but i think by the time we come back in at -- at 2:00, we'll have a better idea. but i would hope to go at least until 6:30, possibly even 7:00. >> all right, we'll be with you every step of the way. >> thank you. >> senator leahy, thank you very much. we'll continue our coverage one hour from now. the committee will reconvene. we'll have extensive coverage on what's going on. historic hearings under way at the senate judiciary committee. there's other important news going on right now, let's check in with kyra phillips. she's in the "cnn newsroom." a home invaded, a couple murdered and a family shattered. but not just any home or any family or any home. we're pushing forward on a chilling crime and the latest moves by police in the florida panhandle. and it's a nightmare at 30,000 feet. a hole you could put your head through appearing in the roof of a 737. after the emergency landing, emergency inspections at southwest airlines take place. hello, everyone, i'm kyra phillips, live at the cnn world headquarters in atlanta. you're live in the "cnn you're live in the "cnn newsroom."

-- captions by vitac -- www.vitac.com well, we've got more movement on that murder mystery in florida right now. the wealthy couple with 14 children, most with special needs, gunned down last week in their home. two more arrests in that case have been made. one, a 16-year-old boy, another 19 years old. they were arrested just a couple of counties away from the crime scene. total arrests now, six. the law has been pretty tightlipped about what's going on. just promising the case is, in their words, a real humdinger. there's chilling video from the house security cameras of the intruders running up to the door. it's still not clear just what they're after. so, we're kate opening the escambia county sheriff's office to have a press conference any minute now to get us up to speed. we'll take it live as soon as it happens.

well, let's be frank. how many times do you really listen to flight attendants when they give preflight safety briefs? well, after this story my guess is you'll pay much closer attention before you take off. you may have heard about the football-sized hole that appeared over one of southwest's passenger seats ass boeing 737 was on its way from nashville to baltimore but had to land asap in charleston, west virginia. well, the airline has wrapped up emergency inspections on its 737 jets now. those inspections turned up no similar problems. 126 passengers and 5 crew members were on board that aircraft. the cabin lost pressure when that hole appeared, but apparently the passengers stayed calm and put on oxygen masks that dropped from the ceiling. amazingly, no one was hurt. >> 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 -- the inside was trying to pull out. and it was really -- it was crazy. >> well, southwest airlines says

that there's no responsible -- or reasonable -- or responsible way, rather, to speculate as to a cause at this point. they said that they have safety procedures in place. they were followed in this instance to get all passengers and crew safely on the ground. inspectors with the national transportation safety board and boeing are trying to determine why that hole appeared. ben berman, the former chief of major investigations for the ntsb, had this to say on cnn's "american morning" -- >> well, my first thought was here we go again, and i was thinking back to an incident that occurred back in 1988 when an aloha airlines jet lost the whole top of the fuselage. that was a very massive failure. one person was killed. >> there's a picture of it there. >> sure. everyone was sitting out in the open. it was worse than a skylight. i thought of that. and then i thought of the recent events where a couple years ago southwest airlines was fined are for not doing inspections like the aging aircraft inspections of the fuselage for cracks that

are mandated right now as a result of the aloha airlines incident. now we want to take you straight to escambia county where the sheriff's department is holds the presser on the family of the parents murdered of those 14 special needs children. >> ashley is the patriarch of the billings family now. sadly, her mother and mother are the ones that met this tragedy. have just a few opening statements i'd like to make before we get into the meat of asking you here today. last thursday, july the 9th, a tragedy occurred in escambia county with the murder of byrd and melanie billings. where we as a society -- and specifically escambia county -- witnessed the worst in man, hatefulness, cruelty, and indecency. but in the last five days, as

the sheriff of escambia county, i have had the honor, as the sheriff of this fine organization, to witness the best in man, compassion, kindness, integrity, and professionalism. last thursday, after this tragedy, we asked melanie and her husband, members of her family, to come to the escambia county sheriff's office one day after this tragedy. and i'm sure, ashley, you may recall standing in the lobby of the escambia county sheriff's office, while you feel very helpless at that moment, i asked if you there was anything i could do for you, and your response back to me was, sheriff, find the people who did this. it is my honor today to tell you, ashley and your family, we have found them. and they are in custody. we will be passing out to the press the following package,

seven individuals are currently in custody related to the murders of byrd and melanie billings. you will note one photograph is absent. the reason for this is, this individual is a 16-year-old juvenile. and the last thing i want to do before i turn it over to mr. eddons, is to give credit where credit is due. if you have a point in your life where you have a moment that you can stand and serve with people of greatness, you are truly blessed. i had that opportunity during my military career on more than one occasion, and i can tell you in the last five days, i have stood in the presence of greatness at the escambia county sheriff's office, and i would be remiss in not recognizing personally the men and women that in five days have brought this case to its conclusion. and i would ask that you direct your attention to this side of

the room. commanding our investigative unit is captain bruce wood. our case manager was sergeant rusty hoarde. sergeant buddy nesmith, investigator tom watts, investigator tim hardy, investigator chris baggett, investigator bobby guy, investigator zach ward, investigator lee thyreey, investigator tamara barbara. also our crime scene unit and their work in this case. i also must recognize our intelligence analyst who worked around the clock with our investigators, miss brianna hammon. and additionally we had close coordination with mr. eddon's and all the attorneys there, the florida department of law enforcement and specifically members of the federal bureau of investigation headed by special agent stewart, members of the

tobacco, alcohol and firearms, special agent beech and the department of drug enforcement with special agent kulbis. at this time i will conclude my remarks until your questions and i will turn the podium over to mr. bill eddon. >> as you know, i'm state attorney in this area and in a major investigation such as this, it is important that law enforcement and the district attorney or state attorney's office work closely together. in this case, that occurred, and i would like to personally thank the sheriff and the members of his team, who worked with my office. we had several people in my office that personally came out in the sheriff's office and worked. and i can assure you, the second thing that's unusual in some ways about this is the vast number of resources that the sheriff allocated to this situation. you saw and you've heard him list some of them. in addition to that, those resources were very effective

because they did really work around the clock. they didn't -- they didn't quit. and i think that is a feature of this investigation that is unusual. in some regards, it certainly is very appropriate to honor those people. again, in closing, i'd just like to say that i am -- i share the sheriff's sorrow, as this community does, to this family and am hopeful that the matter is concluded now, and hopefully they will be able to move forward. although i realize how difficult that must be. >> at this time we'll take your questions. >> can you talk a little bit about the connection the suspect had with the family. people want to know why that family was targeted. >> again, we have a small amount of business ties, some

friendships, but no direct ties that we can at this time confirm between the members here that are charged with this crime and the billings family. >> were they working on the splot? >> there were occasions where mr. gonzalez sr., who had a pressure-washing business, there was a few occasions that wayne coldiron worked for him. i think we've been able to confirm that he was at the property maybe at least one time. but, again, where you would think to look for a long-term relationship where property could, you know, be under surveillance by those coming and wanting to do harm, we've yet to confirm that. >> you said just a moment ago that you hoped this matter is concluded. do you feel this matter is concluded, or is there another layer now that you know that there were people on the property? >> there are some loops that need to be closed, some follow-on investigations. we have at least one individual that we are specifically looking for at this time -- or at, i should say, excuse me, not "at."

