnn.com and see if it was fair or not. >> hold those thoughts for now. i want to walk over to our senior legal analyst jeff toobin. you've studied this richie case and studied the supreme court decision, 5-4 decision reversing the position that sonia sotomayor took in the appeals court. go ahead and explain. we've put into the magic wall some of the big cases that sonia sotomayor has decided as an

appeals court judge, and, of course, the one that keeps coming up is "ricciv. destefano." and that's the case of the milford fire fighters. just to remind you what the case is about. the topic of the decision was a promotional exam was held by the new haven fire department, and most -- only white fire fighters and one hispanic fire fighter did well enough for a promotion. new haven was worried about a lawsuit from the african-american fire fighters who didn't do as well, and so they cancelled the case -- they cancelled the test all together. well, the white fire fighters, including range ricci who is the lead lawyer -- the lead plaintiff in the case, she -- he sued, and he lost in the district court, and sonia sotomayor was part of a three-judge panel that affirmed the district court decision ruling for the city against the

fire fighter, and that case went to the supreme court just last month, and i think as many people know, the supreme court ruled 5-4 that ricci was discriminated against, that ricci was right and the city of new haven was wrong, and it's worth that remembering that the position supported by judge sotomayor was supported by david souter, so -- >> who is retiring and who she will seat. souter and sotomayor saw the case the same way but the majority of the supreme court ruled the other way. >> including justice kennedy who went with the five as opposed to the four. >> indeed, he wrote the opinion. >> hold that thought. i want to walk over and bring candy crowley in because he's going to be testifying later in the week, mr. ricci himself. he's being asked by the minority, by the republicans to come in and make the case why she was wrong in this decision in which she and two other appeals court justices were

reversed by the u.s. supreme court. >> what's interesting to me is, and i'm sure you get them, too, of all of the things that we have looked at in case law that we've discussed and her rules, i've got more e-mail on the ricci case than any other single thing about sotomayor and a connection between her decision on that case, actually the decision of the three-judge panel, but she's on it obviously, and her remarks about a latina woman being able to make a better decision than a wise white man, so there was a connection to those two that really sparked my e-mail, i have to tell you, that -- that made people upset. >> it will be interesting, gloria, to see if in her opening statement which we expect shortly after 2:00 p.m., maybe around 2:30 p.m. eastern, because four more democrats will be making statements and then she will be introduced by the two new york senators, whether she specifically addresses, tries to deal with these most

explosive criticisms of her. you can see mr. ricci in that picture over there that we just put up on the screen and whether she would try to defuse it in her opening statement or whether she waits until the q&a. >> she may try to explain things like the wise latina remarks, but i would presume in terms of case law she is ready with the answers to questions about it. i mean, the question that i have that i would like to hear from her is that during the oral argument in that case she was apparently quite vocal, asked an all of lot of questions but then the three-judge panel ruled a very brief order, so we don't know much. >> all right. guys. hold your thoughts. we'll continue our coverage. they are in a break right now, the senate judiciary committee, a lunch break. they will resume the hearing at 2:00 p.m. eastern. we'll be here throughout the afternoon. we're anxious to hear what sonia sotomayor has to say. we're also going to stay on top of other news. kyra phillips will be joining us in just a minute. our coverage will continue.