it would provide energy. it's probably caffeine without sugar. sugar provides an immediate boost but then you get the crash. take away the sugar, you take away the crash. >> it seems to work good. i actually met the fellow that bottles this stuff at mardi gras. he seemed to keep going and going and going. sanjay, thanks for being with us this morning. really appreciate your report. i can't tell you that this stuff really works. kept me up pretty much today. >> you're talking kind of fast, john. >> little does he know we secretly replaced it with a placebo and it was just water! >> apparently they have downers of this stuff now, like jeff son airplane white rabbit. thanks, sanjay. read did sanjay gupta's complete report on the 5-hour energy drink on our blog. you can continue the conversation and all of today's top stories. >> you want to keep going? you're on a roll! thanks for being with us. see you back here tomorrow. right now here's "cnn newsroom" with heidi collins. good morning, everybody. i'm heidi collins. it is july 15th and we have a whole lot going on in the "cnn

newsroom" to tell you about this morning. first off, a passenger plane crashes in iran. all on board are believed dead. we'll have the very latest for you. and live confirmation hearings for judge sonia sotomayor. our brianna keilar is live on capitol hill right in the middle of it all to tell us about what we can expect to hear today. also look at this video. two tornadoes ripped through minnesota. we'll tell you where and where that severe weather bull's-eye is headed today. today we begin with breaking news out of iran. a caspian airlines jet went down 90 miles northwest of the capital of tehran. iranian television there says 168 people are dead. an area commander says the plane just disintegrated. there are no known survivors. the russian-made plane was flying from tehran to armenia. it is unknown at this time what may have caused that crash.

it is day three today for supreme court nominee judge sonia sotomayor. she'll face more direct questions from the senate judiciary committee this morning. yesterday she was quizzed on hot-button issues like roe versus wade and on her word choices. cnn's congressional correspondent brianna keilar joins us now live from capitol hill this morning. brianna, what are we going to see today? >> well, heidi, we're going to be seeing some more questions. you'll probably recall on monday, senator lindsey graham, a republican critic of sonia sotomayor, he says he may vote for her. he says unless she has a "healthdown," she will be confirmed. a meltdown. so far no meltdown. she seems really within the lines with her deliberate answers to these senators' questions. as sonia sotomayor took the hot seat prepared to answer republican questions about her controversial off-the-bench remarks, democrats launched a preemptive strike. >> here's your chance.

you tell us what's going on here, judge. >> reporter: judiciary chairman patrick leahy gave her a friendly audience as she explained her comment about a wise latina reaching a better conclusion than a white male. she says it was a misunderstanding, that she was trying to inspire hispanic students. >> i want to state up front, unequivocally, and without doubt, i do not believe that any ethnic racial or gender group has an advantage in sound judging. >> reporter: it wasn't enough for republican critics who pressed sotomayor on whether she could be impartial. >> i just am very concerned that what you're saying today is quite inconsistent with your statement that you willingly accept that your sympathies, opinions and prejudices may influence your decision making. >> as i've indicated, my record shows that at no point or time have i ever presented my personal views or sympathies to

influence an outcome of a case. >> reporter: tlou hours and hours of testimony, sotomayor scribbled notes and cass careful on her answers. on roe v. wade, sotomayor says she respects those past decisions. >> all precedents of the supreme court i consider settled law. >> reporter: asked about president obama's past comments that judges must at times use their hearts in making decisions, a description republicans decry as inappropriate, sotomayor distanced herself from the man who nominated her. >> i don't -- wouldn't approach the issue of judging in the way the president does. the job of a judge is to apply the law, and so it's not the heart that compels conclusions in cases, it's the law. >> reporter: sonia sotomayor will spend hours more on the hot seat today. eight senators still have yet to

ask her their first questions, heidi. >> today, brianna, is going to be really interesting, because we're going to be hearing from a brand-new senator. he's like number 100 out of 100. he's been senator for about five minutes from minnesota. yeah? >> yeah. al franken, former star of saturday night live. we will be seeing him last because he is the most junior member of the senate judiciary committee. this is going to be really interesting, heidi. we've heard him speak, but we've really only seen him in scripted situations as a senator here in the last week and a half. this is going to be unscripted and a lot of eyes on him. we're also going to keep an eye on senator john cornyn, republican from texas. on one hand he is a senator from a state that has a lot of hispanic voters. he's obviously going to be asking some tough questions of sonia sotomayor, as well he wears a different hat. he's the head of the republican senatorial campaign committee. as you know, confirmation hearings are really

opportunities for fund-raising and scoring political points. he's wearing opposing hats here, heidi. >> understood. we'll be watching closely. live from capitol hill, brianna keilar this morning. a house democratic plan to overhaul health care is now heading to three committees for debate. the congressional budget office submits the plan would cost $1 trillion and cover 97% of all americans by 2015. here's more on the plan just released yesterday. it includes government-funded option that requires both individuals and employers to participate and attaches the top 1.2% of income earners in order to cover those costs. republicans are opposed to the tax surcharges and the government option and vow they will fight bill. a new audio message from al qaeda's number it was two man, warning people in pakistan to support militants or be punished by god. cnn's stan grant joins us live from islamabad with more on this message. stan, what do you know?

>> reporter: heidi, the message coming from ayman al zawahiri, number two in al qaeda to osama bin laden. this is a very consistent message. we've heard this before from both al qaeda and the taliban to get people to support their fight against the u.s. the timing here is interesting. it comes as the u.s. increases its troop presence across the border in afghanistan and as the pakistan military continues its offensive against taliban militants in the northwest part of the country. zawahiri saying the pakistani politicians and military leaders are traitors to the afghanistan and pakistan people. he says they're trying to stay on a payroll, that a reference to the billions of dollars that america has poured into pakistan to assist its fight against the insurgents. it comes as people in pakistan continue to move back to their houses after fleeing the fighting in recent months. the pakistan government saying they have secured the northwest part of the country and it is safe to go back, but fighting is

continuing. just in the past 24 hours, 23 militants killed, another 14 arrested. still very insecure in that part of the country. >> absolutely. stan, does it seem to be any sort of support for this type of message in pakistan? >> reporter: he's playing to what has been the past been quite a strong anti-american sentiment. both here in pakistan and in afghanistan, there is concern about american involvement here, that america is too involved in trying to shape pakistan's destiny. but it also comes as people are tiring of the taliban. there has been a shift in mood here, more support for the government, more support for the military. i've just spent time up in the northwest frontier province where fighting is going on speaking to people on the ground. they tell me the taliban is finished, they do not support the taliban, they support the efforts to crush them. that's why i think we're seeing this message right now, heidi. >> very good, we sure do appreciate that. live for us this morning, stan

grant out of islamabad. thanks, stan. i want to head over to the severe weather center. jacqui jeras is standing by. looking at some of the video we saw out of min pin. these tornadoes there. >> yeah. have you seen this yet? this is in the spicer area, about 80 miles west of minneapolis and st. paul. a tornado ripped through in the green lake area. you see it doing some damage to a home. this next picture that will come up here you can see the house or maybe a garage that's just been leveled. you just see the boat that's left standing here. no sorts of injuries though. that's a little bit of good news out of all of that. this system now is on its way moving eastward. we'll watch states like michigan, down into indiana, into kentucky and missouri for the threat of severe weather. it is a slight risk area today, but you can always get an isolated tornado as a possibility within that area. the storms that we're dealing with have been causing some delays at the airport. chicago had storms through early this morning but we're still kind of making up for that.

