they're then going to take another break. they're going to go into closed-door session to get the review from the fbi, the vetting process, her background checks and all of that. and then after that, they'll resume questioning a second round of questioning from the senators. there's the chairman. he's getting ready to go out to lunch. we'll continue our coverage of these historic judiciary committee hearings in one hour. but let's check in with cnn's kyra phillips right now. she's got a whole lot of other news coming up, including the president of the united states. kyra? >> wolf, thanks so much. a well-off come with 14 kids, byrd and melanie billings, seemed to have blissful lives, undoubtedly violent deaths. new details from pensacola. study abroad, see the world, but do your homework first. we're pushing forward with a cnn special investigation. foreign exchange students shortchanged right here in america. hello, everyone, i'm kyra phillips. live at the cnn world headquarters in atlanta. uf li you're live in the "cnn you're live in the "cnn newsroom."

-- captions by vitac -- www.vitac.com well, while the hearing for for supreme court nominee sonia sotomayor breaks for lunch, we're watching the white house as well, where president obama is about to make another pitch for health care reform. we're going to bring you the president's remarks live as soon as he steps outside. and we're keeping close watch on pensacola, florida, right now. more details coming from that murder case, where a wealthy couple with 14 children, many with special needs, was gunned down in their home. cnn has learned federal drug agents are helping with the case now. the sheriff's office says that the case would be, in their words, a humdinger, so you got to think they're going to drop a real bombshell on us soon. seven people arrested so far, ages 16 to 56. sheriffs saying the group trained for at least a month before their assault on byrd and melanie billings' house, an assault you can see unfold on the home security cameras.

so, what about all of the adopted children? how do you explain to them what's happening? melanie billings' grown daughter talked about that this morning -- >> we've shielded them as much as possible, and that's probably my fault. i know that they need, you know, to know. they have asked questions. it has been talked about with the ones who have asked questions. swim club near philadelphia, accused of racism, says that a lawsuit would put them under. a mostly minority day care center is pursuing a federal civil rights case against the valley swim club, after its kids were kicked out of the pool last month. the pool is run by volunteers who say that they don't have the money to fight a lawsuit. they say overcrowding and not racism prompted them to expel the kids and they have since invited them back. some of the minority kids said that pool patrons made discriminatory comments about them while they were there. smoking debris is pretty much all that is left of an iranian jet. it was headed from tehran to

armenia when it went down not long after takeoff. 168 people on board. no survivors. iran's deadliest air crash in six years. a witness said the plane's tail was on fire when it crashed nose-down into the ground. it was a russian-made jet. back to florida more on the murder mystery. new details possibly now from the sheriff. >> sheriff, is it unusual for someone to have that many possible aliases? what should we read into the fact? most people have one name, and maybe if they were married, they have a maiden name, but there are five or six names there. >> again, since miss long is not the subject of an investigation, we've not developed background data on her. the answer could be as simple is she's had multiple marriages. i don't know. so, again, we would not speculate on this. >> can you talk more about the surveillance not being enabled. do you believe that one of the seven people were supposed to disable it and did not? why do you believe that? >> no, we believe there's an

additional person that that was their job and they failed in that task. >> they didn't show up, or they showed up and didn't do their job? >> we're speculating. an attack of conscience, who knows. but we believe, again, in our formulation in this crime from the beginning to the end, the gaping hole has always been. the execution was flawless, from the entry to the compound and the exit from the pound and the one gaping hole that would not have made this a perfect operation, if you will, was the fact that the security system, the surveillance system was not disabled, so it begs the question, why was it not? >> i guess my confusion there is if you've got all seven people who were on the compound or at the compound, they didn't show up to disable it or one of the seven people there supposed to disable it? >> let me explain this again. we've identified the seven people that entered the complex. we have those folks in custody. so, obviously there is an eighth or ninth person that was supposed to have played that part. that we've yet to identify.

>> were they supposed to be at the time of the crime or were they supposed to do it ahead of time? do you have some context? >> again, we're in speculation at this point. we're pursuing an avenue of this investigation that because of this operation, we believe that the system should have been disabled by someone, who has yet to be identified, or an arrest effected in this case. >> were they surprised that it wasn't disabled? >> i believe that they entered that compound -- and this is the theory that we're currently working on to conclude this case -- they entered the compound with the belief that they were not under surveillance. >> can it be disarmed from the location? >> most of your security systems can either be disarmed at the location or they can be remotely disabled. as many people will tell you in their homes and businesses, they have a security system installed and they can monitor the home from wherever or the business or their home by using the access code from the home computer and monitoring the business or the home, whichever the case may be.

