hearings are continuing for sonia sotomayor. right now, we'll get right back to them, but i want to check important news that is unfolding. cnn's tony harris is standing by with a news update. the world isn't stopping, tony, just because these historic hearings are under way. >> you said it, wolf. good to see you. let's get to uth stories making news. house democrats plan to release a plan to overhaul the nation's health care system. speaker nancy pelosi expects a vote by the august recess and more changes in the bill are due to likely differences. the plan could cost about $1 trillion over ten years with much of the money spent on people who cannot afford care. new signals on the economy, retail sales are up, so are wholesale prices. the commerce department says last month sales rose 0.6% better than economists expected and a surge in gasoline prices credited for the gains and the

government says prices at the whole sale level before goods reached store shelves in june. wholesale prices rose just 0.2% in may. a fourth suspect is in custody. authorities say gary lamont sumner was arrested after a traffic stop. released surveillance video from outside the home where byrd and melanie billings were found. >> the couple had 16 children, 9 adopt. frightening moments for passengers on a southwest airlines jet. a football-size hole in the passenger cabin forced the plane to make an emergency landing in charleston, west virginia, yesterday.

flight 2294 was head ed from nashville to baltimore. >> we were seated about two rows back from the wing and about four rows back we heard this loud rush and your ears popped and then we looked back and you could tell that part of the inside was trying to pull out and it was really, it was crazy. >> 126 passengers and 5 crew members were onboard and no one was injured. southwest inspected nearly 200 of its planes overnight as a precaution. and those are some of the other stories making news right now. let's get you back to wolf in washington. >> tony, thanks very much. pretty scary moment for the passengers on the southwest flight. the confirmation hearings are continuing and only a few moments ago an important statement from sonia sotomayor in response to a question from

herb coal from wisconsin. >> planned parenthood reaffirmed the court holding of rowe. that is the precedent of the court and settled in terms of the holding of the court. >> settled law, basically. rowe versus wade, the 1973 landmark decision giving women the right to have an abortion. she says now the settled law of the united states. jeff toobin, significant statement, although certainly not surprising. >> not surprising. that is the formulation that john roberts used, samuel alito also said, but between the lines with roberts and alito, you could see that that was a decision they were uncomfortable with. i didn't sense any similar discomfort with judge sotomayor here and she was nominated by a president who was pro-choice and the proabortion rights and president bush, who was

anti-abortion rights appointed alito and roberts and that will be reflected in their tenure on the court. >> candy, in terms of all of her decisions, not a whole lot, if any, that addressed the issue of abortion rights. >> one on mexico city policy, but that's the only one that mentioned the word abortion that i could find. so, frankly, when you do look at a record, all these hot button issues, we really know very little and it would have been surprising had she not said that rowe v. wade was law. >> when she was part of the legal defense fund she reported strongly and she took a great interest in and they did want taxpayer funding of abortion and they did want to get rid of parental notification and they did try to get no 24-hour notice and things like that. >> they wanted poor women in this country to be able to have the same rights that women of means have in order to exercise their constitutional right to have an abortion. >> one of intrusting questions here, wolf, whether this comes

up later. senator cole asked a very basic question. a lot of abortion rights groups pressuring the democrats because she does not have, as candy noted, an established record to mine into that issue and get her to say she supports rowe v. wade. the white house has urged them to back off because if the democrats open the door on abortion, then they open the door for the republicans to ask on abortion and every other issue. the white house has pressured democrats to back off, ask a very basic question like that and leave it there. be interesting to see if it stays there. >> in the city case that candy was referring to, she side would the bush white house on this saying they could deny funding. so, for clinics that would perform abortion. so, that's why liberals are so upset. >> beyond saying that this rowe versus wade decision of 1973 is settled law, i suspect we're not going to get a lot more specifics from sonia sotomayor exactly on how she feels about abortion rights. we will continue our coverage,

including orrin hatch, one of the top republicans on the judiciary committee. he is getting ready for 30 minutes of uninterrupted minutes of uninterrupted questioning. ouse.

they've just gone into short break, 10, perhaps 15 minutes. the senate judiciary committee. senator patrick leahy giving everyone a chance to get away from their chairs. sonia sotomayor, looking at these live pictures a little opportunity to take a break, as well. the next senator who will be questioning her will be orrin hatch, the republican senator from utah, and he'll be followed by democratic senator dianne feinstein of california. each senator has 30 minutes of

an opportunity to ask specific questions. that's what they're doing. this is going to go on throughout the day today, probably spill over into tomorrow, as well. we'll have extensive coverage here throughout the day on cnn. some of the most sensitive issues have already been raise would sonia sotomayor and she had an opportunity now for the first time publicly to explain where she stands. cnn's senior congressional correspondent dana bash, give oslittle flavor of what's going on in that room, dana. >> what's going on, you are seeing definitely the kind of script, the things we all knew we were going to see ahead of this question and answer session. for the most part democrats are trying to get out the concept and the idea that sonia sotomayor has a pretty good record and a pretty good experience exemplary experience when it comes to her ability to be a supreme court justice and

republicans, at least the first republican and the only republican we've heard so far relentless, relentless, that is senator jeff sessions in trying to get to the idea that he believes that no matter what she says now, she has suggested in the past that she necessarily will use her experience and will use it on the bench. and i think he said about a dozen times in a different form that concept -- they think that they could put a question mark in some of the minds, potentially of some conservative democrats. we'll hear from him and one other democrat to listen for is senator dianne feinstein.

wolf, i spoke to her a few weeks ago in the hallway and she talked about the fact that she gets a bit frustrated that all nominees are put through these boards. she feels that some of their answers are too scripted. she said to me that she wants to try to crack the code a little bit. this is a fellow democrat, so interesting to see how she tries to do that in her questioning coming up. >> the gun issue is, obviously, very sensitive because sonia sotomayor suggested that the second amendment of the constitution applies toal for law and not the state or local law and that is a very sensitive issue for a lot of people out there. no doubt senator hatch will grill her on that. senator sessions, the ranking republican on the judiciary committee had this exchange with judge sotomayor on the issue of prejudice and decisions. >> you think there is any circumstance in which a judge should allow their prejudices to impact their decisionmaking?