you see the ground stop. laguardia also. and houston, that's intercontinental, i believe, with delays at 30 minutes. the temperatures -- yeah, i know. they're still hot. >> i'm afraid to look. >> 104 in dallas. but the cooldown is coming, heidi. this weekend we'll be looking at 90s. >> oh, yay! that's so cool. >> i know. well, it's better than triple digits anyway. >> it is. thank you. it is a killing that has really affected one community and touched the nation as well. we'll have the very latest on the investigation of a florida couple's death. plus, just in now -- reaction from the woman's adult daughter.

authorities now have seven suspects in custody in the killing of a florida couple known for taking in special needs children. but the search for suspects is still not over. cnn's ed lavendera joins us now live from pensacola, florida with the very latest on this. just this morning, we are hearing from family members now and how they've been affected by all of this. >> reporter: right. the woman who is now essentially the matriarch, as she has called

herself, of this family, the oldest daughter of the billings answered a few questions from reporters early this morning. she said that a trust had been set up for the children, the adopted children, that the billings couple had been taking care of, and that they are concerned for the children's safety at this point. that's why they are being kept in a private location. but they assure everybody that family members will continue taking care of these children, doing the best they can to make sure that those children remain okay, that they are asking a lot of questions about what has happened and where their mother and father are at this point. but right now they say the important thing is to try to get these children through it. they're planning the funerals which will start today. but the oldest daughter of the billings children saying it is important for her to channel her mother at this point. >> i feel like my mother's working through me. everything that i do i can feel her there with me and if i have

to be a matriarch, then that's what i'm prepared to do. whatever i need to do to keep our family together and keep these children happy and in their every day lives, i'm prepared to do it. >> reporter: heidi, moving on to the investigation aspect of this story, at this point authorities have now, as we reported, arrested seven people in connection but authorities here also say their work isn't done yet. they say there's an eighth person they are looking for. that arrest could happen some time today. we're not exactly sure at this point. it is still not quite done. they've talked extensively how they think the primary motive for these killings was robbery but they still have left that window open that there still might be something more behind all of this. there's still a lot of questions that remain unanswered at this point. >> understood. sure do imagine people are really going to want to know the outcome of all of this.

we appreciate it. live for us from pensacola, florida this morning, ed lavendera. they are beginning to fuel up the space shuttle "endeavour" at this hour. nasa is hoping the weather cooperates for today's planned launch. weather and a hydrogen leak forced five launch delays since last month. "endeavour" is carrying the last part of a large laboratory to the international space station. liftoff is scheduled for 6:03 p.m. eastern. and if it happens, we will bring it to you live right here on cnn. check this out. a shock for swimmers in long island. here it is. it is a 26-foot basking shark. scientists think it beached itself because it was sick. basking sharks are common off the northeast coast. if you've never heard of them before, they are the second largest fish in the ocean just behind the whale shark. this one weighed about 5,000 pounds. no real reason to be afraid of the giant fish.

it only eats planktin and other small sea creatures. sewn o ya socieonia sotomay more today. :::::::::#

quickly we want to give you a live look as we are getting it here in the "cnn newsroom." obviously we are preparing for another day of the confirmation hearing, day three for judge sonia sotomayor. hoping to become supreme court justice. taking the place of david souter. our understanding from our capitol hill correspondentbyian that kieler, john cornyn going to be asking some interesting questions, and al franken, the brand-new senator out of minnesota will also have his turn at the microphone. today's hearing has been going on for a couple of days. we want to get the latest from our national political correspondent jessica yellin. >> reporter: today new senator al franken will be in the national spotlight. he is the most junior member of the senate judiciary committee and will get a chance to grill judge sonia sotomayor.

he's already making it clear to everyone that he takes this job very seriously. like a kid starting school, the senate's newest member was the first to show up for tuesday's judiciary committee hearing and he seems to be making friends. seven days into his term, senator al franken is striking a tone that's somber -- >> i am concerned that americans are facing new barriers to defending their individual rights. >> reporter: -- and exceedingly deferential to committee chairman patrick leahy. >> i have admired your strength and integrity. >> reporter: -- to ranking republican jeff sessions. >> i look forward to working over the years with you and my other republican colleagues. >> reporter: -- and to the committee as a whole. >> i know that i have a lot to learn from each of you. >> reporter: don't hold your breath waiting for a punch line. no jokes here. the former comedian barely smiled. it's the same serious franken we saw during his race for the senate seat. but that voice, it's instantly

recognizable to fans of saturday night live. >> i'm good enough, i'm smart enough, and doggone it, people like me. >> reporter: -- and that's still how visitors to the u.s. capitol think of al franken. i say senator franken, you think -- >> joke. >> i'm strong enough, i'm good enough, and doggone it, people like me. >> reporter: -- but they're flexible saying he can earn their respect. >> yeah. depends on what he does when he's in there. not what he did before but what he's about now. >> reporter: he'll have a chance to show his stuff when he begins questioning sotomayor during the hearing today. over the past few days, senator franken has been spotted stopping capitol police to ask for directions. clearly, he's the new guy on the job. franken has said that he plans to lay low, take some time to learn, and he says, though he's the democrats' 60th vote, he will not rubber-stamp the president's agenda. >> that's our cnn's jessica yellin reporting. i'm heidi collins in the

"cnn newsroom." thanks for joining us, everybody. the beginning of day three of the sonia sotomayor confirmation hearings now just minutes away. wolf blitzer up next.

back. it's day three of the sonia sotomayor confirmation hearings before the senate judiciary committee. yesterday was the first day of actual questioning. the first day on monday there were opening statements by all 19 members of the judiciary committee, followed by her opening statement. yesterday she answered questions for several hours. today the questioning will continue, first up will be john cornyn, the republican senator from texas, followed by some other democrats, tom coburn, the republican from oklahoma. senator patrick leahy, he's

already there. you see the back of his head. they're getting ready to convene this session momentarily, even though the room looks still sort of empty, a lot of folks are still arriving. let's check in with our senior congressional correspondent, dana bash. dan dana, set the scene on what's supposed to be the third and final day that she will appear before this panel before other witnesses are brought in. >> it was supposed to be. i was told this morning that may slip into tomorrow depending how late and long the questioning goes tonight. in terms of the scene behind me, you see the two remaining republicans, john cornyn, the republican of texas, and tom coburn of oklahoma. they're there, ready to go. they certainly have a lot of questions. i talked to several republican sources this morning, wolf, who said that the theme they hope republicans will really hone in on this morning is what they're calling the confirmation conversion, the idea that what they heard from sonia sotomayor all day yesterday talking about the fact that she will follow the law and it is only the law,

that's it, really contradicts, they feel, many of the things she said over years and years, suggesting that race and gender do play a role in the judicial process. in fact, john cornyn, i spoke to an aide to him, he said he'll look at what he called the two sonia sotomayors on a host of issues. for example, in a speech she made to duke university, suggesting that the court of appeals does actually make the law and now she says absolutely not, that is not the way she sees it. i think that is going to be a big focus of republicans, and i think that -- i believe sonia sotomayor's coming in. she is in the room. i just want to give you a little bit of color about her. i spoke to a white house aide who was with her this morning, wolf, who said that they actually don't -- they're not going to shift strategy much, and from their perspective, why should they? they think that she did an exemplary job yesterday, that she really answered the questions and warmed up the room. that was a quote from this aide i spoke to that was with her