you can activate and/or disable the system, so it could have been done from a remote location. >> can you give us an example of what the avenues they are going down to try to understand for themselves? >> well, this is the reason for persons, again, of interest. we are now looking at anyone that may have had an involvement with the security system. everyone from the company that installed it on back. and so we're wondering, again, why was this system left on in an otherwise -- otherwise -- very -- i hate to use the word "perfect," but perfectly executed murder. >> drugs being involved. can you confirm if the dea is involved in helping you with your investigation? >> i will not address that question. >> do you know what the address on the property is that miss long rented to gonzalez? >> it's a matter of public record, sir. i believe. i will not release that, just like i will not release miss long's address. the attempt here is not to harass miss long. we need to speak to miss long. >> you're asking the public to look for her, can we get some stats on her, her age, you know,

her height, weight, stuff that -- >> i will check with the state attorney's office. again, we received clearance from mr. bill eddin's office to release this information. and if mr. eddin's is comfortable with releasing that, we most certainly will. this is a current photo. [ inaudible question ] i won't address that issue. again, miss long at this point is a person of interest. >> do you believe that she might be in danger? >> no, sir, i've already answered that question. the answers's no. yes, sir? >> have you recovered the weapons used in the murders? >> we have executed numerous search warrants, i will not release at this time the items that were seized. >> how about the safe? >> we have issued numerous search warrants. ill will not address items that have been seized. why is she considered a person -- at least we were told in the beginning that she was a person that a lot of us would know, that the name would be familiar and a name that would ring a bell. why is that? >> miss long is well known in the community. in the gulf breeze area.

i will tell you that, in the gulf breeze area, in gulf breeze proper. >> obviously one of her aliases would ring a few bells that another person prompted. is she related to anybody that people might know? >> possibly. possibly. >> can you tell us now? >> no, i cannot. >> does she have another residence out of state? >> as i understand, she has numerous property holdings, and i'll let it go at that. >> you had previously mentioned that you got early contact with miss long. was she asked to come in, to answer questions, and did not? >> at that time, she was not. to the best -- to the best of my knowledge. >> what information are you provided with so far? >> she has not provided us any information, that's why we would like to speak with her. >> sheriff -- >> any other questions? you got one question. >> sheriff, do we ask you if the funeral was made yesterday and are there any comments, how the investigation was still unfolding. do you want to comment on any of

the things he said about that? >> yes. and people in hell want ice water. thank you very much. >> all right. sheriff david morgan there, escambia county sheriff's department, giving a quick briefing there. cnn had learned that federal drug agents are helping with this case now. we were possibly expecting to hear some interesting twists and turns to this case. but as you heard, when the reporter asked if the dea is involved in this case or not, he just simply said, "i will not address that question." apparently they're looking for one, possibly two other people involved in this case. seven people have been arrested now in the murder of the billings couple, the couple with 14 children, many with special needs. these are the six that are in custody right now, including a 16-year-old teenager. there are seven in custody, possibly now authorities saying they are looking for an eighth or ninth person involved in this case.

also, once again, we want to point out that we have learned, through our sources and our correspondents working this story, that federal drug agents are helping with this case now. possible talk of a drug cartel possibly involved in this case. the sheriff not wanting to address that. actually asked twice about that. and doesn't -- did not want to answer that question. we're going to continue to follow this story, of course, and all breakingingi developmen. we will bring all of that to you as we get it. meanwhile, live picture, once again, from the white house. we are waiting for the president of the united states to make another pitch for health care reform. this morning one of several plans were being hammered out there on capitol hill. clearing the senate health committee, if only on a party-line vote. we're going to bring you the president's live comments once he steps outside. plus, they've come to america to get an education and

learn more about the u.s. but some foreign exchange students say they've seen an awful sight of this country. our drew griffin has been looking in to their claims of abuse. we'll have that story coming up in a moment. but, first, we're going to take you back to the white house, where the president of the united states is getting ready to step up to the mike, once again, pitching his health care reform bill. we continue, obviously, to follow the hearings for the supreme court nominee, sonia sotomayor. as they are breaking for lunch. and while we wait to come back to that, we are going to now take you to the president -- >> hello, everybody. >> -- and his health care reform efforts. >> good afternoon. i am pleased to be joined by not only some of my former colleagues and outstanding legislators, but also by nurses. and i think i've said this before. i really like nurses. and so to have them here today on behalf of such a critical