and there may be others. but at this time we only have one identified. >> what is the reason that federal investigators might be involved? i know you said they have been. is there a reason beyond the current seven, or is there something else that they are involved with still? >> there are elements of this case that go outside of the state of florida, which i will not speak to. and the reason being is, is that we had a meeting yesterday with the federal agencies, and we passed along to them the information that had been developed during this case, and so now it's within their purview to investigate this case, because -- if it's within the confines of escambia county, of course, we will be involved. on a routine basis, video enhancements, we used the federal bureau of investigation, the florida department of law enforcement, ballistics, any member of this group that may have been involved with drug activity we would, of course, scored nate with our division and the drug enforcement agency, so they were involved from those perspectives. again, anything that we developed outside the confines

of the state of florida have been turned over to those agencies. >> were these men hired to kill the billings? >> we have no knowledge of that. >> motive yesterday? you said that there was one motive or more than one motive. can you talk about the other motive? >> we've moved into the prosecutorial area and i'll defer that question to mr. eddon. >> i think the safest, easiest, clearest thing to say is that the primary motive in this case was robbery. home invasion, robbery. >> do you know -- >> were valuables -- >> pasheden me? >> what did they rob from there? can you say at this point? >> well, they did take items that you would normally expect to be taken in a robbery. >> money, jewelry? >> well, a safe. >> where was the safe? >> well, we really can't go into any additional details. i gave you that in order to demonstrate to you what the motive was and put to rest many questions about the motive.

and hopefully that will do that. [ inaudible question ] again as prosecutor, i'm sure you understand that i'm not going to get into the specifics of the prosecution of the case. really most of the questions you're going to ask me about the prosecution of the case and really the facts of the case i will not be able to speak to. and i'm sure that -- that -- that you understand. >> what were some of the contents of the safe? >> i'm not at liberty -- not prepared to go into that at this time. >> was there knowledge that the safe was in the home? >> i'm not prepared to go into this at this time. i really think that by indicating to you one of the items that was taken we'd demonstrate to you the primary motive was home invasion, robbery. and really, it's going to be difficult for either the sheriff or i, either one, to answer additional questions about this, because this case has to be tried in a court of law. >> what tried the suspects together, the people from escambia county?

>> really, myself, want to go into detail on that. the sheriff will speak to that briefly. >> again, what we have is business dealings, again, i'll use the example of mr. gonzalez sr., he owned a pressure-washing business, you know, part time. he was basically a day laborer also. he would hire members of this group or this organization to work on a part-time basis on anas-needed basis as work would come through. the individuals that we have secured in the last phase of this investigation that are currently in custody are from okaloosa county. their connection is from an auto detailing group. the one pivotal person in this organization, if you will, is leonard patrick gonzalez jr. he is the organizer. >> you talk about -- [ inaudible ]? >> one moment.

we'll not speak to that issue at this time. >> you said that there's one more person that you are sort of looking at. >> yes. >> what is the nature of the thing that you're concerned about with that individual? >> anyone that -- >> with the open case? >> anyone that aided or abetted in the commission of this crime. >> sheriff, did any of these suspects flat-out confess to the details? >> they didn't. they didn't. [ inaudible question ] no, i just stated, the last four individuals are from okaloosa county. >> can you elaborate on the power washing? >> can you elaborate what the goal was in this? >> no, he did not. >> when was the last time the suspects were actually [ inaudible ]? >> that information we won't release at this time. >> sheriff, what about the -- can you clarify the connection with the okaloosa county people and the power-washing company? whose company was that? >> no, you confused my statement. the power-washing -- the power-washing company was owned by leonard patrick gonzalez sr., senior, the older.

okay? he had a pressure-washing business that he operated. we have tied wayne coldiron to him, all right, on a day laborer basis. now, you go to okaloosa county, we have four individuals over there who are tied to an auto detailing business, called fifth dimensions, fifth dimensions auto detailing in okaloosa county. >> does this make you feel better? >> we've invited the family to this press conference. we did not state that they would make any statements at this time. >> you mentioned auto detailing. the people in okaloosa county worked there. what was their connection with the people in -- >> they, again, had a friendship with leonard patrick sr. -- or, excuse me, junior. >> and they all worked in the okaloosa county arrested the suspects that worked for this fifth dimension auto detailing? >> yes, they did. >> were any of them owners of it? >> yes, yes. >> who owned it? >> if the primary goal was robbery and they took the safe, why, in your view, would they

then have to kill these two people? >> that's speculation. i will not speculate on how the crime spun out of control. >> sheriff, do the people in escambia county, okaloosa and surrounding counties feel safe that you got everyone behind bars? >> you bet you, because they have the escambia county sheriff's office. >> sheriff, let me ask you a question, if you wouldn't mind. are you talking about a couple hundred or did they put all of it in the safe and not put it in the bank, or was there several hundred thousands, because this was a wealthy family? >> we have spoken to that issue. we will not discuss the contents of that safe. [ inaudible question ] yes, we do. >> can you release that? >> no, we cannot. [ inaudible question ] that's not what i said. i used an example, who knows why a crime would spin out of control. and unless you're present at the time the crime has occurred and you're an active participate in that, you can't speak to that issue. >> have they spoken to that?

>> no, they have not. >> sheriff, was there a struggle? is that why they were killed, maybe pulled a mask off, something to that effect? >> i will not speak to that issue. [ inaudible question ] well, understand something, during this investigation, at its inception, we didn't focus in on anyone. again, this was due to the professionalism and the hard work of captain wood and his group. we started with a videotape surveillance that we had -- that we pulled that gave us a red van, and from that, again, the investigation progressed to the development of these witnesses. at no time did we know, until the investigation ensued, that anyone was involved. we had no names, of course. >> can you discuss at all how it came -- [ inaudible ]? >> we have information that indicates that there was an amount of practice that was vovet. there are a couple of

individuals that have prior military backgrounds in this group. and so, again, as we stated early on in this investigation, it was really only one element, it was a very well-planned and well-executed operation. >> sir, can you tell me where it was along the average development where you sort of got your big break, starting with the red van? when did you start to put faces on the people who were involved? >> of course, the big break was the video surveillance system that the billings family had in their home, actually, on that compound, if you will. and the second big break was, again, the news media -- and, again, my thanks to all of you for doing this for us, you put it out in the case and into the media and we got e-mails and calls for red vans all throughout the surrounding area. and we focused it down, or narrowed it down, i should say, to such a point that we got a lead on this specific vehicle and then the case was on. >> sheriff, were they admitted and can you express anything

more? >> everyone expresses remorse when they're caught. >> what was the 16-year-old doing? >> are the charges against leonard gonzalez sr. been upgraded now? >> we're in the process -- a process of upgrading the charges on mr. gonzalez sr. to an open count of murder. >> will all the suspects be charged with an open count of murder? >> yes. >> what would a 16-year-old do? >> he was part of the auto detailing group. and, again, he was with the group. >> was there a connection between the time this occurred and the safe? >> i'm sorry, i didn't understand. >> a connection between the time of day this occurred and the safe? >> there is not. not that we can determine. >> were all the items taken recovered? >> let me correct that statement. not -- that is a question -- to answer that question would contain information i'm not prepared to speak to. >> can you fill us in on the backgrounds of these suspects?