>> never their prejudices. i was talking about the very important goal for the justice system is to make sure the prejudices of a judge do not influence the outcome of a case. what i was talking about was the obligation of judges to examine what they're feeling as they're adj adjudicating a case and to ensure that that's not influencing the outcome. life experiences have to influence you. we're not robots who listen to evidence and don't have feelings. we have to recognize those feelings. and put them aside. >> all right. let's talk about this, jeff toobin, it's a sensitive issue. the whole issue of empathy or bias or prejudice, whatever you want to call it. it's clearly at the forefront of these confirmation hearings. >> there is some contradiction here that everybody is involved

with. on the one hand, everybody says you should just apply the law. that the law trumps everything. but everyone also says it's important to have people of diverse backgrounds on the court. well, if you're just applying the law, what difference does it make if you have people of diverse backgrounds. that's the tension in the question and answers. i don't think it will be resolved. i think everybody gets the gist of what she is trying to say but she is walking back several of her statements that she made in some of these speeches. >> in this speech, at berkeley she said gender and national origins will and may make a difference in our judging. and today she said, no, no, no, you have to set aside all of that and make sure it doesn't make a difference in your judging. >> she also said in that same speech that brown versus bore was decided by nine white men. meaning there is not a lock on

wisdom. >> she's clearly looking at, clearly knows she needs to walk this back and it's a problem because she's also talking about sandra day o'connor's remark that a wise man and a wise woman would come to the same thing, she then in the same speech said, but i, i don't necessarily agree. but today she said, look, this was a rhetorical method, i was trying to inspire young students. i was trying to play on her words, it was bad. because it left the impression that life experience affects judgment. so, she knows this is, those words out there aren't hurting. >> if you assume all nine members of the united states supreme court are wise, why is it there are 5-4 decisions all of the time? it's a question and i want to play another clip that highlights another important area from earlier in these confirmation hearings today. >> i do not believe that any ethnic, racial or gender group

has an advantage in sound judging. i do believe that every person has an equal opportunity to be a good and wise judge regardless of their background or life experiences. >> alex, you don't have a problem with what she just said there. >> oh, no. i think she said just the opposite, though. maybe when she said she was a wise woman and a latino, she meant there were two judge sotomayor's out there. wolf, i think one thing we should look at is the political impact of today. the hearing she is going to be confirmed, it looks like. she is certainly handling herself very well here. but democrats are going to end up voting for a judge that republicans are going to be able to say, look, she doesn't respect her individual right to own a gun. she's pro-choice, she's, you

know, out there on a lot of issues. she voted to deny firemen who passed a test, their right to a job because of their race. those are going to be issues in 2010 election. and so democrats may not feel the political heat of those today, but they will soon. >> it's unfortunate that this becomes yet another battle of the culture wars, because that's not the majority of americans are pro-choice. rowe is well settled. the issue on the gun is whether state, whether the second amendment applies to the state. seems to be unsettled. that doesn't mean that she's anti-gun. they may try to get her views on it, but if she's wise, she will, in fact, say that issue comes before me in the supreme court and i have to decide. >> hold on, they're getting ready to wrap up this break and go back to the hearings that were announced. the republican senator from utah and he's getting ready to ask some questions. our coverage will continue right after this.

welcome back to our coverage of the sonia sotomayor confirmation hearings before the senate judiciary committee. a brief little recess, everyone taking a little break and as we get ready for orrin hatch, the republican senator from utah, to start asking his questions, jeff toobin, you brought up a good point while we were just talking. some of these breaks are important because this is a woman, sonia sotomayor, as a little girl she was diagnosed with juvenile diabetes and she's had to deal with this issue of diabetes for a long, long time. >> she has to test herself regularly, she has to adjust her insulin and she has to eat and she's dealing with a broken

ankle, which she has to keep elevated, which gets painful at the end of the day. so, this is not the easiest physical task for her, and that's why i think the day will not be as long as it might otherwise have been. they might end it a little earlier than we think. >> and resume the questioning tomorrow, which would probably be smart for all concerned. but we'll see what they decide to do. you're right. this is an important issue, although we have to point out that all the medical doctors and all the doctors, when she was first nominated by the president, pointed out she is in very good physical shape, despite the fact that she has diabetes. she learned to manage that and deal with it throughout her life. indeed, she is an inspiration to a lot of young people out there who have juvenile diabetes. you know what, you have juvenile diabetes but you still can reach for the stars and become a united states supreme court justice and just work really hard and do well at princeton and yale law school and other places like that. there you see patrick leahy, the

chairman of the senate judiciary committee. al franken, the newest member is there from minnesota, as well. i want to play a little clip of how she is seen, candy crowley referred to this, walk back from that comment she made about a wise latina woman. >> i also, as i explained, was using a rhetorical flourish that fell flat. i knew that justice o'connor couldn't have meant that if judges reached different conclusions, legal conclusions that one of them wasn't wise. that couldn't have been her meaning, because reasonable judges disagree. >> all right, john king. you know, it's a really sensitive issue and she's dealing with it. >> she's trying to deal with it and step back saying i was in an academic environment and try to inspire young people and i took a little liberty and tried rhetorical arguments and maybe i could have said it better but

no, no, no i didn't mean because i'm a woman or latina i could have made a better decision than someone else. the conservative blogs are saying, wait a minute, what you're saying now is not what you said then. if you are the white house, you're extremely happy right now. "a," senator leahy first preemptively raised these issues to give a chance. senator sessions tried to get her to say of course being a woman, of course being a hispanic helps me in rulings and she said, no. i am aware of it and i try to put my biases aside and they are extremely happy at the white house after round one and the next round with senator hatch is critical because he's a former chairman of the committee and not as partisan as some of the other conservative republicans on the committee and senator hatch, the white house believes, could vote for her in committee. they believe they will get three votes in committee.

if senator hatch talks to his colleagues and says, i wouldn't pick her, but she's qualified, they believe she can get a number of votes in the end. >> senator sessions asked the question, is there any instance in which you would let your prejudice impact your decisions and what she said in the statement is that her experience as a woman and a person of color will affect how you judge. so, you may have used the wrong word there in asking the question to get the direct answer because that allowed her to not directly contradict herself, although she clearly did walk back what she said. >> she wanted to use the word, actually. prejudice. i'm sorry, sessions wanted to use the word prejudice. >> but it allowed her, it allowed her to back out of it very easily. >> the line of questioning was that being a white man, that's normal. everybody else has biases and prejudices, but the white man,

they don't have any ethnicity and they don't have any gender. they're just like the normal folks and i thought that was a little jarring to me. >> i want to point out to the viewers, the pictures, the informal pictures, al franken, the newest member of the judiciary committee and only been a united states senator for less than a week and chatting with lindsay graham among others as we await sonia sotomayor and now walking back in the room and john cornen the senator from texas there. she'll go and sit down. she's still hobbling a little bit from that fractured ankle. only a week after she was nominated by the president to become a united states supreme court justice she had that incident and she still has a cast on. she has to keep that foot elevated. they have a special a little device there underneath the table. you can't see it with the drapery around the table, but she keeps it elevated. they say the pain is still there and becomes more aggravated as the day goes on.

earlier in the morning, not so bad as the afternoon goes on, seems to get a little bit worse. that could, obviously, have an impact on how long this hearing will go today. she's sitting down right now and i think the hearing is about to resume. >> and i fully, i fully understand that they have to work out their own schedules. but what i would suggest just senator cole ask questions, we'll go to next senator hatch a former chairman of this committee. following senator hatch we'll go to senator feinstein and that will bring us to roughly 12:30. because of the caucuses, we'll break at 12:30, but then resume right at 2:00, which would mean i talk to republicans and

democrats. means everybody will have to come back a few minutes early. but i think everybody will understand that. so, senator hatch is a former chairman of this committee and a friend of many years and i recognize senator hatch. >> thank you, mr. chairman. welcome, again, and to your lovely family. we're grateful to have you all here. now, let me ask you a question. if the holding in the supreme court means that it is settled, do you believe that gonzalez versus carhart upholding the partial birth abortion ban is law? >> all precedents of the supreme court i consider settled law subject to the difference that stare decisis would council.