issue, at a critical time, is extraordinary. let me introduce a few of them. we've got becky patton, who's the president of the american nurses association here. raise your hand, becky. we have dr. mary wakefield, who is a nurse and happens to be the administrator of the health resources and services administration at hhs, our highest-ranking nurse in the administration. we've got keisha walker, an rn, currently a senior research nurse at john hopkins university bloomberg school of health. and becky wiseman, nurse and professor of health at maryland's university school of nursing, and i'm also joined by representative johnson, representative capps, representative mccarthy, chairman george miller and my friend, chris dodd. i am very pleased to be joined today by the representatives

from the american nurses association on behalf of 2.9 million registered nurses in america, men and women who know as well as anyone the urgent need for health reform. now, as i said before, i have a long-standing bias towards nurses. when sasha, our younger daughter, was diagnosed with a dangerous case of meningitis when she was just 3 months old, we were terrified, and we appreciative of the doctors, but it was the nurses who walked us through the entire process to make sure that sasha was okay. when both my daughters were born, the obstetrician was one of our best friends, but we saw her for about ten minutes in each delivery. the rest of the time what we saw were nurses, who did an incredible amount of work in not

only taking care of michelle, but also caring for a nervous husband and then later for a couple of fat little babies. so, i know how important nurses are. and the nation does, too. nurses aren't in health care to get rich. last i checked. they're in it to care for all of us. from the time they bring a new life into this world to the moment they ease the pain of those who pass from it. if it weren't for nurses, many americans in underserved and rural areas would have no access to health care at all. and that's why it's safe to say that few understand why we have to pass reform as intimately as our nation's nurses. they see firsthand the heartbreaking costs of our health care crisis. they hear the same stories that i've heard across this country, of treatment deferred or

coverage denied by insurance companies, of insurance premiums and prescriptions that are so expensive they consume a family's entire budget, of americans forced to use the emergency room for something as simple as a sore throat, just because they can't afford to see a doctor. and they understand that this is a problem that we can no longer defer. we can't kick the can down the road any longer. deferring reform is nothing more than defending the status quo. and those who would oppose our efforts should take a hard look at just what it is that they're defending. over the last decade, health insurance premiums have risen three times faster than wages. deductibles and out-of-pocket costs are skyrocketing, and every single day we wait to act, thousands of americans lose their insurance. some turning to nurses in emergency rooms as their only recourse. so, make no mistake, the status quo on health care is not an option for the united states of america.

it's threatening the financial stability of families, of businesses, and of government. it's unsustainable, and it has to change. i know a lot of americans are -- who are satisfied with their health care right now are wondering what reform would mean for them. so, let me be clear. if you like your doctor or health care provider, you can keep them. if you like your health care plan, you can keep that, too. but here's what else reform will mean for you -- and this is for people who have health insurance -- you will save money. if you lose your job, change your job, or start a new business, you'll still be able to find quality health insurance that you can afford. if you have a pre-existing medical condition, no insurance company will be able to deny you coverage. you won't have to worry about being priced out of the market. you won't have to worry about one illness leading your family into financial ruin. that's what reform means.

not just for the uninsured, but for the people who have health insurance right now. the naysayers in the senate still doubt that we can do this. but it wasn't too long ago that those same naysayers doubted that we'd be able to make real progress on health care reform, and thanks to the work of key committees in congress, we're now closer to the goal of health reform than we have ever been. yesterday, the house introduced its health reform proposal. today, thanks to the unyielding passion and inspiration of our friend, ted kennedy, and to the bold leadership of senator chris dodd, the senate health committee reached a major milestone by passing a similarly strong proposal for health reform. it's a plan that was debated for more than 50 hours and that, by the way, includes 160 republican amendments, a hopeful sign of bipartisan support for the final product, if people are serious about bipartisanship.

both proposals will take what's best about our system today and make it the basis for our system tomorrow, reducing costs, raising quality, and ensuring fair treatment of consumers by the insurance industry. both include a health insurance exchange, a marketplace that will allow families and small businesses to compare prices, services and the quality so they can choose the plan that best suits their needs. among the choices available would be a public health insurance option that would make health care more affordable by increasing competition, providing more choices, and keeping insurance companies honest. both proposals will offer stability and security to americans who have coverage today and affordable options to those who don't. now, this progress should make us hopeful, but it can't make us complacent. it should, instead, provide the urgency for both the house and the senate to finish their critical work on health reform before the august recess.