>> they have -- numerous individuals here have criminal backgrounds which i think most of the media has pulled. if you will get with us after the press conference, we will assist you with that very thing. >> military background? >> again, we will get that information after the press conference. >> was everything that was recovered that was taken? >> i will not speak to that issue. >> how about the guns? >> i will not speak to that issue. >> how big was the safe? did they need five guys to pull it out of the house or -- >> it was a medium-sized safe. >> what is a medium-sized safe? >> i won't speak to that issue. if you go -- if you go to any safe or lock company, you'll see -- you'll see small safes, medium-sized safes. >> you never know. you never know. >> it's a visual thing. >> sheriff, will you do anything with the 911? >> i think you have made a statement that we're not, is that correct? >> not at this time. as the case progresses under the rules that exist in florida, a lot of additional information will come out that we really cannot address here at the news conference today.

and under our rules, once the paperwork has been filed with the court, then it's public record and you'll have access to it, and you can check. there will be some information filed relatively soon that will answer a lot of the questions that you people in the media, legitimate questions, you've asked today but we just cannot answer. >> what's going on with the children? >> the children are with family members. i've stated many times they are in a safe, loving, and secure environment. we are working with the family through our victim's advoscat and through some of our investigators in making sure the family is taken care of. >> mr. eddon, can you speak whether the people will be prosecuted together or the same prosecutor? >> the train is moving very fast. those decisions have not yet been made. i'm glad that we were able to move forward as rapidly as we did and get to this point. i think the sheriff and i both

agree that now is a time to consolidate the investigation, to review the investigation, to tie up loose ends. we'll begin to focus on issues involving prosecution and court after that. >> some really good news there for the family of the billings. you'll remember byrd and melanie billing, the wealthy couple with 14 children, most of them with special needs, were gunned down in their home. it was quite a murder mystery there in florida for a while, trying to figure out why anybody would want to kill these two. specifically when you look at what they've done for all these children. and now the big break came for the sheriff's department there in escambia county. the surveillance video that was on their property, the police were actually able to enlarge those pictures and start connecting the dots and now they say they have seven people in custody. the seven people they believe were responsible for those murders. the motive? robbery.

apparently some things were taken to lead them to believe it was the primary motive. a safe was taken from the home. but that's all that authorities would get into right there. and another thing that they added, one of the latest in custody now, a 16-year-old boy. the mastermind of this group, a man running a pressure-washing business. these are the guys right here, by the way. the only one missing is the picture of the 16-year-old. and they were all working in cahoots with each other. some of them had done some work there on the billings' home in their estate there, and that's what led to why they picked that home as a target, thinking they were going to get a lot of money and other things there inside the home. it's a case that we're saying on, and we'll bring you all the developments, of course, as we get new information. let's go ahead and get back to the southwest airlines story we were telling you about, the football-sized hole that appeared over one of the passenger seats of the boeing 737 that was on its way from nashville to baltimore. as you know, it had to make an

emergency landing in charleston, west virginia. well, here's a look at that video. the airline has now wrapped up emergency inspections on its 737 jets. those inspections, by the way, turned up no similar problems. 126 passengers and 5 crew members were on board that aircraft. the cabin lost pressure, but apparently the passengers stayed calmed and they put the oxygen masks on that dropped from the top of the cabin. well, inspectors at the national transportation safety board and boeing are trying to determine why that hole appe appeared. ben berman, the former chief of major investigations for the ntsb, had this to say on cnn's "american morning." >> well, my first thought was, here we go again. and i was thinking back to an incident that occurred back in 1988, when an aloha airlines jet lost the whole top of the fuselage. that was a very massive failure -- >> there's the picture of it right there. >> one person was killed. sure. everybody was sitting out in the open. it was worse than a skylight. in any case, i thought of that.

and i thought of of the recent events where a couple years ago southwest airline was fined for not doing inspections like the aging aircraft inspections of the fuselage for cracks that are mandated as a result of the aloha airlines event. >> what did they figure out bt aloha airlines plane that may help in this situation? >> well, they show that you need to have a whole inspection of airlines because they are flying longer than anticipated. and the focus on aging aircraft has developed in the worldwide airlines industry that has allowed good maintenance and inspections procedures to keep the airplanes flying safely. i thought, well, this is going to have to be another look at and it we'll see what caused the football-sized hole in the fuselage to develop and may require new inspections or different inspections. the investigators, the ntsb investigators, will be looking closely at the metal, will cut out a piece of the metal under a scanning electron microscope and

they will be looking for metal fatigue or overstress. if it's metal fatigue that we've been seeing, they will see rings on the metal that show like tides on the beach. as the airplane pressurized and depressurized on each flight. they will be looking for the characteristic signs. they'll probably be able to develop exactly what happened here. >> and we'll follow it, of course. well, president obama is going to bat for community colleges, but that's not why he's warming up. the chevy open house.o where getting a new vehicle is easy. because the price on the tag is the price you pay on remaining '08 and '09 models. you'll find low, straightforward pricing. it's simple. now get an '09 malibu 1lt with an epa estimated 33 mpg highway. get it now for around 21 thousand after all offers. go to chevy.com/openhouse for more details.

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well, you may remember that disturbing story tat we told you about a number of days ago about the burr oaks cemetery in chicago, illinois. it's a historic -- historic cal -- or historic black, african-american, cemetery. and we had found out, and done a number of stories, on the investigation that was taking place that employees there were actually digging up the bodies. nearly 300 bodies, we are told,

and reselling the plots. well, we're now getting word that michelle obama, the first lady, her father, frazier robinson iii is buried in that cemetery. you may know, too, that reverend jesse jackson came forward, appalled by this, asking for a much bigger investigation into this. we don't know yet if mrs. obama's father's grave site has been disturbed. if he is indeed one of those bodies that, unfortunately, had been dug up and reburied, put into other plots. also it was reported that a number of these employees would put more than one body into one plot. anyway, pretty disgusting story that we've been staying on top of, and now we're getting word that the first lady's father is buried in the burr oaks cemetery. an historic black cemetery, and we'll continue to follow that investigation. meanwhile, her husband, the president, is on his way to michigan to pitch a multibillion

dollar boost for community colleges, and then he's off to st. louis to pitch. our senior white house correspondent, ed henry, traveling ahead, joins me now on the phone from the detroit suburb of warren. does he have his baseball cap on? i'm not quite sure. hey, ed, you got good tickets? >> i'm not going on to the all-star game unfortunately. i'm staying here in michigan. the president is going on with a small group of reporters. >> well, tell me about it. tell me about the trip and then we'll talk baseball trivia. >> absolutely. the backstop is michigan is a state the president won, he beat john mccain handily. a pivotal state in the midwest, a lot of electoral votes. and a lot of people hurt here, the unemployment rate 14%, much higher than the national average of 9.5%. and the president will be greeted by a scathing editorial in "the detroit news" that the stimulus package is not working. he's heard it before. you heard him push back in the anderson cooper and telling cnn that he believes it is working

and he needs some more time. scpoo we expect the president to make that pitch today, but a broader pitch is he wants to say he's got a new plan worth $12 billion to sort of beef up community colleges, help them with their facilities, give them more scholarships, sort of encourage people especially in states like michigan where you've got people who maybe lost their jobs in the auto industry, those jobs are not going to come back, very unlikely to come back. people need to learn new skills. they need to be retrained. he thinks the way to do that is to beef up community colleges, kyra. >> after doing that, moves on throw the first pitch out at the all-star game. the last person to do that -- or the last president was john f. kennedy. >> well, you know, he would be the fourth at an all-star game is my understanding. and, you know, the big thing as a president, is to not be embarrassed and bounce that on the way into the home plate. because especially -- >> that would be a good throw. >> yeah. people hurting right now, you don't want to add to the woes by having a president bounce the ball. he said today, he told reporters, his aim is to keep it high. he's been loosening his arm a