this morning. a little more color, warming uch the room, it is something that is going to be important because it is very, very cold in that room. it is like 60 to 65 degrees. people are freezing in that room. that just gives you a sense of what she has to endure, what the senators have to endure not just in terms of the questioning. but the atmosphere and literally the atmosphere of that room. >> she's shaking hand and she's welcoming some of the folks who have come in, clearly this is a moment that she's been rehearsing for, or preparing for. i guess it is fair to say preparing her whole life for to becoming a united states supreme court justice. that's obviously a huge, huge deal. let me tell our viewers that we have the best political team on television here with us. they're going to be with us throughout the day. eight senators are scheduled to ask questions over the course of the next few hours. each of them supposed to have 30 minutes, but some of them are being asked maybe you can go a little bit shorter. there's the chairman, patrick leahy. john king, two republicans and

six democrats, the chairman would like them to not necessarily use all 30 minutes. >> this is the united states senate, wolf. you only need to be here about a week, if you ask a united states senator to give back some time, the answer is likely not. the democrats would like to move at a quicker pace obviously key moments will be the two remaining republicans. they have had time to regroup overnight, as dana just noted. their big thing -- she's been on the bench for 17 years. they spent most of yesterday, republicans did, on two things. one case, the new haven firefighters case where they say why did she -- did her biases, because she is a woman, a latina, weigh in on her and her speeches, as the democrats say that's not proportionate to her record. >> we did hear her say repeatedly, gloria borger, yesterday that despite her own personal views and her own backgrou background, she is going to be guided strictly by the law. >> all she follows is precedent and her life experience she said is important but you leave it at

the door when you judge. you understand the way your life experience might influence you, but that's not how you judge. so it's all about precedent and to the law. >> you saw jeff sessions, the ranking republican, top republican, on the judiciary committee, the republican senator from alabama, going over to welcome her on this, the third day of her appearance before this committee. a lot of substantive issues, jeffrey toobin, did come up in the course of the questioning yesterday. but it was lindsey graham, the republican senator from south carolina, who really honed in on the most sensitive, most controversial issue when he said this -- >> do you understand, ma'am, that if i had said anything like that, and my reasoning was that i'm trying to inspire somebody, they would have had my head? do you understand that? >> i do understand how those

words could be taken that way, particularly if read in isolation. >> well, i don't know how she could take this, lindsey graham said that "i will make a better senator that -- "x" -- because of my experience as a caucasian male, makes me better able to represent the people of south carolina, and my opponent was a minori minority. it would make national news, and it should. >> we'll assess that and a lot more but the chairman have just hit the gavel. let's listen in. >> you're back and your family. judge sotomayor, yesterday you answered questions from 11 senators. frankly, i feel you demonstrated your commitment to be fair and impartial application of law.

you certainly demonstrated your composure and patience and your extensive legal knowledge. today we'll have questioning from the remaining eight members of the committee, and then just to set the schedule, once we have finished that questioning, we will render time to go into the traditional -- something we do every time a supreme court nominee, closed-door session, which is usually not very lengthy. then go back to others. i talked with senator sessions. we will then go to a second round of questions of no more than 20 minutes each. i have talked with a number of senators who have told me they will not use anywhere near that 20 minutes, although every senator has the right to do it. i would hope we might be able to wrap it up. we're going to go to senator cornyn, himself a former member

of the texas supreme court and former attorney general. and senator cornyn, it's yours. >> thank you, mr. chairman. good morning, judge. >> good morning, senator. it's good to see you again. >> good to see you. i recall when we met in my office, you told me how much you enjoy the back-and-forth that lawyers and judges do. and i appreciate the good humor and attitude that you've brought to this and i very much appreciate your willingness to serve on the highest court in the land. i'm afraid that sometimes in the past these hearings have gotten so downright nasty and contentious that some people are dissuaded from willingness to serve, which i think is a great -- is a great tragedy. and of course, some have been filibustered, they have been denied the opportunity to have an up or down vote on the senate floor.

i told you when we visited in my office, that's not going to happen to you, if i have anything to say about it. you will get that up or down vote on the senate floor. but i want to ask your assistance this morning to try to help us reconcile two pictures that i think have emerged during the course of this hearing. one is, of course, as senator schumer and others have talked about your lengthy tenure on the federal bench as a trial judge and court of appeals judge, and then there's the other picture that has emerged that -- from your speeches and your other writings. i need your help trying to reconcile those two pictures, because i think a lot of people have wondered about that. i guess the reason why it's even more important that we understand how you reconcile some of your other writings with your judicial experience and tenure is a fact that, of course, now you will not be a

lower court judge, subject to the appeals to the supreme court. you will be free as a united states supreme court justice to basically do what you want with no court reviewing those decisions. harken back to the quote we started with during my opening statement about the supreme court being infallible, only because it's final. so i want to just start with the comments that you made about the wise latina speech that, by my count, you made at least five times between 1994 and 2003. you indicated that this was really -- please correct me if i'm wrong. i'm trying to quote your words -- "failed rhetorical flourish that fell flat." i believe at another time you said there were "words that

don't make sense," closed quote. and another time i believe you said it was, quote, "a bad idea," closed quote. am i accurately characterizing your thoughts about the use of that phrase that has been talked about so much? >> yes, generally. but the point i was making was that, justice o'connor's words, the ones i was using as a platform to make my point about the value of experience generally in the legal system was that her words literally, and mine literally, made no sense. at least not in the context of what judges do or -- what judges do. i didn't, and don't, believe that justice o'connor intended to suggest that when two judges disagree, one of them has to be unwise. and if you read her literal

words that wise old men and wise old women would come to the same decisions in cases, that's what the words would mean. but that's clearly not what she meant. and if you listen to my words, it would have the same suggestion, that only latinas would come to wiser decisions. but that wouldn't make sense in the context of my speech either, because i pointed out in the speech that eight, nine white men have decided brown versus board of education, and i noted in a separate paragraph of the speech, that no one person speaks for the voice of any group. so my rhetorical flourish -- just like hers -- can't be read literally. it had a different different meaning in the context of the entire speech. >> but judge, she said a wise man and a wise woman would reach

the same conclusion. you said that a wise latina woman would reach a better conclusion than a male counterpart. what i'm confused about, are you standing by that statement or are you saying that it was a bad idea and are you disavowing that statement? >> it is clear from the attention that my words have gotten and the manner in which it has been understood by some people that my words failed. they didn't work. the message that the entire speech attempted to deliver, however, remains the message that i think justice o'connor meant, the message that higher nominees, including justice alito, meant when he said that his italian ancestry, he considers when he's deciding

discrimination cases. i don't think he meant -- i don't think justice o'connor meant -- that personal experiences compel results in any way. i think life experiences generally, whether it's that i'm a latina, or was a state prosecutor, or have been a commercial litigator, or been a trial judge and an appellate judge, that the mixture of all of those things, the amalgam of them, helped me to listen and understand. but all of us understand, because that's the kind of judges we have to proven ourself to be, we rely on the law to command the results in the case. so when one talks about life experiences, and even in the context of my speech, my message was different than i understand my word have been understood by some. >> so do you stand by your words

of yesterday and when you said it was a failed rhetorical flourish that fell flat, that they are words that don't make sense and that they're a bad idea? >> i stand by the words. it fell flat. and i understand that some people have understood them in a way that i never intended, and i would hope that in the context of the speech that they would be understood. >> well, you spoke about the law students to whom these comments were frequently directed and your desire to inspire them. if in fact the message that they heard was that the quality of justice depends on the sex, race or ethnicity of the judge, is that an understanding that you would regret? >> i would regret that. because for me, the work i do with students -- it's not just

in the context of those six speeches. as you know, i give dozens more speeches to students all the time and to lawyers of all backgrounds. and i give -- and have spoken to -- community groups of all type. what i do in each of those situations is to encourage both students, and as i did when i spoke to new immigrants that i was admitting as students -- to try to encourage them to participate on all levels in our society. i tell people that that's one of the great things about america, that we can do so many different things and participate so fully in all of the opportunities that america presents. it's a message that i deliver repeatedly and, as the context of all of my speeches, is, i've made it, so can you. work hard at it.