america's nurses need us to succeed, not just on behalf of the patients that they sometimes speak for. if we invest in prevention, nurses won't have to treat diseases or complications that could have been avoided. if we modernize health records, we'll streamline the paperwork that can take up more than one-third of the average nurse's day, freeing them to spend more time with their patients. if we make their jobs a little bit easier, we can attract and train the young nurses we need to make up a nursing shortage that's only getting worse. nurses do their part every time they check another healthy patient out of the hospital. it's now time for us to do our part. i just want to be clear -- we are going to get this done. becky and i were talking in the oval office, and becky was talking about we need to buck up people here a little bit here. that's what nurses do all the time. sometimes they buck up patients. sometimes they buck up some

young resident that doesn't know what he's doing. you look at becky, and you can tell she knows what she's doing. what she's saying, it's time for us to buck up, congress, this administration, the entire federal government, to be clear that we've got to get this done. our nurses are on board. the american people are on board. it's now up to us. we can do what we've done for so long and defer tough decisions for another day. or we can step up and take up our responsibilities. in other words, we can lead. we can look beyond the next news cycle and the next generation and the next election, and come together to build a system that works not just for these nurses but for the patients they care for, for doctors and hospitals and for families and businesses and for our very future as a nation. i'm confident it can get done, because we've got a great team behind us, and we are going to be continually talking about this for the next two to three weeks, until we've got a bill off the senate and we've got a

bill out of the house. then we'll deserve a few weeks' rest before we come back and finally get a bill done so we can finally sign it right here in the rose garden. thanks, everybody. >> mr. president -- >> mr. president -- >> mr. president -- >> the president of the united states there with his last pitch for health care reform. meanwhile, the health care reform bill that clerld the senate panel this morning would cost an estimated $600 billion over 10 years. it would mandate coverage for just about everybody, and force employers to help cover the costs. lower-income families would get government subsidies, the measure passed on a party-line vote. and republicans say, well, there's a reason. >> the president had set some goals. the president said that everyone should be covered, that if you like what you have, you can keep it, that we needed to drive down the cost of health care and that it should be paid for. that bill gets an "f." it does not cover any of those things. >> well, republicans opposed the so-called public option for

health insurance, something akin to medicare. they're also against tax hikes and employer mandates. well, they've come to america to get an education and learn about the u.s., but some foreign exchange students say they've seen an awful side of this country. our drew griffin looking in to claims of abuse. we're also taking you live to ft. carson, colorado. why are our soldiers coming back from war and being charged with rape and murder? a shocking army investigation, and ft. carson's commander taking our questions, live, straight ahead. it is, quite simply, the most advanced automobile we have ever created. a car that can help awaken its driver if he begins to doze... keep him in his lane if he starts to wander... even stop itself if he becomes distracted.

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army corporal robert marko went to iraq trained to kill the enemy. he came home, and within months, was accused of raping and murdering an innocent civilian. marko was based at ft. carson, colorado. he's now awaiting trial on charges that he raped and killed a disabled teenager that he met online. and if you think that is horrific, listen to this -- before that killing, the army actually evaluated marko's

mental health three times and cleared him for combat. "the new york times" reports army documents even show that marko believed he would become half-man, half-dinosaur by his 21st birthday. sadly, marko's story and the breakdown of the military's handling of mental health issues is not isolated. today the army has released its report on marko and 13 other cases involving homicide or attempted homicide since 2005. it's part of an ongoing investigation of violent crimes throughout the army as soldiers return from war in iraq and afghanistan. well, the man in charge of ft. carson, major general mark graham, is no stranger to mental health tragedies and the costs of war. his oldest son, jeff, was killed by a roadside bomb in iraq just a year after his other son, kevin, a top rotc cadet at the university of kentucky, took his own life. once again, general graham is boldly talking about what the military has ignored for years. he joins me live from ft.

carson, colorado. general, i appreciate you once again joining us. >> hi, kyra, glad to do it. >> well, let's start with the marko case, you know, he had mental health evaluations three times, still cleared for combat. now, we see what he stands accused of. and i know i've asked you this questions many times in the past, and i want to address it again especially after reading this report. you know, why has behavioral health resources been pushed aside for so many years in the military? >> well, kyra, first, let me tell you, our thoughts and prayers go out to the families that have lost loved ones through tragedy. and i also want to tell you that this study looked at more than one soldier. looked at several different soldiers to make sure we understand and know more about this. i asked the army, the surgeon general of the army, to send out a team to look in-depth at why -- why a cluster of homicides occurred at ft. carson between 2005 and 2008. and, you know, was there something common about these? was there something within each