little bit. and the last time that he -- he threw one was i think in 2005 at the american league championship series, his beloved chicago white sox. the president joked while he think it was a strike, it was only 30 miles per hour. that's all right. there's no batter over there. as long as you don't bounce it and get it over the plate. >> over the plate and into the glove. he's a good athlete. we've seen him play basketball, i don't think he will have a problem throwing the first pitch. >> he won't. but when i toss it around with my son, i think i toss it 40 to 50 miles per hour. >> you have to brag, don't you? you know what, next time i'll clock you. >> okay. >> ed henry, enjoy the trip. appreciate you calling in. >> all right. well, anything you say can and will be used against you. it's true for criminal defendants and it's true for supreme court nominees, case in point, sonia sotomayor. now you've seen it live on cnn, president obama's replacement of david souter trying to explain the single most controversial

comment of her career, that a wise latina might often reach a better conclusion than a white man who hasn't had the same experiences. >> the context of the words that i spoke have created a misunderstanding, and i want -- a misunderstanding, and to give everyone assurances, i want to state upfront, unequivocally and without doubt -- 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. >> and joining me now to talk about the hearings, our wise panel, the high court, shall you say, of cnn, senior legal analyst, jeffrey tooben who has written a book about the supreme court. cnn's senior political analyst

gloria borger, cnn's senior political correspondent, candy crowley, republican consultant and contributor alex castellanos and democratic consultant, maria echaveste, i got it all out again. hello, guys. >> hello. >> my guess is you're probably thinking i hope now once and for all this whole conversation about a wise latina woman is going to finally go to way -- or go away. has it been put to rest? have the questions been asked? has she been able to talk about it, now do we move on? >> i hope we'll move on, but i suspect there will be a few more senators coming back to the issue. but she said quite clearly that it was a bad choice of words. and she stated quite strongly that she doesn't believe any group has a lock on wisdom. and so i think that she's -- especially her reference to her 17 years, her court decisions, tell you what kind of judge -- justice she's going to be, based on the fact that her cases do not reveal any sort of bias.

>> and, of course, this has been a huge subject matter for weeks and weeks. i should say months and months and months. samuel alito in 2006, a lot of people would say he wasn't hammered like that. let's take a listen to what he had to say -- >> when i get a case about discrimination, i have to think about people in my own family, who suffered discrimination because of their ethnic background or because of religion or because of gender. and i do take that into account. >> jeffrey toobin, is there really a difference between what alito said and what sotomayor had said? >> not a big difference. you can talk about the subtleties of how much people's personal experiences affect how they judge. certainly what sotomayor said is the same thing that alito said. it's the same thing any nominee says, is i will just decide cases according to the law. now, the fact is they all say

that, yet they divide 5-4 on a lot of cases. what matters more, i think, than statement a rote statement that you believe in the law is what is your ideology, what is your judicial philosophy? they're a lot more reluctant to talk about that, and sotomayor has been cagey about judicial philosophy as well. >> interesting. you mentioned talking about personal experiences. i'm thinking about gun rights and patrick leahy asking a question and how she responded. let's take a listen to that. >> i understand that how important the right to bear arms is to many, many americans. in fact, one of my god children is a member of the nra, and i have friends who hunt. >> interesting. candy crowley, in light of all the controversy that has come forward about her personal experience, as a wise latina woman, was this a good move, to

once again personalize? >> well, sure. because i think that that particular line of attack is not going to go anywhere at this point i think you will hear more of it because it's a point republicans want to make in the senate. they tend to make points over and over again, whether they're republicans or democrats. what's reinteresting about that answer, i think, it's pretty typical of how she took some of those questions. she'd first say, i applied the law. and then she would say things that are actually kind of irrelevant as to how she might rule on something. well, i've got a godson with a gun. so, it tends to be somewhat reassuring, but it's kind of meaningless when it gets down to any kind of decision she might make. >> and, kyra, i'd just like to say, as a native new yorker like sonia sotomayor, i felt that she was really kind of stretching there in terms of identifying with hunters. i'd just like to say, having grown up on west 90th street, i don't know anything about hunting. i don't think most new yorkers

know anything about hunting. and the idea that her godson is a member of the nra is a pretty tangential -- >> she knows a lot about guns because she's a former prosecutor. and she's tough on crimes. she knows about guns in the city, but she knows about guns in the city. >> that's interesting. >> i know a lot about hunting because i saw "the deer hunter." >> oh! but, you know, that's interesting, gloria, you just brought up the point about the fact about -- that she was a prosecutor -- >> right. >> -- that's interesting. i think it was leahy that even said, that's what republicans and democrats should be focusing on, and let's talk to her about what a tough prosecutor she was and let's get a little deeper on the issues, specifically on gun rights. >> well, you know, i think you're going to hear more from democrats delving into her background, talking about how she was a tough prosecutor, how she was tough on crime, because that's something they can use to try and convince those few republicans that it's a good idea to go along with them and

vote for her, in fact. being tough on crime is a good thing. and even though there are lots of republicans who are going to use her case on guns against her in the whole question of whether she supports the second amendment or not, this is something they can try to use to balance that. >> alex, critics saying that republicans asked a lot of frivolous questions. >> well, that's not -- i thought republicans were actually very factual, going over the record. they maintained a very civil tone in all of this. senator hatch's questions were very pointed, and it's her record that was on the table, you know, for example, when we were talking about her being a "tough on crime" prosecutor, when she was a prosecutor is when she said, even though i'm a liberal and i -- and i have a harder time dealing with crimes, accepting crimes that are socioeconomic crimes she called them, like minor assault, she said those are harder to prosecute for me, because i kind of understand why people commit them. they're poor, they're

disadvantaged. i do have an easier time prosecuting violent crimes. so, those outraged her, i believe she said. well, again, that's not necessarily a "tough on crime" prosecutor. so, asking where what she said, especially when i think today we saw her just reverse field on everything she'd said that was in question over the past, you know, 20 years. she -- today she said, i meant the opposite of everything i said when i said we get to choose which facts judges get to create the law. so, she -- there seemed to be two sonia sotomayor's up there today, and i think they can only confirm one. >> alex, maria, candy, glor ra, and jeffrey, we'll be talking all week. thanks, guys. >> sure. killed in afghanistan, honored in england. i think i'll go with the preferred package.

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two u.s. marines have been killed in afghanistan. a military spokesperson says they died yesterday in the southern helmand province. 4,000 marines are taking part in their biggest operation in afghanistan since 2001. briton today is honoring its fallen heroes. paula newton joins me from our london bureau. quite an incredible honor, paula? >> reporter: it is. eight soldiers killed in a 24-hour period on the weekend. it is this outpouring, really, of affection from these soldiers from complete and utter strangers. there is this town they go tloo in england, that's a neighboring town to the air base. for months, i have been there, kyra. for months, they spontaneously stop what they are doing and go

out on the main street and stop silently. what has been so different, when they have gone over the dramatic events of the last few days in afghanistan, it has been this outpouring, crying, sobbing, applause, scenes we have never seen in britain for this afghanistan campaign. i think these pictures will mean a lot to the people still serving in afghanistan. >> paula, as we look at just throngs of people and how many turned out and the number of cars and the controversy we have had in the states to not somehow pictures and people talking about the wars in afghanistan and iraq have been forgotten and that we don't honor those that have died in the wars, we think, this is exactly what we should be doing in ut states for every one of those men and women who come home from the wars.