pay attention to what you're doing and participate. >> let me ask about another speech you gave in 1996 that was published in a suffolk university law review where you wrote what appears to be an endorsement of the idea that judges should change the law. you wrote, "change, sometimes radical change, can, and does, occur in the legal system that serves a society whose social policy itself changes." you noted with apparent approval that, quote, "a given judge or judges may develop a novel approach to a specific set of facts or legal framework that pushes the law in a new direction." closed quote. can you explain what you meant by those words? >> the title of that speech was "returning majesty to the law." as i hope i communicated in my opening remarks, i'm passionate about the practice of law and judging, passionate in the sense

of respecting the rule of law so much. the speech was given in the context of talking to young lawyers and saying, don't participate in the cynicism that people express about our legal system. >> excuse me, sorry, didn't mean to interrupt you. >> and i was encouraging them not to fall into the trap of calling decisions that the public disagrees with, as they sometimes do, activism or using other labels, but to try to be more engaged in explaining the law and the process of law to the public. and in the context of the words that you quoted to me, i pointed out to them explicitly about evolving social changes, that what i was referring to is, congress is passing new laws all

the time, and so whatever was viewed as settled law previously will often get changed because congress has changed something. i also spoke about the fact that society evolved in terms of technology and other developments, and so the law is being applied to a new set of facts. in terms of talking about difference approaches in law, i was talking about the fact that there are some cases that are viewed as radical -- and i think i mentioned just one case, brown versus board of education -- and explaining and encouraging them to explain that process, too. and there are new directions in the law in terms of the court. the court, supreme court, is often looking at its precedents and considering whether in certain circumstances this precedent is owed deference for

very important reasons. but the court takes a new direction, and those new directions rarely, if ever, come at the initiation of the court. they come because lawyers are encouraging the court to look at a situation, and a new way to consider it in a different way. what i was telling those lawyers, don't play into people's skepticism about the law. look to explain to them the process. i also, when i was talking about returning majesty to the law, i spoke to them about what judges can do. and i talked about in the second half of that speech that we have an obligation to ensure that we were monitoring the behavior of lawyers before us so that when questionable ethical or other

conduct could bring disrepute to the legal system, that we monitor our lawyers because that would return a sense -- >> judge, i think we're straying away from the question i had talking about oversight of lawyers. would you explain how when you say judges should -- or i'm sorry. let me just ask, do you believe that judges ever change the law? i take it from your statement that you do. >> they change -- can't change law. we're not lawmakers. but we change our view of how to interpret certain laws based on new facts, new developments by trying out theories, considerations of whether the reliance of society may be in an old rule. we think about whether a rule of law has proven workable. we look at how often the court

has affirmed the prior understanding of how to approach an issue. but in those senses there's changes by judges in the popular perception that we're changing the law. >> in another speech in 1996, you celebrated the uncertainty of the law. you wrote that the law is always in a "necessary state of flux," closed quote. you wrote that the law judges declare is not quoted definitive capital "l" law that many would like to think exists, closed quote. and "the public fails to appreciate the importance of indefiniteness in the law." can you explain those statements and why do you think indefiniteness is so important to the law? >> it's not that it's important to the law as much as it is what legal cases are about.

people bring cases to courts because they believe that precedents don't clearly answer the fact situation that they're presenting in their individual case. that creates uncertainty. that's why people bring cases and they say, look, the law says this, but i'm entitled to that. i have this set of facts that entitle me to relief under the law. it is the entire process of law. if law was always clear, we wouldn't have judges. it's because there is indefiniteness not in what the law is, but its application to new facts, that people sometimes feel is unpredictable. that speech, as others i've given, is an attempt to encourage judges to explain to the public more of the process.

the role of judges is to ensure that they are applying the law to those new facts, that if they're interpreting that law with congress' intent, being informed by what precedents say about the law and congress' intent and applying it to the new facts. but that's what the role of the courts is. and obviously the public is going to become impatient with that if they don't understand that process. i'm encouraging lawyers to do more work in explaining the system, in explaining what we are doing as courts. >> in a 2001 speech at berkeley, you wrote, "whether borne from experience or inherent physiological or cultural differences, a possibility i abhor less or discount less than my colleague, judge cedarbaum,

our our national and gender origins will make a difference in our judging." a difference is fizz logical if it relates to the mechanical, biofunctions of the body, if i understand the word, what do you mean by that? >> i was talking about just that. there are in the law. there have been upheld in certain situations that certain job positions have a requirement for certain amount of strength or other characteristics that maybe a person who fits that characteristic can have that job, but there are difference that may affect a particular type of work we do that all the time. you have to be a pilot that has good eye sight. >> we're talking about pilots and not judging, right?

>> the context of that was talking about in the process of judging and the process of judging, for me, is what life experiences brings to the process. it helps you listen and understand and it doesn't change what the law is or what the law commands. a life experience as a prosecutor may help me listen and understand an argument in a criminal case. it may have no relevancy in an anti-trust suit. it's just a question of the process of judging. it improves both the public's confidence that there are judges from a variety of different backgrounds on the bench because they feel all issues are better addressed, not that it's better addressed but it helps that

process of feeling confident that all arguments are going to be listened to and understood. >> you stand by the comment or the statement that inherent physiological difference will make a difference in judging? >> i'm not sure exactly where that would play out, but i was asking a hypothetical question in the paragraph. i was saying, look, we just don't know. if you read the entire part of that speech, what i was saying is, let's ask the question. that's what all these studies are doing. ask the question if there is a difference. ignoring things and saying it doesn't happen isn't an answer to a situation, it's considerate. considerate is a possibility. and think about it, but i certainly wasn't intending to suggest that there would be a difference that affected the outcome. i talked about there being a

possibility that it could affect the process of judging. >> as you can tell, i'm struggling a little bit to understand how your statement about physiological differences could affect the outcome or affect judging and your stated commitment to fidelity of the law being your sole standard and how any litigant can know where that will end. let me ask you on another topic. there was a "washington post" story on may 29th, 2009, where it starts out saying the white house about judge sonia so sotomay sotomayor's scant record on abortion rights. goes on to say white house press secretary says the president did not ask sotomayor specifically

about abortion rights during their interview. is that correct? >> yes. that is absolutely correct. i was asked no questions by anyone, including the president about my abuse on any specific legal issue. >> do you know then on what basis if that's the case, and i accept your statement, on what basis the white house officials would subsequently send a message that abortion rights groups do not need to worry about how you might rule in the challenge in rowe versus wade? >> no, sir because you just have to look at my record to know that in the cases that i addressed on all issues, i follow the law. on what basis would george charge you as a corporate litigator, on what basis would he say that he thinks support of abortion rights would be in line with your generally liberal