soldier? and, frankly, what the study came back and told us was there was no single thing that can be identified to do that, to identify a soldier and what they would do in the future. what we did find is risk factors and rickie behavior and the different risk factors, so we've identified risk factors that have caused, because of many conditions, whether it's the stigma, whether it's peer-to-peer stigma, to leadership, to going forward to get help. i think we've made great leaps in bringing soldiers forward to give care. to know it's okay to come forward and get help. i know at ft. carson we have more than doubled the number of soldiers that come forward to get behavioral health care which to me is very encouraging. >> and let's talk about that, because as you read through the report, you find out that a number of these guys had criminal histories. they had issues with substance abuse that was never dealt with. they were suffering from ptsd. i mean, there were a lot of serious mental health concerns, and their leaders, their

commanding officers, knew about it. so, what are you doing now, general, to make sure that these men and women that are getting ready to go off to these wars and also come back, don't stand accused of rape and murder and suicide? >> well, we've done several things. we have several programs in our army. army-level programs as things that woulder starting at ft. carson to make sure we do mental toughness and resiliency training prior to departure and when they get back. we also do something called reintegration plus. we have mobile behavioral health teams that go right down to the units to make it easier for soldiers to have access to care. we also have family life consultants and we serve additional resources for the family life consultants when they get back. so the soldiers can feel comfortable going forward and getting help. we tell them it's a sign of strength and not weakness that go forward to get help. 99% of our soldiers who are volunteers are doing great work. they are fighting the nation's

wars and they're coming back and doing well. there are some that are not. the ability to identify a soldier and to single him out to say this soldier is the one that will do something horrific is frankly hard to do. so, what we do now is look at risk factors. what are the risk factors. ensure the chain of command has the ability to seat risk factors and make sure those soldiers get to care, to make sure they are getting the proper care for these things. >> let's just talk about preventive maintenance here, and you know this, especially the guys that are in these combat teams that are sent out. i mean, they're trained to gil. they're trained to compartmen l compartmentalize, they're trained to basically shove that emotional side sort of away. so, then, they come home, and there has to be something in place that sort of brings them back to that sensitive side that they -- that they had before they left. and so what specifically will be done to do that? because that -- that is extremely necessary when you look at what's happening to them when they come back. >> sure.

absolutely. and, you know, i will tell you, we do have some very good programs. we have a program in the army called reintegration. every soldier that gets deployed comes back and go through a reintegration program in the army. remember, the army is a learning organization. we get better all the time. we're very tough on ourselves, how can we make things better. the reintegration program over time has gotten better. we have reintegration plus. we have mobile behavioral health programs that once they get back off of leave. we have a program called warrior adventure quest and something that we start recently is the resiliency training. it helps soldiers to understand when you have high anxiety when you are on a mission and you come back, what are some skills you can draw on when you come back down, whether you're in a group or in your room by yourself, what are skills you can use to come back down off of that. and we continue to do that. the harmy is getting better and better at that. most soldiers do real well with that, but there are some that have challenges. the key is how can we help

leaders identify the soldiers that are strug leng to make sure they can get to the proper care. >> i also want to point out to viewers, in all fairness, you came to ft. carson dealing with a lot of this. you were really thrown into the fire and you're doing remarkable work there to make a difference. general mark graham, i really appreciate your candidness here today. >> well, thank you, kyra. well, they've come to america to get an education and learn about the u.s. but some foreign exchange students say they've seen an awful side of this story. our drew griffin has been investigating these claims of abuse. i think i'll go with the preferred package.

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living with ex-cons, living in filthy flophouses, living with hardly any food. it's a pure horror story for five foreign exchange students who thought they would be living with all-american families for a year of high school in scranton, pennsylvania. their visit is now part of a criminal investigation, and it doesn't stop there. drew griffin with our special investigations unit is actually breaking this story right now. pretty heart-wrenching. >> now, this becoming a pretty big embarrassment to the u.s. the state department calls for changes in how we welcome foreign students into this country. and when you see what happened to these kids, you're going to understand why. >> reporter: tanzanian was told he'd be living with a prescreened, loving family. he ended up in a second-floor apartment with a 72-year-old man and hardly any food. you're the guy that passed out at track? >> yeah. >> reporter: carlos villarreal came here from colombia for a year in high school. it cost his family $13,000.