>> look at an area that is very important to many of us and that is the second amendment. the right to keep and bear arms and your conclusion that the right is not fundamental. now, in the 2004 case entitled united states versus sanchez, you handled the second amendment issue in a short footnote. you cited the second circuit's decision for the proposition of the right to possess a gun is not a fundamental right. toner, in turn, relied on the supreme court decision in the united states d. miller. last year, in the district of columbia versus heller, the supreme court examined miller and concluded "the case did not purport to be a examination of the second amendment and that miller provided no explanation of the content of the right." are you familiar with that? >> i am, sir. >> okay.

so, let me ask you. doesant the supreme court's treatment of miller, at least cast doubts, on whether relying on miller as the second circuit has done for this proposition as proper? >> the issue -- >> i'm saying at least cast doubts. >> well, that is what i believe justice scalia implied in his footnotes 23, but he acknowledged that the issue of whether the right as understood in supreme court jurisprudence was fundamental. not that i considered unfundamental, but that the supreme court didn't consider it fundamental so as to be incorporated against the states. >> well, it didn't decide that point. >> well, it not only didn't decide it, but i understand justice scalia to be recognizing that the court's precedence has held it was not. his opinion, with respect to the

application of the second amendment to government regulation was a different inquiry and a different inquiry as to the meaning of miller with respect to that issue. >> if heller had already been decided, would you have addressed that issue differently than heller or would you take the position that the corporation with regard to state issues? >> that's the very question that the supreme court is more than likely to be considering. there are three cases addressing this issue, at least, i should say three cases addressing this issue in the circuit courts and, so, it's not a question that i can address. as i said, i bring an open mind to every case. >> i accept that. sanchez, you identify the premise that a right to possess

a gun is not fundamental and the conclusion that new york's ban on gun possession was permissible under the second amendment. but not aware of connecting the prems to the conclusion without any analysis at all, that footnote that you wrote leaves the impression that unless a right to bear arms is considered fundamental, any gun restriction is necessarily permissible under the second amendment. is that what you believe? >> no, sir, i'm not taking an opinion on that issue because it's an oep on question. sanchez was -- >> so you admit it is an open question? >> i admit, ied a m ed admit, t have been addressing that question. the supreme court in the opinion authored by justice scalia questioned that it is a question that the court should consider. i'm just attempting to explain that u.s. versus sanchez was

using fundamental in its legal sense that whether or not it had been incorporated against the states. with respect to that question, moreover, even if it's not incorporated against the states, the question would be, would the states have a rationale basis or a regulation it has in place and i believe the question is whether or not a prohibition against felons possessing firearms is at question, if my memory serves me correctly. but even justice scalia in the majority opinion in heller recognized that that was a rationale basis regulation for a state under all circumstances. whether or not there was a second amendment right. >> well, the district of

columbia versus heller, the supreme court observed that it has always been widely understood that the second amendment like the third and fourth amendment had a presisting right. the court also observed this, "by the time of the founding, the right to bear arms had been incremental for subjects." the court also described the right to bear arms as a natural right. do you recall that from that decision? >> i do remember that discussion. >> all right. in what way does the court's observation that the second amendment codify the fundamental right to bear arms affect your conclusion that the second amendment does not affect the fundamental right? >> my conclusion in the maloney case was based on precedence and the holding of precedence that the second circuit did not apply to the state. >> excuse me, i'm sorry y didn't mean to interrupt you.

>> what is your understanding whether rights should be considered fundamental? i'm not asking a hypothetical here. i'm only asking about what the supreme court has said in the past on this question. i recall the court emphasizing that a right must be deeply rooted in our nation's history and tradition that it is necessary or that it is an enduring american tradition. i think i've cited that pretty accurately on what the court has held in regard to what is a fundamental right. those are different formulations from the supreme court's decisions, but i think the common thread there is obvious. now, is that your understanding of how the supreme court is evaluated and whether a right should be deemed fundamental? >> the supreme court's decision with respect to the second circuit and corporation, second amendment in corporation doctrine is reliant on old

precedent of the court and i don't mean to use that as precedent that doesn't bind when i call it old. i'm talking about precedent that was passed in the 19th century. since that time, there is no question that different cases addressing different amendments of the constitution have applied a different framework. and whether that framework in the language you quoted are precise or not, i haven't examined that framework in a while to know what that language is precise or not. i'm not suggesting it's not, senator, i just can't affirm that that description. my point is, however, that once there's supreme court precedence directly on point and second circuit precedent directly on point on a question, which there is on this incorporation doctrine and how it uses the word fundamental, then my panel,

which was unanimous on this point, two other judges, and at least one other or one other panel on the seventh circuit by justice, by judge easterbrook has agreed that once you have settled precedents in an area, then the supreme court has to look at that and under the deference one gives to stare decisis and the factor is one that considers in deciding whether that older precedents should be changed or not, that is what the supreme court should do. >> as i noted, the supreme court put the second amendment in the same category as the first and fourth amendments. presisting rights that the constitution merely codified. now, do you believe that the first amendment right, such as the right to free exercise of

reledgen or freedom of the press are fundamental rights? >> those rights have been incorporated against the states. the states must comply with them. so, to the extent that the court has held that, then they have been deemed fundamental as that term is understood legally. >> what about the fourth amendment about unreasonable searches and seizures? >> as well. but with respect to the holding as it relates to that requirement. >> let me turn to your decision in maloney versus cuomo. this is the first post-heller decision about the second amendment to reach any federal court. or federal appeals court, i think i should be more specific. in this case, you held that the second amendment applies only to the federal government, not to the states. this was after heller. am i right that your authority for that proposition was a supreme court 1886 decision in presser versus illinois?

>> that plus some second circuit precedent that had held that the amendment had not -- >> the presser was one of the issues you relied on? again, in that case, or i should say that case involved the 14th amendment privileges and immunities clause, is that correct? you're aware of that? >> i haven't read it recently enough to remember exactly. >> you can take my word on it. >> okay, i'll accept. >> last year's decision in heller involved the district of columbia, so it did not decide the issue whether the second amendment applies to the state or incorporates, but the court did say that its 19th century cases about applying the bill of rights to the state "did not engage the sort of 14th amendment inquiry required by

our later cases." now, here's my question. am i right that those later cases to which the court referred involved the 14th amendment's due process clause rather than its privileges and immunity's clause? >> as i said, i haven't examined those cases recently enough to be able to answer your questions, senator. i can say what those cases did address or didn't address, the second circuit had very directly addressed the question of whether the second, whether it viewed the second amendment as applying against the state. to that extent, if that pr precedent got the supreme court's teachings wrong, it would still bind my court to the extent that justice -- >> i'm talking about something beyond that. i'm talking about what should be done here. isn't the presser case here