>> reporter: kyra, when i covered the story several months ago, we spoke with two american parents. they were very poignant, both speaking for different sets of parents. some wanted a ceremony completely covered the way it is here in britain. others said no. my son is more than a flag-draped coffin. what the obama administration has done by reversing the policy decision, they said, yes, we are going to leave it up to the families. if they want this televised, we will do it. the repatriation is completely different in britain and other countries and the united states. there is still a feeling from some families in the united states and britain saying, we feel that the sacrifices of our children, or husbands and wives, no matter how you feel with the mission in afghanistan, we feel their sacrifices are being overlooked. >> you live there, you talk and interact with so many of these

families. is it still a skeptical public or less skeptical? what's the vibe among the people? you look at so many that turn out to honor the fallen. where are their hearts? >> reporter: i think their hearts are always with the troops. the people fighting in the field volunteered for this job. they believe in their mission. when you translate that to the public, it doesn't matter which nato country you are talking about, whether it is going to be the united states or the french or the dutch or the poles, what's happening is people want to know. after almost eight years in afghanistan, how do you define success? they want to hear from the government, from prime minister gordon brown to president obama. they want to know when they are going to be successful and be able to pull out and say, mission accomplished? that's a highly charged phrase

thaechl that. that's what we are hearing from the public. they are spending $5 billion on this war just this year. they are saying, we want to know when we can feel good about what we are doing in afghanistan and the lives we are sacrifices? three of them just 18 years old. can you imagine? >> no, i can't, actually. paula newton live from london. you are a mom too. you know that. that's a heartbreaker. first lady, michelle obama's father buried at burr oaks cemetery, the graveyard that is now a crime scene. four workers accused of digging up hundreds of graves, dumping remains and reselling the plots. thousands of worried families want to know if their loved ones were in those graves. frazier robinson, the third,

mrs. obama's father. we will find out his grave has been touched. thanks very much. they are about to resume over at the senate judiciary committee office building. they are about to continue the questions and answers of sonya sotomayor to become the next justice of the united states supreme court. folks are back in that room. we see some of the family members of sonya sotomayor there as well including her mom. she has been sitting there as a proud mother from the very, very start along with her brother, who is a physician in syracuse, new york. several other family members, god children and others. a lot of her friends are there as well. they, obviously, are very, very supportive. the chairman of the committee,

patrick lahey, will be hitting that gavel very soon. the questioning will resume with charles rasly, the republican senator from iowa. dana bash is in the hearing room. they have had a nice lunch and now they are getting ready to go back to work. >> reporter: chuck grassley, the republican center, he will be the next up. yesterday, he was very focused on president obama, on the idea that he had said that he wanted to nominate somebody who has empathy and how troubled he was by that. i think sonya sotomayor is walking in after having her own lunch break and getting ready to face chuck grassley and the other senators very shortly. senator grassley is going to be interesting because of that and because of the fact that he is potentially one of the republicans that the democrats think they might be able to pull over to their side to vote for her, first of all, because he has a his stoi of, sort of

voting both ways and politically because he is from the very blue state of iowa. his tone and tenor will be very interesting to listen to. the rest of the republicans, particularly on this issue we have been talking about, about whether or not she will use her experience, as she has said before, o are at least suggested before, in terms of how she approaches issues from the bench. here, she made what republicans are calling a confirmation conversion. when she gets questioning from not just republicans like chuck grassley by also lindsey graham, another republican who might go her way, i don't think it is over. >> on that sensitiveish yoo you of being a wise latino women and she would hope that wise latino women might be able to make better decisions than white men. she backed away from that, clearly, earlier today. >> i also, as i explained, was using a rhetorical that fell

flat. i knew that justice o'connor couldn't have men. that is, judges reach different conclusions, legal conclusions, that one of them wasn't wise. that couldn't have been her meaning, because reasonable judges disagree. >> she also went on to say that i do not believe that any ethnic or racial or gender group has an advantage in sound judgment. i do believe that every person has an equal opportunity to be a good and wise judge regardless of their background or life experiences. john king, is that going to be enough to reassure, for get about the democrats, because we think all of them are going to vote for her, some of those republicans like lindsey graham and we will be hearing his questioning coming up or orrin hatch or chuck grassley. >> the first rule of medicine, do no harm. she has done no harm to the biggest chung of democrats. there is no reason to believe

she is in any trouble. the key answer that, retreating a bit on that. is it enough to get a lindsey graham and a chuck grassley and an orrin hatch to say, we will support you? if she can get three or four republicans, she will have overwhelming support. it will be interesting to watch when we come back from this break. both sides huddle and say, what do we want to do differently? >> here is patrick lahey. >> judge, i once saw a television interview that said, if i could do anything i have to do in life -- i said, if i ever have to work for a living, i want to be a photographer. two minutes after the interview, the phone ranks, my mom was still alive, she called and said, don't you ever say that, they will think you don't work?

actually i don't. i recognize you are doing all the work and i appreciate how well you are doing it. turn next to senator grassley and then after senator grassley, to senator pine. >> welcome, once again, judge, i hope you had a good break and appreciate very much the opportunity to ask you some questions. i would like to start off my round with some questions about your understanding of individual property rights and how they are protected by the constitution let see say as i observe property rights around the world, there is a big difference between developing nations and other nations. it has to do with the advancement of societies. i believe all americans care about their right. they want to protect their homes and anything they own from

unlawful taking by government. this is a right that is important for agriculture interest, as you know, besides being a senator, i come from an agricultural state in iowa and am a farmer as well. i am sure that ordinary americans besides the economic interests that might be involved are all very well concerned about where you stand on property rights. so some of these issues have been discussed. i want to go into a little more depth of kilo, as an example. could you explain what your understanding is of the state of the fifth amendment taking jurisprudence after the supreme court decision in kilo. senator brown said when chief justice roberts was before this committee. quote, isn't it now the case that it is much easier for one man's home to become another man's castle?

your general understanding of the takeings clause? >> good afternoon, senator grassley. it is wonderful to see you again. >> thank you. >> i share your view of the importance of property rights under the constitution. as you know, ways a commercial lit gat litigate or that represented national and international companies. it wasn't the case that was a difference between developed and underdeveloped countries. many of my clients from developed countries chose in part to invest in the united states because of the respect that our constitution pays to property rights in its various positions and amendments. with respect to the kelo

question, the issue in kelo, as i understand it, is whether or not a state who had determined that there was a public purpose to the takeings under the takings cause of the constitution that requires the payment of just compensation when something is condemned for use by the government, whether the takings clause permitted the state once its made a proper determination of public purpose and use, according to the law, whether the state could then have a private developer do that public act, in essence, could they contract with a private developer to effect the public

purpose? so the holding as i understood it in kelo, was a question addressed to that issue. with respect to the importance of property rights and the process that the state must use, i just point out to you that in another case involving that issue that came before me in a particular series of cases that i had involving a village in new york, that i ruled in favor of the property rights, the property owner's rights to challenge the process the state had followed in his case and to hold that the state had not given him adequate notice of their intent to use the property -- well, not adequate notice not to use the property but to be more precise.

they hadn't given him adequate opportunity to express his objection to the public taking in that case. >> i zero in on two words in the kelo case. the constitution uses the word public use. where as, the kelo case talked about taking private property for public purpose. in your opinion, is public use and public purpose the same thing? >> well, as i understood, the supreme court's key significance in kelo, it was looking at the court's precedence over time and determining that its precedence had suggested that the two informed each other, that public purpose in terms of developing and area that would have a public improvement and use, that the two would inform each other.