>> i ended up in a house living with a couple of ex-convicts with low amounts of food, which i lost a lot of body weight. and in a nonsafe environment. >> reporter: there was a drug bust on this street the week carlos moved in. his hosts? a local reverend who according to the local prosecutor also houses his drug-dealing grandson. did you starve him? were you high? were you not feeding him? >> you think i would have him and not feed him? i have two of my own. he ate -- i bought -- get that camera off me, will you please? >> we signed up for a family that was going to transport us from our homes to school. it was going to feed us three times a day. and basically that was going to be a family. >> reporter: this norwegian girl, who doesn't want us to show her face, found herself in a sort of flophouse and took pictures of the dog droppings

all over the floor. the mother and the daughter slept on the couch and you slept in a bed and there was a man that slept somewhere else in the house? >> an apartment. >> reporter: health officials in scranton condemned part of the house, county officials say the girl and four other students were taken out of their host homes. what happened to these guests of the u.s. is now a criminal investigation. >> they expected to get certain degree of quality of life for the money that they provided, and obviously weren't. that's one possible crime that we'd be looking at as well. >> reporter: this is the local placement agent who placed youngsters, in the homes of ex-cons and rooming houses, and was paid $400 per student. she kicked a local television station out of her home, and so far has not responded to calls and door knocks from cnn. she worked for aspect, a san francisco firm that takes in millions of dollars, bringing students here with a state department approval.

while local prosecutors are looking at charges against aspect and its placement director in scranton, there is a much bigger question going on in washington. >> it's inexcusable that our government didn't do a better job of oversight, and it's inexcusable that this foundation hasn't done the job to provide basic protection for children. >> reporter: aspect gave conflicting responses to cnn. while calling the scranton situation deplorable, it also said, based on its investigation and talks with county officials, no student was abused, malnourished or dehydrated. that, county officials repeatedly told cnn, is just not true. aspect says it fired its local agent and two other of its officers have resigned. but that was after the fact. cnn has learned aspect knew about the problems in scranton, way back in october, when a student sent photos in an e-mail pleading for help, and the state department, which spends $34

million a year on exchange programs? well, it knew, too. >> i'm the father of four daughters, okay? i would never want my daughter, nor would any parent want their daughter or son, exposed to these kind of conditions. >> reporter: senator casey said e-mails show the state department knew about the problem since last october and did something for months, and then the state department allowed aspect, the agency that placed the students in these homes, to investigate itself. p.j. crowley, assistant secretary of state for public affairs, says that was a mistake. >> i think -- i think in large respect, because we put too much emphasis on the program agents to police themselves, we recognized that that has not worked properly. >> reporter: danielle grijalda, who has been tracking exchange student abuse for years, said the typical scenario kids complain, the state department does nothing, and agencies around the country keep

recruiting students. >> it's self-regulated, unmonitored, underreported. students becoming raped, placed in the homes of convicted felons, placed in the homes of registered sex offenders, come to the united states and lose, 20, 30, 40 pounds. >> reporter: this boy says, despite the living conditions, he loved his time in the u.s. >> all the people are good. >> reporter: he plans to come back, but next time, he says, not to a home where he needs to wonder where his next meal is coming from. now, the state department is sanctioning that company, trying to -- and also trying to do a better job of monitoring these agencies, but, kyra, mean now an estimated 30,000 students are on their way for another year in the u.s. through these programs, and a lot of the cricks, as you heard, are not monitored. >> that's ridiculous. the state department shouldn't allow all this money being paid to the programs and you have the kids starving and even the accusations of rape. this is ridiculous. there has to be something done within that department. >> exactly.

and the state department is reviewing that. they've asked for a full insp t inspector general's report, how they can make this better. but the record clearly shows that this has been a problem for years. kids complain, but they're foreign kids, so the threat of just sending you back home keeps a lot of them basically in check. >> so, then, you wonder why the young kids are going back overseas saying hate america and america is cruel, look at how they are treated. that's ridiculous. >> and some of these programs are designed specifically to those kids we want to tell america is not that bad, muslims in africa, you know, eastern bloc, former soviet union kids, so it's really -- it's really a shame. >> wow, drew, appreciate the report. we'll develop follow-up. it may be the world's longest job interview. but, first, edge of discovery. >> reporter: with every step you take, the body creates energy

that usually goes to waste. until now. >> this particular device is designed to capture energy while you're walking. >> reporter: it's called the bionic energy harvester. it might look like an athletic knee brace. but a closer inspection reveal wires and a generator that harness power from the natural motion of walking. >> muscles are the powerhouse of the body, so they're producing the mechanical energy initially, and through the device that's turned into electrical power, like a battery charger basically. >> reporter: simply strap on the two-pound brace and get moving. with each step the device transfers the energy from the hop in your step to batteries. pop those in a digital camera or cell phone, and the more you walk, the more you can talk. >> for walking for only one minute you can produce about 20 minutes of time on a typical cell phone. that's a lot of power. >> reporter: it's still in the dove development phase, but researchers are hoping to have it available soon. cutting the power cord could give you a lot more space to