instincts? he's quoted in his article saying "i can guarantee she'll be for abortion right." on what basis would mr. pavia say that, if you know? >> i have no idea since i know for a fact i never spoke to him about my views on abortion, frankly, on my views on any social issue. george was the head partner of my firm, but our contact was not on a daily basis. i have no idea why he's drawing that conclusion because if he looked at my record, i have ruled according to the law in all cases addressed to the issue of the termination of abortion rights of women's rights to terminate their pregnancy and i voted in cases in which i upheld the application of the mexico city policy, which was a policy

in which the government was not funding certain abortion related activities. >> do you agree with his statement that you have generally liberal instincts? >> if he was talking about the fact that i served on a particular board that promoted equal opportunity for people, the puerto rican legal defense and education fund, then you could talk about that being a liberal instinct in the sense that i promote equal opportunity in america and the attempts to ensure that. but he has not read my jurises prudence for 17 years, i can assure you. he's a corporate litigator and my experience with corporate litigators is that they only look at the law when it affects the case before them. >> i hope as you suggested, not only liberals endorse the idea

of equal opportunity in this country, that's a, i think, bed rock doctrine that under all of our law, but that brings me in the short time i have left to the new haven firefighter case. as you know, a number of the new haven firefighters who are here today and will testify tomorrow and i have to tell you, your honor, as a former judge myself, i was shocked to see that the sort of treatment that the three-judge panel you served on gave to the claims of these firefighters. by an unpublished summary order, which has been pointed out in the press, would not likely to be reviewed or even caught by other judges on the second circuit, except for the fact that judge cabranas read about a comment read by the lawyer representing the firefighters in the press that the court gave

short shrift to the claims of the firefighters. judge cabranas said the core issue presented by this case, the scope of municipal lawyers authority to disregard results based solely on the applicant is not addressed by any precedent of the supreme court or our circuit. look order, this doesn't cite any legal authority whatsoever to support its conclusion. can you explain to me why, why you would deal with it in a way it appears to be so, well, dismissive may be too strong of a word, but avoid the very important claims so that the supreme court ultimately reversed you on that were raised by the firefighters' appeal? >> senator, i can't speak to

what brought this case to judge cabranas' attention. i can say the following, however. when parties are dissatisfied with a panel decision, they can file a petition for rehearing and bond and, in fact, that's what happened in the ricci case. those briefs are routinely reviewed by judges so addressing by summary order or opinion doesn't tie the party's claims from other judges. they get the petitions for rehearing. similarly, parties when they're dissatisfied with what a circuit has done file petitions for certiorari which is for the supreme court to review a case. so, the court looks at that, as

well. regardless of how a circuit decided a case, it's not a question of hiding it from others. with respect to the broader question that you're raising, which is, why do you do it by summary order or why do you do it in a published opinion or in a procurium, the question or the practice is that that 75% of circuit court decisions are decided by summary order. in part, because we can't handle the volume of our work if we were writing long decisions in every case, but, more importantly, because not every case requires a long opinion if a district court opinion has been clear and thorough on an issue. and in this case, there was a

78-page decision by the district court. it adequately explained the questions that the supreme court addressed and reviewed and, so, to the extent that a particular panel considers that it has been by precedent, that's a question that the court above, obviously, can revisit as it did in ricci where it looked at it and said, well, we understand what the circuit did and we understand what existing law is and we should look at this question in a new way. that's the job of the supreme court. >> judge, even the district court admitted that a jury could rationally infer that city officials worked behind the scenes to sabotage the promotional examinations because they knew that the exams, they knew where the exams certified the mayor would incur the rath of reverend boyce kimber and

other members of the african-american community. you decided that based on their claim of potential desperate impact liability that there is no recourse, that the city was justified in disregarding the exams and, thus, denying these firefighters, many of whom suffered hardship in order to study and to prepare for these examinations and were successful only to see that hard work and effort disregarded and not even acknowledged in the court's opinion. and, ultimately, as you know, the supreme court said that you just can't claim potential desperate impablt liability as a city and then deny someone a promotion based on the color of their skin. there has to be a strong basis in evidence. but you didn't look to see if there was a basis in evidence to the city's claim. your summary opinion unpublished

summary order didn't even discuss that. don't you think that these firefighters and other litigants deserve a more detailed analysis of their claims and an explanation for why you ultimately deny their claim? as you know the court opinion issued on bounds as i do and the hardship that the firefighters experience. that's not been naysayed by anyone. the issue before the court was a different one and the one that the district court addressed was what decision the decisionmakers made, not what people behind the scenes wanted the decisionmakers to make. but what they were considering. and what they were considering was the state of the law at the time. irn an attempt to contend with

what they the law said, that they made a choice under that existing law. the supreme court in its decision set a new standard by which an employer and lower court should review what the employer is doing by the substantial evidence test. that test was not discussed with the panel. it wasn't part of the arguments below. that was a decision by the court, borrowing from other areas of the law and saying, we think this would work better in this situation. >> ply time's up. thank you. >> thank you. >> thank you very much. i have a note in the record, we'll put in the record a letter of support for judge sotomayor's nomination for the united states hispanic chamber of commerce on behalf of its 3 million hispanic-owned business members

including the el paso hispanic chamber of commerce, greater dallas, the houston hispanic chamber of commerce and a similar letter from arizona hispanic chamber of commerce. i meant to put them in the record before, we'll put them in the record now. >> mr. chairman, i would offer on the latter for the record from the national rifle association want to express serious concern about the nomination of judge sonia sotomayor and i also noticed the head of that organization wrote an article this morning raising increased concern after yesterday's testimony and i would also offer for the record a letter from mr. richard land, the ethics and liberty commission of the southern baptist commission also raising

concern. >> without objection, those will be made prior to the record and we'll give everything up. senator carden. >> thank you. >> there you get a little politics in between the questioning in this, the second day of questioning for sonia sotomayor. candy crowley, i guess politics part of this process as much as everyone who wants to take the high road. we just heard the chairman patrick leahy make mention of several hispanic groups, including in texas, the home state of john cornen who just spent 30 minutes trying to grill sonia sotomayor that was followed by jeff sessions pointing out the nra isn't too thrilled with her from that perspective. >> i have yet to see an issue that comes up on capitol hill that doesn't have a political bent to it, even when there's not political intent, which clearly there was in this case. even when there isn't, there is always a political implication.