relied on maloney to say that the second amendment does not apply to the case where they used the privileges and immunity clause and not the due process clause to incorporate? see, the later cases have all used 14th amendment, as far as i can recall. >> as i said, senator, i haven't looked at those cases to analyze it. in maloney, we were addressing a very, very narrow question and in the end, the issue of whether that precedent should be followed or not to question the supreme court's going to address if it accepts one of the three cases in which courts have looked at this question. the court of appeals has. >> the reason i'm going over this is because i believe you applied the wrong line of cases in maloney. because you're applying cases that use the privileges and immunities clause and not cases

that use the 14th amendment due process clause. let me just clarify your decision in maloney. as i read it, you held the second amendment does not apply to state or local governments. you also held that since the right to bear arms is not fundamental, all that is required to justify a weapons restriction is some recently conceivable state effects that could provide a rational basis for it. am i right this is a very permissive standard that could emit the basis standard? >> all standards of the court are attempting to ensure that government action has a basis. in some situations the court looks at the action and applies a stricter scrutiny to the government's action. in others, if it's not a fundamental right in the way the law defines that, that it hasn't been incorporated against the states, then the standard or

review is of rational basis. >> and my point is, it's a permissive standard, is that correct? >> well, the government can remedy a social problem that it is identifying or a difficulty of identifying and conduct and not in the most narrowly tailored way, but one that reasonably seeks to achieve that result. in the end, it can't be arbitrary and capricious. that's a word that is not in the definition. >> more instantly met. okay? >> as i said, the rational basis does look more broadly than strict scrutiny -- >> that's my point. as a result of this very permissive legal standard and it is permissive, doesn't your decision in maloney mean that any state or local weapons band

would be permissible? >> sir, in maloney we were talking about num chuck sticks. those are marshal arts sticks. >> two sticks bound together by raw hide. >> exactly. when the sticks are swung, which is what you do with them. if there is anybody near you, you're going to be seriously injured because that swinging mechanism can break arms, it can bust someone's skull. >> sure. >> it can cause not only serious, but fatal damage. so, to the extent that a state government would choose to address this issue of the danger of that instrument by prohibiting its possession in the way new york did, the question before our court, because the second amendment has not been incorporated against

the state, was did the state have a rational basis for prohibiting the possession of this kind of incident? so it's a very narrow question. every kind of regulation would come to a court with a particular statute, with legislative findings as to why a remedy is needed. and that statute would then be subject to rational basis review. >> the point that i'm really making is that the decision was based upon a 19th century case that relied on the privileges and immunities cause which is not the clause that we used to invoke the doctrine of incorporation today. that is just an important consideration for you, as you see these cases in the future. let me just change the subject, in the ricci case, i'm concerned

about that for a variety of reasons. grant summary judgment to the firefighters and what is a summary judgment, meaning it didn't have to be distributed to the other judges on the court. the only reason the judge raised the issue is that he read it in the newspaper. and then said, i want to see that case. then he got it and realized, my gosh, this is a case of first impression. so, the court split 5-4 -- no, it was 5-4 and whether to grant summary judgement to the firefighters. now, even they said they deserve their day in court to find more facts. but all nine justices disagreed with your handling of that particular case. now, thus your decision, even

though it was a 5-4 decision, all nine disagreed with your handling. now, okay. but, as you know, your decision in ricci versus destefano is very controversial. people all over the country are very tired that the courts imposing their will against one group or another without justification. now, the primary response or defense so far seems to be that you had no choice because you were bound by clear and long-standing precedent. most say you were bound by second pres dntd and some say it was supreme court precedent. so, i need to ask you about this. to be clear, this case involved not only discrimination, but both disparate treatment and disparate impact. that's what made it a case of first impression.

the city said they had to engage in disparate treatment or they would have been sued for disparate impact. so, was how these two concepts of discrimination disparate impact and treatment react in the same case? whether you were bound by clear, long-standing precedent, as i recall your opinion in this case, whether it was the summary order or the opinion did not cite any supreme court or any circuit court precedent at all, is that right? >> i believe they cited the bushi case. >> the only case citation in your opinion was to the district court opinion because you were simply adopting what the district court had said rather than doing your own analysis of the issues and i think that is right. but you can correct me if i'm wrong, but i'd be happy to be corrected. but didn't the district court say this was actually a very unusual case, this is how the

district court put it. "this case presents the opposite scenario of the unusual challenge to an employment not the use of allegedly, racially discrimatory exam results but the refusal to use those results." now, this seems complicated, i know, but you know more about it than probably anybody here in this room. the district court cited three second circuit precedents but didn't, didn't two of them. the kirkland and the bushi cases, didn't they deal with test scores, which did not occur in this case? >> they dealt with when employees could prove a impact of a case -- >> the case upon norman. >> but the principals underlying

when employees could bring a case are the same when they establish a primaphasiacase, which is can an employee be sued, employer be sued, by employees who can prove a disparate impact. and the basic principles of those cases were the same, regardless of what form the practice at issue took. >> okay. well, the third case, the hayden case, didn't it present a challenge to the design of the employment tests rather than the results of the test? >> i'm sorry, say this again. >> hayden case. didn't it actually present a challenge to the design of the case rather than the results of the -- design of the employment test rather than the results of the case? >> again, regardless of what the challenge is about what test is at issue, the core holding of that precedent was that if an employee could show a disparate

impact from a particular practice or test or activity by an employer, then that employee had a prima facie case of -- of liability under title seven. so, it -- the question is, was the city subject to potential liability because the employees, the city of new haven, because the employees could bring a suit under established law challenging that the city of new haven had violated title seven. >> that's one -- >> so, that was the question. >> that's one of the reasons why it's a very important case. when the circuit -- second circuit considered whether to review the decision on balk, didn't you join an opinion admitting that the case presents, quote, difficult issues, unquote? >> well, the district court noted that it was a different

scenario. but it evaluated its decision -- it evaluated the case in a 78-page decision and gave a full explanation, one which the panel agreed with by adopting the opinion of the district court. those questions, as i indicated, are always whether given the risk the city was facing, the fact that it could face a law school -- a lawsuit and its conclusion that perhaps a better test could be devised that would not have a disparate impact, whether it was liable or discrimination, disparate -- not disparate, different treatment under the law, the supreme court came back and said new standard. as i understood the dissenters in that case, what they were

saying is, to the majority, if you're going to apply a new standard, then give the second circuit a chance to look at the record and apply that standard. it wasn't disagreeing that the circuit wasn't applying the law as it was understood at the time. the circuit -- the dissenters, as i read what they were doing, was saying send it back to the circuit and let them look at this in the first instance. >> as i understand it judge cabranas basically didn't know the decision was done until he read it in the newspaper and then asked to look at it and -- >> i -- >> his opinion, joined by five other judges, supporting review opens with these words -- this appeal raises important questions of first impression in our circuit, and indeed in the nation. regarding the application of the 14th amendment and title seven's prohibition on discriminatory

employment factors, unquote. was he wrong? >> that was his view. he expressed it in his -- in his opinion on his vote. >> right. >> i can't speak for him. i know that the panel -- i know what the panel -- >> i'm just asking you to speak for you. look, when the supreme court reversed you, justice kennedy wrote, quote, this action presents two provisions of title seven to be interpreted and reconciled with few, if any, precedents in the courts of appeals discussing the issue, unquote. he was referring to the lack of precedent anywhere in the country, not just the second circuit. was he wrong? >> he was talking about whether -- i understood him to be talking about not whether the precedent that existed would have determined the outcome as the panel did, but whether the court should be looking at these two provisions in a different

way to establish a choice -- a different choice in considerations by the city. as i indicated, that argument, about what new standard or new approach to the questions that the city should consider before it denies certification of a test, yes, had not been addressed by other courts. but the ability of a city, when presented with a prima facie case, to determine whether or not it would attempt to reach a nondisparate impact, had been recognized by the courts. >> okay. >> all right, they're getting into a really detailed discussion of her decision on that new haven, connecticut, firefighters case, a decision that was, then, overturned by the u.s. supreme court in a 5-4 decision. senator hatch continuing his questioning of sonia sotomayor. our coverage is going to continue right after this.