roam. >> you become the juice for your devices and for many people what that also means is freedom. >> reporter: gary tuchman, cnn. %

well, the right to bear arms is a right and abortion, the separation of powers. heavy stuff for the second day of "q" and "a" for the confirmation hearings and judge sonia sotomayor. it's due to start live here on cnn. in the meantime, a variation on the question that every high court nominee faces. >> the white house goes on to say "white house press secretary said the president did not ask sotomayor specifically about abortion rights during their interview." is that correct? >> yes. it is absolutely correct. i was asked no question by

anyone, including the president, about my views 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 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 a challenge to roe 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. >> the nominee and senators are due to come back from their lunch break at the top of the hour. you'll see them live when they do that. a broken elbow kept her out of circulation for weeks, but hillary clinton wants the whole world to know that she's back. the secretary of state is speaking right now to the council on foreign relations. an appearance that her aids are calling a major address. her subject is so-called smart power, a blend of defense, diplomacy, and development.

>> -- in the world today. now, some see the rise of other nations and our economic troubles here at home as signs that american power has waned. others simply don't trust us to lead. they view america as an unaccountable power, too quick to impose its will at the expense of their interests and our principles. but they are wrong. the question is not whether our nation can or should lead, but how it will lead in the 21st century. rigid ideologies and old form a formulas don't apply. we need a new mindset about how america will use its power to safeguard our nation, expand shared prosperity and help more people in more places live up to their god-given potential. >> clinton's singling out iran for a warning. engage the u.s. now over nukes or risk further sanctions. well-planned and executed without flaw, except for one

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p) combines two powerful medicines for fast relief of your diarrhea symptoms, so you can get back out there. imodium. get back out there. a couple of new tests show promise for early detection of

alzheimer's. one of the test assesses changes in brain size and memories skills. researchers say by using it, they were able to accurately identify 95% of people in the early stanls ges of the disease. the second looks at body chemistry by measuring glucose levels. the findings are part of a five-year, $60 million study hoping to pinpoint biological markers to identify and track the disease. updating the murder case where a wealthy couple with 14 children, many with special needs, was gunned down in their home. federal drug agents, now part of the case. escambia county sheriffs not saying a word about it. the story in pensacola. they have made seven arrests. they are looking for more. what's the deal with the dea getting involved? >> reporter: we have known for several days that various federal agencies have been involved as part of this investigation. authorities here telling us that

as they have investigate d this other things have come up. we can't get into what those things are. we presume that is part of what brings in the federal help. authorities say they have arrested the seven men that were at the compound where the couple was killed last week. they are still looking for a woman by the name of pamela la verne long. they say that they had been able to speak with her early on. for the last several days, they have not been able to contact her. authorities very tight-lipped as to what extent she might be involved, if she is involved at all. they do say they want to get her picture out there in hopes that someone out there might be able to call them and tip them off as to where she is. in addition, there is another person that they are interested in speaking with but we've got no information on them but it did open up an interesting

theory as to what investigators are looking into. they are operating under the belief that perhaps someone else should have been responsible for turning off the elaborate surveillance system at the billings compound. they are wondering how if they practiced, these seven suspects, as investigators said they did, why wasn't this security system turned off. they believed that someone was responsible for that. for some reason, didn't follow through. about who that person is, a male, female, what ever. they are tight-lipped as to who that person might be. >> ed lavandera, we will continue to follow the story. we want to send it back to our gavel to gavel coverage of sonya

sotomayor's confirmation hearing. thanks very much. we are going to continue our coverage in these historic hearings before the senate judiciary committee. sonya sotomayor is getting ready to be confirmed, we assume. looks like she has plenty of veets there. the democrats have 60 votes already. it doesn't look like any of them, at least so far, are waffling or wavering. pretty soon, we will be seeing sonya sotomayor walking into the judiciary hearing room, the chairman will gavel this meeting to order patrick lay hey, the senator from vermont. two senators are scheduled to ask questions, arlen specter, former chairman of the judiciary committee will be asking the questions first and then al franken, the newest senator, el be joining in.