honestly, what we're seeing at this point is not the undoing of a nominee. we're seeing the march towards a new supreme court justice. what we're hearing is where the parties differ when it comes to judicial philosophy, but we're getting it mostly through the eyes of this one state. and this one case. >> i want to play the exchange. once again, there was a lot of discussion that senator cornyn and sonia sotomayor had on her wise latina comment. listen to this. unfortunately, we don't have the audio, but we'll work that up and we'll have the audio. did senator cornyn make any end roads in trying to undermine her confirmation? >> i don't think she's in jeopardy of losing confirmation,

but there is a paradox here which i don't understand the precise answer to. everybody on all sides of the aisle seem to think it's important to have diversity on the bench, but, at the same time, it's forbidden to say that because of your background you view things differently. so, why is it important to have diversity if people don't see things differently because of their background. everyone is trying to navigate around that paradox and i don't have a clear answer to it. >> because it presents opportunity for young people to, you know, on the one hand you leave it at the door. on the other hand, it helps you listen and understand. i think what she's trying to say, but it's really difficult. >> people recognize the studies in corporate america and about the fact of having different voices around the table may help you make better decisions. the reason there is so much focus in this particular, a lot of lindsay gram overnight and i realized that he was a skillful

lawyer because he sucked you in by focusing on wise latina is using race and that's something that makes it difficult in this country to talk about. he's basically saying to a lot of people, you know, there's a double standard. they're getting away with something that i don't, poor white men. he did it in a way that just was skillful. and then, he went after her temperament, right? think about it, you get to call this woman, a 55-year-old woman, you are a bully. you don't know how to act nice to people. that is pretty patronizing. so, it was a job well done because the image in american people is she is out of control. >> he was quoting lawyer's comments. anonymous comments. >> some of othem. >> some who had offered these thoughts that she was tough. >> if anybody made a good case he should be on the supreme court yesterday was lindsey graham and by the way, whether

you're male or female and young or old, people are bullies. that's not something lindsey graham made up. other people commenting on her. should people be prescribed bringing those up because of her gender or ethnicity? >> a lot of people have made the point overnight that, you know, the kind of tough comments that were anonymously made about her would never be made about a male colleague on the bench because that's the way men supposedly operate where women are held to a different standard. >> those of us who watch supreme court arguments watch scalia in the lawyers' faces all the time, much more than sotomayor ever is. chief justice roberts who is now giving justice scalia a run for his money. so, she sounds to me like she's going to fit right in there, not because she's some shrinking

flower, but because she's tough. that's considered a skill for a supreme court justice. >> let's take a quick break because there's a lot to digest and we have the exchange that sonia sotomayor had with john cornyn ready to go on the wise latina comment. cnn.com, you can see these hearings uninterrupted and we're streaming all of that live. the doctor diagnosed arthritis in my right knee.

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we're continuing our coverage of day three of the sonia sotomayor before the judiciary committee. we think this is the final day where she could be answering questions, although it could go into tomorrow morning, as well. tomorrow they scheduled outside witnesses to come in for and against her conifer mag, including some of the firefighters from new haven, connecticut. we'll have a discussion of that coming up. i want to play this exchange that she had just a little while ago. questions from john cornyn, the

republican senator from texas on her controversial wise latina woman comment. >> it is clear from the attention that my words have gotten and the manner in which it has been understood by some people that my words fail. they didn't work. >> do you stand by your words of yesterday and when you said it was a failed rhetorical flourish that fell flat, that there are words that don't make sense and they're a bad idea? >> i stand by the words, it fell flat. and i understand that some people have understood them in a way that i never intended and i would hope that in the context of the speech they would be understood. >> it's already causing some controversy because the associated press has just moved the story saying she's standing

by her woman latina comments although you clearly hear her saying she stood by the words she's saying yesterday because those words fell flat. this is a sensitive news issue we're talking about. thousands rely on the associated press to get it right. >> but she's, yes, she said there, i stand by the words, it fell flat, but she is the source of the confusion in the sense that the republicans how to handle this. she gave in that speech, if you read the whole speech, we have it online at cnn.com, you should read the whole thing. she says at the end of the speech t is important that we put the robot we set all our biases aside. she did say that in that speech, but she said a wise latina would come to a better conclusion than a white male in some cases. you said that in a speech and done other things as a lawyer,

do you carry that on to the judge? how do you not carry that on to the bench? they're saying she is a judicial activist. they have not used those words in the questioning, as strongly as they did. if we go back to justice ginsburg and justice breyer, the republicans at that time were much more direct in saying, are you a judicial activist. do you make policy from the bench? they're dancing around it with judge sotomayor, even though in her speeches if you're a lawyer doing a cross-examination, there is plenty in her speeches to cross examine her on those point. >> she did not retract those words. her clear message is that they were misinterpreted or misunderstood or they fell flat because her meaning was unclear and she's trying to clarify it, but she's not retracting it because politically if she were to start down that road, that she retracted those words, that

would become more of a problem for her. >> she said, my words failed. that is pretty, clear y think. >> one thing, speaking of lawyer, you learn is when to stop beating a dead horse and i think this comment has been picked over to such an extent, she has said what she's going to say about it and it seems to me that you might want to move on to some of the subjects john was talking about. broader, philosophical discussions. i am surprised, for example, why aren't they asking her, do you believe in interpreting the constitution according to its original intent. lindsey graham hinted at that a little bit. what about the living constitution, something associated with the liberal. talk, just try to get her talking about substenative issues. >> i think it's a way of bringing race, uncomfortable, in

and to do the kind. affirmative action and democrats are in favor of affirmative action and that will hurt people in the poll. why are we bringing it up when we have substantive issues to address. >> the rush limbaugh and the others saying she's a racist, she's a reversed racist and they feel if they get all aggressive with her, it will backfire. >> they are doing it very under the table, but it's there. >> it's very straight forward and we do know where judge sotomayor stands. one stands for literal interpretation of the law and we're seeing very clearly their strategy here and she seems to be repudiating everything she said before and i think that is why it is important for the questioning to go to a bigger picture. there is a current of thought in the law, a legal realism that

the living, breathing constitution that says the constitution is improved by people's experiences. that is a liberal perspective and judge sotomayor is self-described as a liberal. does she adhere to that? does she, will she get on the court and judge that way? >> i think in case law, in too many ways this is due diligence by the republicans. they're not at this point trying to get, they understand, as we do, that she's kind of given all she's going to give on this particular subject. this is now due diligence by republicans. look, let's get this on the record and part of the reason by judicial activism, at least in this case, has to do with the fact that some members of the committee understand that she's a judicial activist and not something they can complain about because they have a president in office who was elected by the people who wants a bit of judicial activism or however that is defined. but it's not going to be something. >> candy, closing one door she

opened another. she tried to close the door i'm an activist, no i will open the door, but she's opened another door and that door is credibility. she said just the opposite for years. are we not to believe anything this woman said for years and years and years. >> if she had said, i didn't mean what i said, then that would have oep oened the door for republicans to say, okay, what do you mean? what do you really think? we don't know who you are. >> hold those thoughts, there are a lot more to discuss, remember the final republican is getting ready to ask his questions. we'll see if he continues along this line or goes to some new areas of questioning. our coverage will continue from the senate judiciary committee right after this.

the united states supreme court, that's where sonia sotomayor hopes to be one of the nine justices serving starting in october. she has to be confirmed by the senate judiciary commity and then the full senate over the next few weeks. that seems very, very likely, although the questioning of her is continuing right now. we're standing by the final republican member of the committee tom coburn, the republican from oklahoma. he's getting ready in the next few moments to start his questioni questioning. other democrats will follow, including arlen specter, the republican turned democrat, former chairman of that committee and al franken the newest member of the committee himself. the whole attitude, her philosophy on the court, the

senator from texas john cornyn pressed her to try to explain what these justices should be doing. >> do you know then on what basis, if that's the case, and i accept your statement, on what basis that the white house officials would subsequently send a message that abortion rights groups do not need to worry about how you might rule in the challenge to rowe versus wade? >> no, sir. you just have to look at my record to know that in the cases that i addressed on all issues, i follow the law. >> all right. not exactly the clip that we wanted, but an important discussion on abortion rights. jeff toobin, our senior legal analyst, he was trying to get her to say, yes, she supports abortion rights and she was, obviously, not prepared to say that. >> also, i have to say, this is where these hearings are such a disappointment because the idea that you are going to make up your mind about abortion just by