>> do you believe the supreme overstepped their authorities when they went beyond the constitution, to the word of purpose? i think everybody believes that kelo was an expansion of previous president there. >> i know that there are many litigants who have expressed that view and, in fact, there has been many state legislators that have passed state legislation, not permitting state governments to take in the weighs that the supreme court approved of in kelo. the question of whether my understanding of the court's

understand. i have to accept because it is precedent. i can't comment further than to say that i understand the questions and i understand what state legislatures have done and would have to await another situation or the court would to apply the holding in that case. >> then, i think that answers my next question but it was going to be to ask you whether you think the kelo improperly undermines the constitutionally protected private property rights. i presume you are saying you believe that's what the court said and it doesn't undermine property rights? >> i can only talk about what the court said in the context of that particular case. it is the court's holding. so it is entitled to that.

the extent of that has to await the next step, the next cases. >> well, then, maybe it would be fair for me to ask you what is your understanding of the constitutional limitations on any government enhit taking land for public purpose? >> well, that was the subject of much discussion in the kelo case, among the justices. with certain justices in the dissent, high poth sizing that there were limits. as i've indicated to you, opining on a hypothetical is very, very difficult for a judge to do. as a potential justice on the supreme court but more importantly as a second circuit judge still sitting, i can't

engage in a question that involves hypotheses. >> let me ask you a couple obvious, then. does the constitution allow for takings without any compensation? >> well, the constitution provides that when the government takes, it has to pay compensation. as you know, the question of what constitutes an actual taking is a very complex one. there is a difference between taking a home and regulation that may or may not constitute a taking. i am not at all trying to not answer your question, senator. >> let me ask you another question maybe you can answer. would you strike down a takings that provided no compensation at all? >> well, if i explain if the

taking violates the constitution, i would be required to strike it down. >> let me move on to the didden case versus the village of port chester. it raised serious concerns about whether you understand the protection provided by the constitution. in in case, mr. didden alleged that his local village government violated his fifth amendment rights when it took his property to build a national chain drugstore. another developer, mr. didden was told he could give the developer $800,000 or a 50% interest in his pharmacy project. if mr. didden did not accept either condition, the government would simply take his property. two days after mr. didden refused to comply with these demands, the government began proceeding to take his land. the district court denied mr. didden his day in court.

your panel affirmed that decision in a five-paragraph opinion. why did you deny mr. didden in court? how can these facts, in essence, allegations of extortion, at least not warrant the opportunity to call witnesses to see if mr. didden was telling an accurate story? >> the didden case presented a narrow issue that the court -- >> officer, remove that man immediately. we will stand in order. we will stand in order. officers will remove that man. they did. and they did.

again, in both senate sessions, i said to all rank and members this is a hearing of the united states senate. the judge deserves respect. senators asking questions deserve respect. i will order the removal of anyone who disrupts it, whether they are supportive of the nominee or opposed to the nominee. whether they are supportive of a position i take or opposed to it. we will have respect that should be accorded to the nominee and the united states senate. >> thank you, mr. chairman. i think you have handled this well throughout and i support you 100%. >> thank you. senator grassley, we did stop the clock. we did not take from your time. >> thank you. people always say i have the ability to turn people on.

maybe you could start over again with your sentence, please. >> i hope i remember where we were. senator, the right of property owners to have their day in court is a very important one but there is a coral larry to the right to have your day in court, which is that you have to bring it to court in a timely manner, because people who are relying on your assertion of rights should know when you are going to make them. there is a doctrine called the statute of limitations that says if a party knows or has reason to know of their injury, then that party has to come in to cot and raise their argument within that statute that says the

limits of the action. in the didd -- >> oh, no, no. please. i interrupted you. i shouldn't have interrupted you. >> in the didden case, the question was whether mr. didden knew that the state was intending to take his property and for what the state claims was a public use and that it had plans to have a private developer take his property and the private developer develop the land. there was a full hearing by the village on this question of whether there was a public use of the land. mr. didden didn't claim the

action before the courts that he didn't have notice of that hearing. he did not raise a challenge in that hearing to the public taking. he didn't raise a challenge to the state's intent to have a private developer develop the land. now, in that case, the developer was developing, not just mr. diden's property, it was one piece of property in a larger development project. that larger development project had been based on the village's conclusion from its very lengthy hearings in accordance with new york law that the area was blighted and that the area needed economic development. so to that issue came the issue before the court in the sense of

had mr. didden knowing that he could be injured by the state's finding of public use and the state's decision to let a private developer develop this land, did he bring his lawsuit in a timely manner? the court below and our court ruled on that basis that he hadn't. he had reason to know about injury that could come to him. >> is ins mr. didden's claim was based on conduct of the developer, how could he ever file a successful claim under the standard that you just mentioned? >> mr. didden alleged in his complaint that the private developer had extorted him. extortion under the law is

defined as an unlawful demand for money. on this one piece of property, within a larger development that the private developer was actively engaged in doing what he had contracted with the state to do to revive the economic base by making investments in it, the private developer knew that mr. didden had his claim. the private developer had his agreement with the state and so he was doing -- at least this was the private developer's argument, what he was entitled to do, which is to say, we disagree. i'm claiming that i have a right under contract. you are claiming that you have a right under the takings clause.

let's settle this. i am going to lose x amount of money. so you pay me back for me not to do what i'm entitled to do under the law. that, however -- those were the claims of the parties in the action. in the end, the decision of the court was if you believe that the takings of your property were not proper under the public use under the takings clause and you knew that the state had entered a contract with this private developer, then you had knowledge that you could be injured and you should have come to court earlier. >> why was the situation in didden not the kind that prohibited pretex yurl taking articulated in kelo? how was this not some sort of form of extortion? if there wasn't a pretext in the

didden case where the developer says, give me the money personally or we will take your land, then what is a pretext? >> well, as i have described the case -- >> yes, i under -- >> the question comes up if in the context of, what did mr. didden know, did he have enough to know he could be injured in was there na pro public use to h the property could apply and what rights did the private developer have with the state? the extortion question came up in a legal context surrounding the relative rights of the parties so, as i said, extortion is a term, a legal term, which is, is someone demanding money with no lawful claim to it? i am simplifying. there are different definitions for extortion that apply to different situations. in the context of this case, that's the simplest deskrigs of

the case, i believe. >> the second circuit panel in didden took over a year. we are going to take a quick break and presume our coverage. they are heavily into a discussion about property rights. this is arn an important issue in an agricultural state like iowa. that the government would take over some of their land without adequate compensation. this is a big issue for a lot of folks out there. charles grassley, the republican senator from iowa, continuing his questioning. remember, cnn.com is where you can see all of this hearing streamed live uninterrupted. our coverage will continue right after this. your mom! never mind, they've been singing our songs since we first showed up with our pirate hats on! if you're not into fake sword fights pointy slippers and green wool tights take a tip from a knight who knows free credit report dot com, let's go! vo: offer applies with enrollment in triple advantage.