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senator orrin hatch of utah, he's wrapped up his questioning of the supreme court justice nominee, sonia sotomayor. senator patrick leahy is going through a little bit of an exchange with him right now. clearly a difference on the new haven, connecticut, firefighters' case. the next questioner is going to be senator dianne feinstein of california, senior democrat on the committee. let's listen in to hear how they're wrapping things up. >> -- a "washington post" study that showed that judge sotomayor's votes came out

liberal 59% of the time compared to 52% for other judges, who, like her, were appointed by democratic presidents. and that the democratic appointees were 13% more liberal than republican appointees. i don't know, it's not a huge difference, but the suggestion that -- i will just make that for the record and to whatever else you offered. and i would offer, mr. chairman, a correction of the record regarding the -- the miguel estrada case. i have a statement from him. he was nominated by president bush. and would offer that into the record as an explanation of how his nomination was blocked by consistent filibuster by the democrats when there was a majority to confirm him. >> thank you.

and that will be in the record. i would also not want to make any suggestion that mr. estrada's anything but an exceptionally good lawyer. the argument there was not so much with him but withholding by -- some material by bush administration, something he had no control over. senator feinstein? >> thank you very much, mr. chairman. i'm puzzled why mr. estrada keeps coming up. mr. estrada had no judicial experience. the nominee before us has considerable judicial experience. mr. estrada wouldn't answer questions presented to him. this very straightforward. she has not used catchy phrases. she has answered the questions directly the best she could. and to me, that gets points. i must say that if there's a test for judicial temperament, you pass it with an "a" plus,

plus. i want you to know that. because i wanted to respond, and my adrenaline was moving along. and you have just sat there very quietly and responded to questions that in their very nature are quite provocative. so, i want to congratulate you about that. now, it was just said that all nine justices disagreed with you in the ricci case, but i want to point out that justice ginsburg and three other justices stated in the dissent that the second circuit decision should have been affirmed. is that correct? >> yes. >> thank you very much. also, a senator made a comment about the second circuit not being bound in the ricci case that i wanted to follow-up on, because i think what he said was that correct. you made the point that the unanimous ricci panel was bound by second circuit precedent, as

we said. the senators said that you easily could have overruled that precedent by voting for the case to be heard en banc. first, my understanding is that a majority of the second circuit voted not to rehear the case. is that correct? >> that's correct. >> secondly, it took a significant change in disparate law -- in disparate impact law to change the result of the second circuit reached in this case, and the supreme court itself in ricci recognized that it was creating a new standard. is my understanding correct? >> yes, senator. >> you see, so what's happening here, ladies and gentlemen and members, is that this very reserved and very factual and very considered nominee is -- is being characterized as being an activist, when she is anything

but. and i have a problem with this, because some of it is getting a cross out there. calls began to come in to my office, wow, she's an activist. in my view, because you have agreed with your republican colleagues on constitutional issues some 98% of the time, i don't see how you can possibly be construed to be an activist. and my your comments here, and as i walked in the room earlier, somebody asked you how you see your role, and you said, "to apply the law as it exists with the cases behind it." that's a direct quote. it's a very clear statement. it does not say, oh, i think it's a good idea or it does not say any other cliche. it states a definitive statement. and later you said, "precedent is that which gives stability to

the law." and i think that's a very important statement. and what we're talking about here is following precedent. so, let me ask you in a difficult area of the law a question. the supreme court has decided on more than seven occasions that the law cannot put a woman's health at risk. it said it in rowe in '73, in danforth in '86, in planned parenthood in '83, in thornburgh in '86, in casey in '92, in carhart in 2000, and in iote in 2006. with both justices roberts and alito on the court, however, this rule seems to have changed. because in 2007, in carhart ii the court essentially removed

this basic constitutional right from women. now, here's my question. when there are multiple precedents and a question ari s arises, are all the previous decisions discarded, or should the court re-examine all the cases on point? >> it's somewhat difficult to answer that question. >> i know. >> because before the court in any one case is a particular factual situation. and so how the court's precedent apply to that unique factual situation, because often what comes before the court is something that's different than its prior decision, not always, but often. in the carhart case, the court looked to its precedents, and as

i understood that case, it was deciding a different question, which was whether there were other means, safer means, and equally effective means for a woman to exercise her right than the procedure at issue in that case. that was, i don't believe, a rejection of its prior precedents. its prior precedents are still the precedents of the court, the health and welfare of a woman must be -- must be compelling consideration. >> so, you believe that the health of the woman still exists? >> it is a part -- you mentioned many cases. it has been a part of the court's jurisprudence and a part of its precedent, those precedents must be given deference in any situation that

arises before the court. >> thank you very much. i appreciate that. i'd also like to ask your thoughts on how a precedent should be overruled. in a rare rebuke of his colleagues, justice scalia has sharply criticized chief justice roberts and justice alito for effectively overruling the court's precedents without acknowledging that they were doing so. scalia wrote in the hind case, and i quote, "overruling prior precedent is a serious undertaking, and i understand the impulse to take a minimalist approach. but laying just claim to be honoring starry decisis, requires more than beating a prior precedent to a pulp and then sending it out to the lower courts weakened, denigrated and more incomprehensible than ever and yet somehow technically alive." in wisconsin, right to life,

versus fec, he said that chief justice roberts' opinion, quote, effectively overruled a 2003 decision without saying so, end quote. and said this kind of, quote, faux judicial restraint, end quote, was really judicial obfuscation, end quote. here's the question, when the court decides to overrule a previous decision, is it important that it do so outright and in a way that is clear to everyone? >> the doctrine of stare decisis, which means stand by a decision, stand by a prior decision, has a basic premise, and that basic premise is that there is a value in society to predictable, consistency, fairness, even handedness in the law.

and the society has an important expectation that judges won't change the law based on personal whim or not, but that they will be guided by a humility they should show in the thinking of prior judges who have considered weighty questions and determined, as best as they could, given the tools they had at the time to establish precedent. there are circumstances in which a court should -- should re-examine precedents and perhaps change its direction or perhaps reject it. but that should be done very, very cautiously. and i keep emphasizing the "verys," because the presumption is in favor of deference to precedent. the question, then, becomes what are the factors you use to change it. and then courts have looked at a

variety of different factors. each -- applying each in a balance and determining where that balance falls at a particular moment. it is important to recognize, however, that the development of the law is step by step, case by case. and there are some situations in which there is a principled way to distinguish precedent from application to a new situation. no, i do not believe a judge should act in an unprincipled way, but i recognize that both the doctrine of stare decisis starts from a presumption that deference should be given to precedent and that the development of the law is case by case. it's always a very fine balance. >> all right, we're going to continue our coverage of the questions and the answers.