following the law is simply absurd. justice thomas thinks he's following the law. he thinks rowe v. wade should be overturned. justice ginsburg thinks she's following the law because she thinks abortion rights should be followed under a different theory. justice kennedy thinks rowe v. wade is just fine. all think they're following the law and think they're right on the issue. to say simply, you're following the law, is not edifying, to say the least. >> candy, when she said it was settled law abortion rights yesterday, that's what john roberts said when he was testifying a few years ago, as well. >> he also mentioned the core of being settled law. there are so many things that now cover the supreme court that bubble up from the states or the pipeline. what does that mean exactly? requiring parental consent, does

that viliolate the law? so many abortion issues around the parameters of core law that it means nothing to say it is law, except to say it is. >> hang on for one second. there is breaking news up in the senate, as well. >> no longer just unacceptable, the health care system, it is unsustainable. we cannot continue. >> the acting chairman of this committee that's dealing with health care reform and just a few moments ago, they passed the health care reform. you see the vote, 13-10 in favor. let's listen in briefly to chris dodd. >> that makes us bring together the synergy and the opportunity to do what every other congress and every other administration has been unable to achieve for almost seven decades. we're determined that will not happen on our watch. with that, let me turn to senator harkin and the rest of my colleagues. >> well, first of all, mr. chairman, thank you very much for your great leadership on

getting us over the finish line. we all worked hard, we all stuck together and what we now have is we now have a bill that does four things. it reduces costs, it protects choice, it assures coverage for all americans and it also begins to change our system to be a health care system rather than just a sick care system. as president obama has said many times, that prevention and wellness and public health is the one way that we're going to change the system so that we can keep costs down in the future. in this bill, we have made great strides forward and putting more emphasis on prevention, keeping people healthy in the first place and keeping them out of the hospital. so y think this is a good bill for america, it is the right prescription for what ailes this country right now. and i want to thank all my colleagues for all the great

work they did and sitting there throughout all these long hours and drafting a bill that i believe now will garner a lot of support in the senate and i believe we'll get it over the finish line, some time this f l fall, and we're going to have this on the president's desk some time early this fall. >> all right, so, the senate has at least the key senate committee has passed legislation for major health care reform, similar action has been done on the house side, although very different in terms of raising taxes on wealthier americans. eventually at some point, if, in fact, a senate version does emerge and a house version emerges, they're going to have to reconcile those two versions and come up with something that both houses can then send to the president of the united states for his signature. that is a lot easier said than done. dana bash is our senior congressional correspondent up on the hill. huge differences between the house version, the tax increases there and the senate version.

missing some of those huge tax increases. >> that's right. those are some of the huge differences. but i think the key thing that our viewers need to understand is that certainly this is something that is worth noting and incredibly important to these senators who have been working day in and day out for weeks and weeks on this specific committee, the so-called health committee to pass this legislation. but there is another committee, the senate finance committee that really is the one that is going to make this happen. this, you noticed this passed by 13-10, really along party lines. this other committee, the senate finance committee led by matt baucus of state of montana and also on the republican side, charles grassley of iowa, they're the ones. the white house knows, the democratic leadership knows and pretty much everybody on all sides of capitol hill, they're the ones that will ultimately determine what exactly this health care reform bill looks like. and they are working also day in and day out and they might come up with something in the next

couple of days, even, we're told, through this committee. that is certainly the place we're going to look for it. doesn't take away from the fact that democrat can certainly speak proudly that they made some progress finally on this issue which has been taking a very long time, this is probably something we should be looking ahead towards, especially since the fact that this committee isn't really where the action is going to be ultimately. >> john king is here, john, 13-10, along party lines it passes this committee. the democrats all passing in favor and the republicans all voting opposed. i guess it's something to say that all democrats held together on it because there's a lot of liberal views. >> but to dana's point, this committee has a more liberal democratic composition than the finance committee where they have to come up with how to pay for this. wolf, if you want to know one thing about the health care debate today, barack obama's own political organization,

organizing for america has started running ads in ten states, many of those states with democratic senators. in north dakota and mary landru on the ballot next year and they are running ads in states where democratic senators in vulnerable states and more conservative states who are worried about the price tag here and are worried about a greater government role in health care. you have a democratic president running ads to pressure democratic lawmakers. this is a critical step, an important step. they're making progress towards passing this legislation, but when it comes to paying for it, taxing health care benefits and taxing the rich and a government, some sort of a government option health care plan, there are enough jitters out there, a dozen, 15 or so, 20 democrats or so that are still very, very nervous. moving, but not at the finish line. >> ken conrad, a chairman of one of the key committees, a democrat, that this house version, the charlie rangel version of raising taxes and yesterday they went ahead with

it for the wealthiest americans. that's simply not going to fly in the senate. >> absolutely so. you have, you know, here's what the president and that's what these ads speak to. the republicans are really a little irrelevant at this point because if he's going to get what he wants out of congress, he needs to court the democrats. and, yes, they understand they have a very popular president, but they also have constituencies back home who are increasingly looking at this now trillion dollar deficit and saying, whoa, and looking at the stimulus bill and saying what has it done to the economy that, in fact, they may look more to their constituencies than they will to the president's popularity. >> important news happening on capitol hill involving health care reform. we'll have more on that, but we're expecting some fireworks on the sonia sotomayor confirmation hearings and tom coburn is up next. his questioning when we continue.

right back to the senate confirmation hearings for sonia sotomayor. let's check in, other important news happening right now. cnn's tony harrises is watching that. tony? >> a new warning from al qaeda's number two man telling the people to support militants or face punishment from guard. al zawahiri's audiotape was released today. an iranian airliner has crashed killing all 168 people onboard. it was flying from tehran to armenia when it went down. an area commander says the

russian-made plane desint grated. marks a spot where it slam under to the ground. military forces are searching for the flight data and cockpit recorders to help determine the cause of the crash. seven suspects in custody, but authorities are still looking for one more in the shooting deaths of a florida couple known for adopting special needs children. sheriff officials say the six adult suspects and an unidentified juvenile will all face murder charges. the couple's daughter reflected on the news and reflected on the family's loss. >> we're relieved that the people involved in this crime are apprehended and we're happy that justice will be served. in the events that unfolded in the last week and last couple days have devastated our family. as you know, our mom and dad were loving, caring, giving people. they have simply been taken from our lives too soon. >> the family is establishing a trust fund for the couple's nine

younger children. shuttle launch take six. nasa tries again today to get the space shuttle "endeavour" into orbit. the launch has been delayed five times. "endeavour" will carry the final piece of the science lab to the international space station. the launch is set for 6:03 p.m. eastern, weather permitting. we are keeping you informed and now back to wolf blitzer and cnn's special coverage of the sonia sotomayor confirmation hearings. >> weather permitting, we'll show you that launch live at 6:03 in "the situation room."