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republican senator charles grassley and supreme court justice nominee, sonya sotomayor, they are engaged in a serious, complicated discussion on property rights. almost all the questions that chuck grassley has asked involves this very, very important issue, very significant to a lot of conservatives out there. alex, why is this so important to republicans and conservatives? the whole issue of the federal government and property rights? >> because republicans, conservatives see property rights as the basis of a free economy. that's how you measure your wealth. if the government -- it's a question about government power. if the government can come in and take your property, not for public use, as the constitution requires, but take it for private use, then that's too much power for the hands of government. and one of these cases, the property was taken for a cvs, to build a cvs, i think.

is that a legitimate public use. these are the questions republicans are concerned about. the judge doesn't defend the property rights very strong. >> if they take away some land and compensation the owner not necessarily for the public good but to build some sort of retail operation, that would generate more tax revenue for the local community, is that in the public good? >> well, i think there is a real question as to a difference as to whether that is in the public view and it seems like the supreme court at least laid the foundation for locality to say yes. if the whole idea is to bring and raise taxes and provide revenues for the locality, i would say that i am not fully familiar with taking but i think it is a important issue.

she handled the question properly. >> this is called the didden case that involving some very, very sensitive issues. john, walk us through, together with jeff, what happens and why this is so important? >> i will pull up the case for you here in our case file and we will ask jeff to go through it. the topic, eminent domain, the taking of proi voot properivate public use. they challenged the court for taking their property designated as redevelopment. they said they were going to take the land and redevelop it. judge sotomayor was part of the panel. they sided with the government saying they did have the right. citing a controversial 2005 supreme court case. judge sotomayor called it upheld.

>> as judge sotomayor was saying in her exchange with senator grassley, they decided this case, because the property owners waited too long to bring their case. the case was thrown out on so-called statute of limitations ground. what she was trying to say is we didn't address the issue of whether this ways legitimate for the village to take this property. we were dealing with the procedural issue of statute of limitations. they were having a bit of back and forth about whether this case was really about takings or it was really statute of limitations? >> that is a key point. as alex was noting, senator grassley's point reflects conservative concerns that government takes from private landowners an the role of the court should be in his view, conservati conservative view, to stop that. the justices usually know when they have a hot put button issues coming up. there was a case called kelo versus new london. this case snuck up on the

justices. they didn't realize what they were stepping into when they allowed the city of new haven, to take sue zet kelo's land and give to a private developer for an urban renewal project. they have met a firestorm of criticism, a 5-4 been. justice o'connor wrote a dissenting opinion. she warned her colleague, you don't know what you are getting into. justice o'connor had very as stut political instincts. that's what senator grassley is asking about right now. >> from the west where these issues are paramount. as we go back, it is a somewhat archaeic piece of the law. it is important she satisfy senator grassley. he is one that they believe could vote for this democratic nominee. >> they would love to get him on board, if possible. we will see what happens. these property rights cases are

politically fraught with a lot of danger. gloria borger, you have studied this? >> the interesting thing is that she wouldn't take the bait. he kept pushing her on whether the supreme court had, in fact, overstepped in the kelo case, that jeff toobin was just talking about. given the fact that she is about to go sit on the supreme court, potentially, if she gets confirmed, she wouldn't say whether the supreme court had overstepped. that is something we are going to hear time and time and time again in these hearings. just when you want her to tell us just how she feels about something that she has not drebl directly ruled on. >> three yards and a cloud of dust. she keeps running the ball up the middle and taking no risk.

>> she has been told during these three weeks she has been preparing, say as little on the substance as you can. >> she is the perfect nominee so far. as you sit up there, you punt. you don't say anything. you keep returning to her refrain, which is i followed case law or this was a very little, narrow ruling. we saw when she was talking about bush v gore, a huge punt. i can't imagine a nominee sitting up there criticizing a supreme court decision. >> she is a perfect nominee for the obama administration. is it perfect for the american people she is going to go on there for 30 years having not answered questions about what her judicial philosophy is? roberts did the same thing.

olli t olito did the same thing. >> they are all refuse tog do because of court. he spelled out all of his positions and you know what happened. >> that's right but that was, i think, the process working as it should, because the senate had a chance to make a judgment on the merits. what are they afraid of? >> not getting confirmed. >> that's not my concern. my concern is for the good of the country. >> here is another question. he said the biggest mistake he made in his hearings was that he actually told the truth and answered the questions. >> the other question i might ask, is she the perfect nominee for democratic senators running for re-election in swing states coming up. she may not be. we were talking about lblanche lincoln, a moderate conservative democrat. if i were her, i would be thinking what other republicans

are going to run against me. she spent more and put us deeper into the debt than any senator ever. that wasn't enough. now, she supports a democratic nominee that opposes the death penalty, that thinks felons ought to have the right to vote and supports taking away private property, who took jobs from firemen who earned them, because she supported reverse discrimination. those are the kind of ads democrats would be think being. >> if it were a presidential race, i would agree with you. senate races are really about so many things, did you at home, how big of an incumbent are you? blanche lincoln is in trouble to begin with. i think that supreme court votes just don't figure there. >> hold your thoughts for a moment. we are going to continue our covera coverage. russ feingold, getting ready to ask some questions as well.

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judge sonya sotomayor is now answering a question on whether or not there were any laws enacted after 9/11 that historians down the road might live to regret. >> i can understand some hess tants but the truth is that courts are already dealing with these very issues. the supreme court itself has struck down a number of post 9/11 policies and you sat on a panel that struck down bun aspect of the national security letter that was expanded by the

p patriot act. what is your general understanding of that line of cases? >> that the court is doing its task as judges, it is looking in each of those cases as what the actions are of either the military and what congress has done or not done and applied constitutional review to those actions. >> is it fair to say given that line of cases that we can say that at least with regard to the supreme court, it believes mistakes were made with regard to the post 9/11 policies? in each of those cases, there was an overturning of the decision either by the congress or the executives? >> i smiled, only because that's not the way the judges looked at that issue. we don't see sidecide whether ms

were made. we look at whether action was consistent with constitutional limitations or statutory limitations. >> in each of those cases there was a problem with either a constitutional violation or a problem with a congressional action, right? >> yes. >> that's fine. as i'm sure you are aware, many of us on the committee discussed at length with the prior supreme court nominees the framework for evaluating the scope of executive power, the national security context. you already discussed this with at some length with senator feinstein in the young stoun case. i and others are deeply concerned about the broad assertion of executive that's been made in recent years and interpretation that's been used to authorize the violation of clear statutory prohibition from the foreign intelligence act to the anti-torture statute. you discussed the third category, the lowest ebb category in the youngtown

framework. that's where justice jackson said the president's power is at its lowest ebb because congress has specifically prohibited some action. i take the point of okay full psychological lars that argue that hypothetically speaking, congress could pass a law that is plainly unconstitutional, if congress passed a law that said that somebody other than the president would be a commander and chief of a particular armed conflict and not subject to presidential direction, presumably, that would be out of bounds. setting aside such abstract hypotheticals, as far as i am aware, and i'm pretty sure this is accurate, supreme court has never relied on the youngstown framework to say that that o could violate such a prohibition. that your understanding of the supreme court precedent in this area? >> i haven't had cases or a sufficient number of cases in

this area. to say that i can remember every supreme court decision on a question related to this project. in the youngstown case, the court held that the president had not acted within his powers in seizing the steel mills and the particular situation existing before him at the time. the question or the framework doesn't change, which is, each situation would have to be looked at individually, because he can't determine ahead of time with hypotheticals what a potential constitutional conclusion will be. i may have said in an earlier question, academic discussion is just that, it's presenting the extremes of every issue and

attempting to debate on that extreme of the legal question, how should the judge rule. >> given your tremendous knowledge of the law and your preparation, i am sure you would have run into in example that this would happen. i am unaware of an ex many amany where something was justified under the president's power in the lowest ebb, i would love to know about it. that is a factual question about what the history of the case law is. >> i can only accept your assumption as i said. i have not had sufficient cases to have looked at what i know in light of that particular question. >> in august, 2002, the department of justice issued two memoranda considering the legal

limits on interrogation of terrorism detainees, one of these contained a detailed criminal analysis of criminal law prohibiting torture and concluded that enforcement of the anti-torture statute would be a unconstitutional in principal nlgment. that did not site to the youngstown case. we just learned on friday that in november, 2001 a memo also did not site youngstown. i don't think you would have to be familiar with those memos to answer my question. does it strike you as odd that a complex legal analysis of the anti-torture statute or the fisa act that considers whether the president could violate those statutes would not even mention the youngstown case? >> i have never been an adviser to a president. that's not a function i have served.