sonia sotomayor getting into a lot of detail on when settled law may not necessarily be all that settled, when precedents can, in fact, be changed depending on circumstances. an important issue for a potential nominee -- a potential supreme court nominee. cnn.com is where you can see the hearings uninterrupted. ( crack of bat, cheering )

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questions from dianne feinstein. >> -- then he's working at his lowest -- if he's acting where congress hasn't spoken, then we're in what justice jackson called the zone of twilight. the issue in any particular case is always starting with what congress says or has not said and then looking at what the constitution has with -- says about the powers of the president, minus congress' powers in that area. you can't speak more specifically than that in response to your statement that were part of your question, other than to say the president can't act in violation of the constitution. no one's above the law. but what that is in a particular situation has to be looked at in

the factual scenario before the court. >> thank you very much. this is really very relevant to what we do, and we have often discussed this jackson case, or the steele case, but we just recently passed a foreign intelligence surveillance act. and one of the amendments -- because i did the amendment -- was to strengthen the exclusivity clause of the law, which has been in the bill since the beginning, but that there are no exceptions from which the president can leave the four corners of this bill. so, it will remain to be seen how that works out over time. but i can certainly say to you that it's a most important consideration as we looked at these matters of national security. so, let me ask you this --

you joined a second circuit opinion last year that held that the executives should not forbid companies that receive national security letters to tell the public about those letters. the panel's opinion in the case said, quote, the national security context in which nsls are authorized imposes on courts a significant obligation to defer to the judgments of executive branch officials, end quote. but also that under no circumstance should the judiciary become the handmaden of the executive, end quote. that's dole versus mukasey. given that the executive branch has security for protecting the national security, how should courts balance the executive branch's expertise in national security matters with the judicial branch's constitutional duty to enforce the constitution

and prevent abuse of power? >> i can talk about what we did in doe of reflective of the approach that i took and joined in that case. it's difficult to talk about an absolute approach in any case. because each case presents its own actions by parties and its own set of competing considerations often. in doe, the district court had invalidated a congressional statute altogether, reasoning that the statute violated the constitution in a number of different ways, and that those violations did not authorize congress to act in the matter it did. as the panel said in that

decision, recognizing that deference to the executive is an important national security question, and that deference to congress, because the court was -- district court was invalidating an act of congress that we had as an appellate court to be very cautious about what we were doing in this area and to balance and be consistent with constitution requirements, the actions that were being taken. giving that due deference, we upheld most of the statute. and what we did was address two provisions of the statute that didn't pass, in our judgment, constitutional muster. one of them was that the law, as supreme court precedents had commanded, required that if the government was going to stop an

individual from speaking in this particular context, that the government had to come to court immediately to get court approval of that step. the statute instead required the individual who was restricted to come and challenge the restriction. we said no. government's acting. you have a right to speak. if you have a right to speak, you should know what the grounds for that right are, and you should be told or brought to court to be given an opportunity to have that restriction lifted. the other was a question of who bore the burden of supporting that restriction. and the statute held that it was the individual who was being burdened who had to prove that there wasn't a reason for it.

the government agreed with our court, that that burden violated supreme court precedent and the premises of freedom of speech and agreed that the burden should not be that way. and we read the statute to explain what the proper burden was. there is, in all of these cases, a balance and deference that's needed to be given to the executive and to -- and to congress in certain situations, but we are a court that protects the constitution and the rights of individuals under it, and we must ensure and act with caution whenever reviewing a claim before us. >> thank you very much. one question on the commerce clause in the constitution. that clause, as you well know, is used to pass laws in a variety of contexts, from

protecting schools from guns to highway safety to laws on violent crime, child pornography, laws to prevent discrimination and to protect the environment, to name just a few examples. when i questioned now chief justice roberts, i talked about how for 60 years the court did not strike down a single federal law for exceeding congressional power under the commerce clause. in the last decade, however, the court has changed its interpretation of the commerce clause and struck down more than three dozen cases. my question to the chief justice and now to you is -- do you agree with the direction the supreme court has moved in more narrowly interpreting congressional authority to enact laws under the commerce clause? general, not relating to any one

case. >> it is -- no, i know. but the question assumes a prejudgment by me of what's an appropriate approach or not in a new case that may come before me as a second circuit judge or, again, if i'm fortunate to be a justice on the supreme court. so, it's not a case i can answer in a broad statement. i can say that the court in reviewing congressional acts as it relates to an exercise of powers under the commerce clause has looked at a wide variety of factors and considered that in different areas. but there is a framework that those cases have addressed, and that framework would have to be considered with respect to each case that comes before the court. now, i know that you mentioned the number of different cases.

if you have one in particular that concerns you, perhaps i could talk about what the framework is that the court established in those cases. >> all right. i'll give you one very quickly. restricting the distance that somebody could bring a gun close to a school. >> well, the gun-free zone school act, which the court struck down -- >> right. >> -- in lopez. >> lopez. >> in that case and in some of its subsequent cases, the court was examining, as i mentioned, a wide variety of factors. they included whether the activity that the government was attempting to regulate was economic or noneconomic, whether it was an area in which states traditionally regulated, whether

the statute at issue had an intrastate commerce provision to -- as an element of the crime and then considered whether there was a substantial effect on commerce. it looked at the congressional findings on that last element, the court did, and determined that there weren't enough in the factors it was looking at to find that the constitution -- that that particular statute was within congress' powers. that's the basic approach it has used to other statutes it has looked at. i would note that its most recent case in this area, the raisch case, the court did

uphold a crime that was noneconomic in the sense of that it involved just the possession of marijuana. and there it looked at the broader statute in which that provision was passed and the intent of congress to regulate a market in illegal drugs. so, the broad principles established in those cases have been the court's precedent. its most recent holding suggested another factor for courts to look at, and each situation will provide a unique factual setting that the court will apply those principles to. >> one last question on that point. one of the main concerns is that this interpretation, which is much more restrictive now, could impact important environmental laws, whether it be the endan r endangered species act, the

clean air act, or the clean water act, or anything that we might do in cap and trade. >> oh, in fact, there are cases pending before the courts raising those arguments, and so those are issues that the courts are addressing. i can't speak much more -- >> right, i understand. >> -- further than that because of the restrictions on me. >> it's just that congress has to have the ability to legislate, and in those general areas, it's the commerce clause that enables that legislation. now, as you pointed out, we did revise the gun and make -- the lopez case and make specific findings. and perhaps, you know, with more care toward the actual findings that bring about the legislative conclusion that we might be able to continue to legislate in these areas. but my hope is that you would go to the court with the

sensitivity that this body has to be able to legislate in those areas. they involve all of the states, and they're very important questions involving people's well-being, control of the environment, the air, the water, et cetera. >> i do believe that in all of the cases the court has addressed this issue, that it pays particular attention to congressional findings. i know that individuals may disagree with what the court has done in individual cases, but it has never disavowed the importance of deference to legislative findings with respect to legislation that it's passing within its powers under the constitution. >> thank you. i wish you best of luck. thank you very much. >> mr. chairman, i will correct one thing. i said i had a letter earlier from miguel estrada. that is not correct. it wasn't a letter. >> if we can have a copy of whatever you put in the -- >> okay.