senator tom coburn, himself a physician, is now questioning sonia sotomayor. they just had an exchange on abortion. >> and, so, there are situations in which they might and situations where that definition would or would not have applicability to the dispute before the court. all state action is looked at within the context of what the state is attempting to do and what liability s it's imposing. >> but you would not deny the fact that states do have the right to set up statutes that define, to give guidance to their citizens what constitutes death. >> as i said, it depends in what context they're attempting to do that. >> they're doing it so they limit the liability of others with regard to that decision, which would inherently be the right of the state legislature,

as i read the constitution. you may have a different response to that. which brings me back to technology, again. as recently as six months ago, we now record fetal heart beats at 14 days post-conception and fetal brain waves at 39 days post conception and i don't expect you to answer this, but i do expect you to pay attention to it as you contemplate these big issues. we have this schizophrenic rule of the law where we define death of the absence of those, but we refuse to define life as the presence of those. and all of us are dependent at different levels on other people at all stages of our development to the very early in the womb to outside the womb to very late. it concerns me that we are so inaccurate or inaccurate is an improper term, inconsistent in terms of our application of

logic. you said that rowe v. wade settled law yesterday and i believe it settled under the basis of the right to privacy, which has been there. so, the question i'd like to turn to next is in your ruling, the second circuit ruling on, i'm trying to remember the nam the case, baloney. the position was is that there's not an individual, fundamental right to bear arms in this country. is that a correct understanding of that? >> no, sir. >> please educate me, if you would. >> in the supreme court's decision in heller it recognized an individual's rights to bear arms as a right guaranteed by the second amendment, an

important right and one that limited the actions a federal, the federal government could take respect to firearms, handguns. the maloney case presented a different question and that was whether that individual right would limit the activities that states could do to regulate the possession of firearms. that question is addressed by a legal doctrine. that legal doctrine uses the word fundamental, but it doesn't have the same meaning that common people understand that word to mean. to most people most people by dictionary term critically

important, fundamental, it's sort of rock basis. that meaning is not how the law uses its term when it comes to what it can do or not do. the law has a very specific meaning which means is that amendment of the constitution incorporated through the -- >> through the 14th amendment. >> and others. and i shouldn't say through others, through the 14. the question becomes whether and how that amendment to the constitution that applies or limits the states to act. in maloney, the issue for us was a very narrow one. we recognize it's the law of the

land in the sense of precedent, that there is an individual right to bear arms, as it applies to government, federal government regulation. the question maloney was different for us. was that right incorporated against the state and we determined that given supreme court precedent, precedent that had addressed that precise question and said it's not, so it doesn't fundamental in that legal doctrine sense, that was the court's holding. >> did the supreme court say in heller that it definitely was not or did they just fail to rule on it? >> well, they failed to rule on it. >> there's a very big difference there. >> i agree. let me continue with that. i sit in oklahoma in my home and what we have today as law on the land, as you see it, i do not have a fundamental, incorporated right to bear arms. as you see the law today.

in your opinion of what the law is today, is my statement a correct statement? >> no, it's not my interpretation. i was applying both supreme court precedent deciding that question and second circuit precedent that had directly answered that question and said it's not incorporated. the issue of whether or not it should be is a different question and that is the question that the supreme court may take up. in fact, in his in his opinion, justice scalia suggested it should but it's not what i believe, but what the law said about it. >> where do we stand today about my statement that i have. i claim to have a fundamental,

guaranteed, spelled out right under the constitution that is the individual and applies to me the right to own and bear arm. am i right or am i wrong? >> i can't answer the question of incorporation other than to refer to precedent. precedent says as the second circuit interpreted the supreme court precedent that it's not incorporated. it's also important to understand that the individual bearing arms is raised before the court in a particular setting. and by that i mean what the court will look at is the state regulation of your right and then determine if the state can do that or not. so, even once you recognize a right, you're always considering what the state is doing to limit or expand that right and then decide if that's okay

constitutionally. >> i went back and read the history of the debate on the 14th amendment. what generated most of the 14th amendment was in reconstruction and southern states were taking away the right to bear arms, recently freed slaves and much of the discussion in the congress was to restore that right of the second amendment through the 14th amendment to restore an individual right that was guaranteed under the constitution. so, one of the purposes for the 14th amendment, the reason, one of the reasons it came about is because those rights were being abridged in the southern states post-civil war. let me move on. in the constitution we have the right to bear arms. whether it's incorporated or not, it's stated there. a right to privacy, which is not

explicitly spelled out, but spelled out to some degree in the fourth amendment which has settle law and is fixed and something such as the second amendment, which is spelled out in the constitution as not settled law and settled fix. i don't want you to answer that specifically, but i would like to hear you say, how did we get there? how did we geet the point where something that is spelled out in our constitution and guaranteed to us, but something that isn't spelled out specifically in our constitution is. would you give me your philosophical answer. i don't want to tie you down on any future decisions, but how do we get there when we can read this book and it says certain things and those aren't guaranteed, but the things it doesn't say are. >> one of the frustration with judges and their decisions by citizens is that, this was an

earlier response to senator cornyn, what we do is different than the conversation the public has about what it wants the law to do. we don't judges make law, what we do is we get a particular set of facts presented to us. we look at what those facts are, what in the case of different constitutional amendments is and what states are deciding to do or not do and then look at the constitution and see what it says in an attempt to take its words and its principals and precedents that have described those principals and apply them to the facts before you. in discussing the second amendment as it applied to the federal government, justice scalia noted that there had been

long regulation by many states on a variety of different issues related to possession of guns. and he wasn't suggesting that all regulation was unconstitutional, he was hoping in that case that d.c.'s particular regulation was illegal. as you know, there are many states that prohibit felons from possessing guns and so does the federal government. and, so, it's not that we make a broad policy choice and say, this is what we want, what judges do. what we look at is what other actors in the system are doing, what their interest in doing it is and how that fits to whatever situation they think they have to fix. what congress or state legislature has to fix.

all of that is the court's function. so, i can't explain it philosophically, i only explain it by its setting and what the function of judging is about. >> thank you. let me follow up with one other question. as a citizen of this country s do you believe in my ability to have self-defense of myself, personal self-defense? do i have a right to personal self-defense? >> i'm trying to think if i remember a case where the supreme court has addressed that particular question, is there a constitutional right to self-defense? and i can't think of one. could be wrong. but i can't think of one. generally, as i understand most criminal law statutes are passed

by states. and i'm also trying to think if there is any federal law that includes a self-defense provision or not. what i was attempting to explain is that the issue of self-defense is usually defined in criminal statutes by the state's laws. and i would think, although i haven't studied all of the state's laws i'm intimately familiar with new york. >> but do you have an opinion or can you give me your opinion of whether or not in this country i personally, as an individual citizen, have a right to self-defense? >> as i said, i don't know. i don't know if that legal question has been ever presented. >> i wasn't asking about the legal question, i was asking about your personal opinion. >> that is sort of an abstract

question with no particular meaning to me outside of -- >> i think that's what american people want to hear, your honor. they want to know. do they have a right to personal self-defense? does the second amendment mean something under the 14th amendment? how they take the constitution and not our bright, legal minds, but what they think is important. is it okay to defend yourself in your home if you're under attack? in other words, the general theory is, do i have that right? i understand if you don't want to answer that because it might influence your position that you might have in a case and that's a fine answer with me, but those are the kind of things people would like for us to answer and would like to know, not how you would rule or what you're going to rule and specifically what you think about it, but just yes or no. do we have that right? >> i know it's difficult to deal with someone like a judge who's so sort of, whose thinking is so

cornered by law. >> kind of like a doctor, i can't quit using doctor terms. >> exactly. that's exactly right. but let me try to address what you're saying in the context that i can, okay? which is what i have experience with. which is, new york criminal law because i was a former prosecutor and i'm talking in very broad terms, but under new york law, if you're being threatened with eminent death or very serious injury, you can use force to repel that. and that would be legal. the question that would come up and does come up before juries and judges is how eminent is the threat if the threat was in this room, i am going to come get you and you go home and get