so i don't want to comment on what was done or not done by those advisers in that case. it is likely that some question and i know some are pending before the court in one existing case. so i can't comment. all i can comment is whether that is surprising or not. i can only tell you that be surprised if a court didn't consider the youngstown framework in a decision involving this question that cases framework is how these issues are generally approached. >> i appreciate that answer. let me go to a topic that senator lahey and hess have discussed with you, the second amendment. i believe the second amendment grants citizens an individual right to own firearms. i was elated when the court

ruled last year basically what i think had been a mistake all along to not recognize it as an individual right. the question of whether the second amendment rights are incorporated in the 14th amendments to due process of law and applicable to the state as you pointed out was not decided in heller. a pru kim court decision in 1886 upheld it applied only to the second amendment. it is unremarkable as a circuit court judge you would follow applicable than apply your own. that would be an unfair criticism of a case i think you needed to rule that way given the state of the law. let me move on from that. many of my constituents would like to know more about how you would make such a die significance as a member of the highest court. first of all, am i right in you are confirmed at the court grants certificate in the maloney case u would have to

recuse yourself from its consideration? >> yes. my own judgment is that it would seem odd indeed if any justice would sit in review of a decision that they authored. i would think that the judicial code of ethics that governs recusals would suggest and command that would be inappropriate. >> what about if one of the other pending appeals comes to the court, suches athe seventh circuit decision, in nra versus chicago, which took the same decision as yours in maloney, would you recuse yourself from that one as well? >> there are many cases in which a justice, i understand, has decided cases as a circuit court judge that are not the subject of review. that raise issues that the supreme court looks at later. what i would do in this situation, i would look at the practices of the justices to

determine whether or not that would counsel to recuse myself. i would just know that many legal issues, once they come before the court, present a different series of questions than the one that one addresses in the circuit court. >> we are going to break away briefly from this hearing because we want to seas what's goi going on. our coverage will continue. russ feingold continuing his question. jon kyl, the republican senator from arizona on deck. he will be up next. much more coming up after this. . gecko vo: takes lots of sweat to become that big. gecko vo: 'course, geckos don't literally sweat... it's just not our thing... gecko vo: ...but i do work hard, mind you. gecko vo: first rule of "hard work equals success." gecko vo: that's why geico is consistently

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welcome back. the supreme court nominee, sonya sotomayor is answering questions. russ feingold, from wisconsin, has been asking her about national security issues, specifically in the aftermath of 9/11, whether any laws that were enacted went too war. russ feingold voted against the patriot act, which has become very controversial in the years that have followed. she didn't want to answer these questions, even though she got a little personal and pointed out she happens to live right near ground zero in lower manhattan. >> she talked about not being anyone to drive and get around and a huge tragedy. she said historians will drive down the road and we are too close, sessentially, to 9/11.

to your point about russ feingold, he is among the most liberal, to the left on these issues, voted against the patriot act. a sharp critic of the iraq war and what he believes are abuses in overstepping in executive power by the bush administration in a whole host of areas, whether it is gitmo or the warrantless wiretapping program. he was trying to get her to express herself. she was very careful. as you know, there are a handful of cases already in the pipeline, some have been decided by the court. some are awaiting the next court. there air whole host of others lower in the court over the next five or ten years, this will be a giant issue. >> i will play that clip of what she said just a few moments ago. >> i was in new york. my home is very close to the world trade center. i spent days not being able to drive a car into my neighborhood, because my neighborhood was used as this staging area for emergency

trucks. >> she got personal and gave a little personal anecdote of what happened in the immediate aftermath. on the substance of these issues, she wasn't giving us any real hint. it is significant. there are going to be a whole bunch of cases involving national security, interrogation, notification of congress on sensitive, classified, covert operations presumably that could work their way up to the united states supreme court. >> right, along with other cases about property rights and any number of things that she hasn't wanted to talk about, saying, look, this could come in to the supreme court. makes you wonder how they can fill three days with this conversation. nonetheless, this is something that as we discussed before, is the way certainly any white house now wants it, having learned from history, that the more you are out there, the more of a punching bag and a target you become. she is not willing to play on these questions. >> she did go out on a limb and

pay omage to the constitution. she did. >> that's usually a safe bet. >> it's a giveaway. >> she even liked the amendment. >> she did. she said it has protected us and inspired our survival. this is, of course, after she was asked a question about 9/11 and called it a timeless document to which, of course, she will adhere. >> the obvious danger is getting dragged to the left by republicans that are questioning you trying to get you to say something in opportune. senator feingold said, don't you agree that the patriot act went a little too far. she was well-briefed enough and prepared enough not to let that happen. >> and wouldn't bite on the word wrong. don't you think this was a mistake. >> "the new york times" in its editorial, just like jeff toobin

yesterday said, you know what, they may want to play it safe. the american public deserve to know where these nominees stand on these sensitive issues. they were pretty blenunt in "th new york times" editorial page saying, don't worry about being confirmed or not confirmed. worry about the american people first. >> i think as an academic matter i might agree with you, that it would be better to know what a justice -- what their judicial philosophy is. it is not an academic matter. the fact is after some bruising confirmation battles, it's the better chorus to be clearer about what you have done in the past and reserve judgment on the things that might come before you and we have some sense of what she is like based on her record and that's what the senators will vote on. >> remember, this is a lifetime appointment. she is going to be, assuming she is healthy, on the seay supreme court making decisions that

effect millions and millions of americans for the next 30, maybe even longer, 30 years, long after president obama is finished at the white house. she presumably is going to be on the united states supreme court. doesn't have have an obligation to come clean and tell us what she really thinks? >> i might have counseled something different if i were in a position to counsel. for the reasons we have discussed. i think in this kind of situation, the white house has instructed and prepared her carefully to make sure that this confirmation hearing is no drama. we can quickly go back to health care and other things. >> the record, her record, is not enough here. her record in getting to this point was always somewhat constrained by the possibility that one day she would get to the supreme court. when she gets to the supreme court, there will be nothing to stop her. that's why, really getting to what she thinks, as jeffrey says, what she believes in, is really important. >> someday when we reach paradise, perhaps the

republicans and the democrats will stop beeating each other t a pulp. it is how the system works. she is not going to do it. >> they thought justice suitor was going to be one kind of a justice, so did the president at the time. and he turned out to be another. so, you know, you can get surprises. you can get justices who change when they are on the bench. you can't get -- >> senator schumer, who wii we will be hearing from shortly, gave an interesting speech to a liberal group and said, i have had it with these confirmation hearings. all i am going to look at is the record. now, the shoe is on the other foot. >> one of them was the aftermath of robert bork. that became a verb, as we all remember. our coverage will continue after this.