>> i did send mr. estrada a note last night, because i had made an error in something i'd said. i wanted to let him know that. >> well, we both made an error talking about it. >> okay. well, one thing we should remember that mr. estrada's not the nominee here. just as's with all the statements made about president obama's philosophy, his confirmation hearing was last november, not now. it's just you, judge sotomayor, and have a good lunch. and we will come back. who's next? senator -- >> grassley. >> -- grassley will be recognized when we come back in, and we will start right at 2:00. chuck? okay. stand in recess. >> all right, so they're taking a 90-minute break right now for lunch. five senators so far have been able to ask questions, 30 minutes uninterrupted. 14 to go.

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yesterday they had their opening statements. no questions. but today on day two, the questions have started. five senators so far have had 30 minutes each to ask sonya sotomayor questions. they're in a break right now for lunch. the confirmation hearings will resume at 2:00 p.m. eastern. a little bit more than 90 minutes or so from now. and the chairman, patrick leahy, said when he says 2:00 p.m. eastern, he means 2:00 p.m. eastern. so far, he's been pretty much on time every step of the way. one of the key issues that was discussed today, it involves the second amendment and how far the federal government and state and local communities have in dealing with the issue of gun control. let's go to john king and jeff toobin. they're over at the magic wall for us. john, this is a very, very

sensitive issue with enormous political ramifications. >> wolf, we'll go to the case files to explore with jeff. it is a sensitive policy issue one that comes up at every supreme court hearing and even lower appellate court judges as well. it's an important policy question. it's also an important political question. as i pull up the case they were talking about, it was maloney versus cuomo. there are 60 democrats. if they have any chance of blocking this nominee, and they don't think they have one, is it is to peel off conservative and rural democrats where gun rights are big in their state. here's the case, jeff. i want to go to the topic which is, of course, the second amendment. the issue is whether the state of new york can regulate weapons. a man had a possession of a particular martial arts weapon called a nunchaku, and judge sonia sotomayor was involved in the ruling that said new york's law did not violate the second amendment. it only restricts the federal government and not the state to the right to bear arms.

>> right. it relates to a very important case two years ago which is heller in the supreme court, which said the second amendment, which speaks of the right to keep and bear arms applies to individuals, when they are being regulated by the federal government. in this case, the government of district of columbia. the issue in this case is the second amendment right to keep and bear arms, does it also apply against the states as well as the federal government. and that's been a subject of years of litigation in the supreme court. which parts of the bill of rights, which amendments apply against the states as well as the federal government. some rights do apply against the states, freedom of press, freedom of speech. some rights don't. the right to a grand jury. that's not something against the states. and that was the issue in the case. >> let's look at two points by tapping here. as we noted, you can hear it in hatch's questioning, many conservatives have criticized this ruling. right up here is a key point. we'll get to it work right here.

2009, this case hat not yet been appealed to the supreme court, correct? but it could come to the court with conceivably justice sonia sotomayor on the court. >> right. one thing that sotomayor pointed out, in justice scalia's heller opinion, he did not decide the question of whether the second amendment applies against the states. it was left open. the seventh circuit, a very -- a more conservative group of judges, held that it does not apply against the states. judge sotomayor held it does not apply against the state. but what she said is that it is up to the u.s. supreme court to decide which parts of the bill of rights apply against the states. that may be something that she gets to rule on, but the larger point she was making is, this case says nothing about my opinions about gun control. it's simply a question of deferring to the u.s. supreme court about how the bill of rights is interpreted. >> now, that key point, wolf, as we go back to you.

jeff making a policy point saying it's not my view. it's how i interpret the law. opeg see some potential political gain, but it is the white house take right now and i think the republicans can see she hasn't given them room politically. >> it will be really hard for the 58 democrats and two independents who vote with the democrats to be peeled away from their support for sonia sotomayor on this issue or other issues as well. but here's the exchange that the supreme court justice nominee had with orrin hatch, one of the senior republican members of the judiciary committee. >> the footnote that you wrote leaves the impression that unless the right to bear arms is considered fundamental, any -- any gun restriction is necessarily permissible under the second amendment. is that what you believe? >> no, sir. because that's not -- i'm not taking an opinion on that issue, because it's an open question.

>> you admit it's an open question? >> well, i admit that justice -- i admit. the courts have been addressing that question -- >> okay. >> -- the supreme court in the opinion authored by justice scalia suggested that it was a question that the court should consider. >> all right. let me bring in candy crowley, to further assess. this is politically charged material right here, candy. >> there are lots -- i mean, this is the culture, the culture wars, coming to the senate hearing. and obviously senator hatch does not believe -- does believe that, in fact, the second amendment applies to states, trying to bring her out on that. i think what we're seeing here are three different responses from the nominee. the first one when it comes to her public words, not uttered on the bench is, i didn't actually mean that. i don't bring my gender and my race to my judgments. the second one is, basically, the punt. anything that has to do with something in the future. and i think the third one is

case law. i just follow case law. that's what i was doing. and i think that's what we're hearing over the course of these first several hours. >> all right. i want everyone to stand by, because the chairman of the judiciary committee, senator patrick leahy, is going to join us in a couple minutes live. we'll get his take on what has happened so far. our coverage of these historic confirmation hearings will resume right after this. the $9 grand entrance. walmart announces op tops for just nine dollars each. back to school costs less at walmart. save money. live better. walmart.

important day in u.s. history, the supreme court justice nominee sonia sotomayor being grilled by members of the judiciary committee. they're on a lunch break right now, that's why that hearing room over at the senate hart office building is pretty much empty right now. but dana bash, our senior congressional correspondent, is there. dana, the "q" and "a," five senators so far, another 14 senators to go.

for all practical purposes we're only just getting started. >> reporter: we are only getting started, but it is a critical beginning, and it's a beginning that i just got an e-mail from somebody over at the white house, they are absolutely thrilled so far. this is a quote from a senior administration official saying no one laid a glove on her. bottom line is they think republicans had to draw blood immediately and they don't think that republicans have done that so far. but certainly it is not for a lack of trying, at least on the part of jeff sessions, the top republican on the committee, who asked virtually the same question about a dozen times, trying to get the point across that what judge sotomayor is saying today is very different from the theme and the tenor of what she had said in the past in terms of the way you use your experience and where you come from in dealing with things on the bench. but one thing i think is something that's maybe worth noting, sort of swirling around here in the senate hart building is there was a preemptive strike at the very beginning of the questioning today, wolf, from

the senate judiciary chairman, patrick leahy, he decided to ask about the wise latina comment. he left out the controversial part of the quote. he used the quote to sonia sotomayor i would hope a wise latina woman with the richness of her experience to reach wise decisions. when he used that quote it looked to be choreographed between the democrats and the white house he didn't put in the important part which she also said many times is that she thought a wise latina woman would reach a better conclusion than a white male who had lived that life. so, that certainly is something that is raising questions here. and maybe you'll be able to ask senator leahy why he decided to do that and whether he did it intentionally. he is not somebody who misspeaks especially in a setting like this and especially in a quote that important. >> i certainly will. and he's standing by. we'll be speaking with him momentarily, dana, the chairman of the senate judiciary committee. we're hoping to speak with other

members as well. let me bring in maria echaveste and alex castellanos. maria, you're a democrat, you worked in the white house. you teach law at the university of california-berkeley. why can't she just say, i really didn't phrase that well, i really didn't mean it. i made a mistake? >> she did. >> she didn't go that far. >> she said it was a flourish. >> she said it was bad, bad language. she made it clear that the way it came out isn't exactly what she meant. i think that her point about she's talking to young students and trying to inculcate them with some pride and with some inspiration and we all say some things that when we look at it in black and white it doesn't sound very good. >> but she just didn't say it once, she said it in a whole series of speeches. >> what's really bothsome senator sessions and to some degree senator hatch, again, this notion that by exploring --

by being proud of who you are, your diverse background, that somehow you're supposed to, like, leave that behind. and as i've said earlier, no justice does that. but what she was very clear about was that she -- in that very same speech, she said, i as a judge have to make sure that i'm not inculcating the biases or prejudices in -- when i'm making the decision. and that's what all -- we expect from all of our justices. >> because she certainly, alex, she said it yesterday, she's going to be guided strictly by the law. >> yes. again, this is a case of split personality disorder here. i think we're almost seeing. because it wasn't just that she misspoke one time. this wasn't just an occasional rhetorical flourish, this is an entire bouquet of rhetorical flourishes. are you telling us when this judge says something phi or six

times, don't believe her, believe her now. is this the credibility that she's bringing to the table? it's a fair question. >> i think the democrats are responding, saying, look at the case law. try and find a place where she did put that personal prejudice in -- >> ricci. >> no. ricci was a decision about whether the city could have thrown out the test. >> in your opinion. >> no. actually, they were very clear. it went up. there was a difference. the supreme court made new law. that's what we have to recognize. >> the supreme court disagrees with you and with her. >> but she was following the law up until that point. >> five members of the supreme court disagreed, four agreed with her. >> exactly. >> so, it was a split decision. but the majority obviously disagreed with her. >> that's the court that she aspires to join and to gloria's point, it was a particular case in which the town of new haven was acting to ensure the firefighters' liberties.

>> hold those thoughts. patrick leahy, the chairman of the senate judiciary committee, will be joining us.

and we're joined now by the chairman of the senate judiciary committee, patrick leahy, the democratic senator from vermont. senator, thanks very much. i assume you're pleased so far by the way, how this hearing is going. >> i'm pleased by the way the hearing's going, but i'm especially pleased by the selection of judge sotomayor to go on the -- on the supreme court. i mean, here's a distinguished jurist. she spent years first as a

prosecutor, prosecuting everything from murder cases on, to years on the trial bench and then on the court of appeals. she's actually had more experience in the federal court than anybody in decades has gone on to -- gone on the u.s. supreme court. >> so, i'm not surprised that you like her a lot. you did raise the issue in your first round of questions, the wise latina woman comment, but you didn't read the entire statement that has caused so much controversy. i'll read it right now. i would hope that a wise latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn't lived that life. alex castellanos, among others, suggesting, well, maybe there's a split personality she has because today she seemed to walk away from those comments, saying it was rhetorical flourish, she

really didn't mean it the way it came out. >> well, i'll let her speak to it. i was asked when she said ultimately and completely it's what's in the law that counts. every single senator, i mean, is being a little bit disingenuous for senators to seize on that, because every single one of us go out of our way to talk about our background when we're running for office, when we're in debates and everything else. everybody is shaped by -- by who they are. but as she said, ultimately and completely, you have to follow the law. and what is more objective is not what she said in a speech, but how is she ruled by a judge? i mean, here's somebody with a longer track record in the federal courts than anybody, certainly, since i've been old enough to vote, who's -- who's been nominated for the supreme court. and every single objective study finds her to be mainstream

judge, who follows precedent, just as she was a very tough prosecutor who followed the law. and i think it's kind of grasping at straws. we seem to be two levels of attack on her. one, the speech she gave, which has actually nothing to do with the way she's ruled, as all the studies show, and the other, of course, is attacks on things that president obama has said, as though he's up for confirmation. i tried to remind some of my republican friends that his confirmation battle was last november and he sailed through that one pretty well. >> candy crowley has a question for you, senator. how are you, senator? >> 59. >> given the treatment that republicans looking back see that justice roberts and justice alito got, do you look at this and see that they're asking frivolous questions? do you think that it's not important what she has said publicly? >> well, i think that what they keep asking the same question over and over again, they're going to keep getting the same answer over and over again.

if that's all they have -- if that's all they have, well, they'll have to make up their own mind. i'm not going to ascribe motives to senator's as to why they ask the question. but i think the american people want to know what kind of justice will she abobe. and they can look at her years on the trial court, her years as a court of appeals judge. actually, i would suggest even look at her background as a very tough, no-nonsense prosecutor, and i think they'll find somebody who will make a very, very good justice on the supreme court. i also see a very warm human being, with a great sense of humor. but also, even more importantly, with a tremendous grasp of the law. >> but public statements, senator, shouldn't be considered here, but warm personality should? >> no, that's not what i'm saying, and you know that. what i'm saying is that they have to look at the whole person. obviously public statements, sure, go ahead look at those. but when we have, as subjected

they were concerned about her because president obama used the word "emthy," which, of course, is what president bush -- the same words president bush used when he nominated clarence thomas, that that might be a strike against him. well, he's -- neither president bush or president obama is up for confirmation. she is. what i'm saying is, you want to know what kind of a judge she's been, then look at what kind of a judge she's been. and the fact is, by every single standard, she's a very, very competent, very professional, mainstream judge. that's all i'm asking people to do. and i think that's why you're going to find both republicans and democrats will ultimately vote for her for her confirmation. this is not going to be a party-line vote. >> chairman leahy, john king here. thank you for being with us. i want to ask you a question that you're passionate about. you believe the previous administration, bush administration, overstepped its

bounds on many occasion. senator feinstein tried to explore her views on that. she has one case where she said the coast guard had the right to have random, warrantless searches on some vessels if it believed there was a national security risk there. i'm wondering, as you listen to senator feinstein and her questions, do you find judge sotomayor, who might be perhaps someone who has two differential a view to the executive branch when it comes to presidential power? >> i wouldn't take just one case. i think that courts should always look at what a executive does and realize that the executive's role in our three branches of government, but i don't think that they have to show overdeference to either of the other two branches of government. their deference has to be only to the law. >> we got to wrap it up, senator leahy. but for our planning purposes, what time are you planning on wrapping up this second day of the hearing? >> i know, i'd love to be able -- i don't