al franken, the former comedian, the comedy writing, the junior senator from minnesota. both of them have 30 minutes in this the first round. once they are finished, the first round of questioning is over with. the chairman, patrick lahey, told us earlier, that they would then go into recess and go into another room for a closed-door meeting involving sonya sotomayor and representatives from the fbi for the background check, the vetting process, a traditional part of all of these confirmation hearings. only after that session, that closed-door meeting is over with, will they then reconvene in this room and resume round two. during round two, all 19 senators will have a maximum of 20 minutes each for questioning although the chairman is appealing, if you don't need 20 minutes, it would be good if you do 10 minutes or five minutes or just move on. we have had a lot of minutes already of questioning. our senior congressional correspondent, dana bash, is

there over at the hart center office building. are we getting any indication they might be able to wrap this up today or will it continue to tomorrow? >> reporter: on the democratic side, they are hoping to wrap it up today. i was talking to a senior aid who said they are trying to figure out with the republicans how much each of the seven republican senators want to speak and basically the strategy on the democratic side is they are going to let the republicans, if they want to have, if all seven want to have those 20 full ments, the democrats will dispurse a democratic senator in between. what they said, this aide i talked to said if it looks like they are going to have to go until 10:00 tonight, they will break and come back tomorrow morning to do the final round of questioning with the judge. they are hoping they won't do that. tomorrow, there is an additional day, a full day, of hearings. at least right now, it is not scheduled to be with the judge. it is going to be a lot of

outside witnesses for both the majority and the minority, wolfe. >> those witnesses basically are all in washington. there will be those who support her, those who don't support her. that was scheduled for tomorrow. we'll see how much longer they will be able to continue this today as we await the chairman to come in to the hearing room and the witness in this particular case, the nominee, the supreme court nominee, sonya sotomayor. let's talk about what has happened so far on this day and look ahead to arlen specter, who is going to be the next questioner followed by al franken, the final questioner in this the first round. john king is here together with the best political team on television. we have arlen specter. you never know what he is going to ask, because is a maverick, an independent kind of guy. >> and he is i asenator who is not quite happy with his lot on the committee. when he decided to leave the republican party and join the democratic party, he was hoping he would be treated better and

get some seniority on this committee which he has so long served and was once the republican chairman. he is not happy as being the second to the least. put that aside for a second, even when he was the chairman, he is known for being a bit unpredictable, maverick, asking some air okrchaic questions aboe law. when he was on the republican side, he was often the odd man out on that issue. it will be interesting to see if he follows up on that. this is a new role for senator specter. he has been on the committee a long time. his seniority has been questioned. he is up for re-election next year for the first time as a democrat. he is in an interesting spot and this will be quite interesting. >> this is not a live picture but this is earlier. those are the two remaining senators, al franken on the right and arlin specter on the left. specter will be going first. al frank ken delivered an openi

statement on monday. sonya sotomayor has just walked into the room. she is sitting down right now. she is going to get herself ready to face, i assume, an hour of questioning, half hour from specter and half an hour from al franken. >> he was very serious in his opening statement. we kept expecting him to say, live from new york, it's saturday night when he heard him but i think it is going to be the senate's first time to get sort of a look at the new senator from minnesota and he is going to play it straight. >> one point about arlen specter, he is the leading support ter of cameras in the courtroom and has often pressed the supreme court justices to allow cameras in the supreme court. that is something he has asked nominees. they tend to waffle on that issue. the departure of david suit ter

fr may be a turning point. he said there would be cameras over his dead body. >> she is now talking to her top supporters. her family members, the man with the light suit is her brother, a physician who lives in syracuse, new york. the two of them were born in the bronx, raised by the mother. i don't see the mother in that picture, although, she has been there throughout all of these hearings. she credits, sonya sotomayor, she credits her mom for raising the two of them and achieving what they have achieved. both of them very accomplished. what are you going to be looking for, candy crowley as we get ready for specter and franklin? >> i think we can pretty much assume these will befriendly questions. usually what happens is when the democrat comes along and it is a democratic nominee, they bat cleanup. if there is anything that bothered them in the questions right before, they will come back to it. if it is something that a

republican said, even during the break, they will come back and sort of clarify and move on. >> all right. i am just going to say because the chairman is convenienting this session, let's listen in. >> when she first was interested in comparing notes with my wife, they both agreed that that's when nurses truly had to be nurses. now, they are nurses plus with the advances in medicine. i just discussed this again with senator sessions. we will go first to senator specter and then to senator franken and then we will recess and go into the other room for a closed session. senator specter is former chairman of this committee, one of the most senior members of the senate, one of the most experienced, senator specter? >> thank you, mr. chairman.

welcome back, judge sotomayor. you have held up very well in all of the proceedings in the senate. this is the most exacting. years ago, as you know, in case after ashkraft versus tennessee, they said it was unconstitutional to put a suspect to grilling. that doesn't apply to nominees. my wife, joan specter, says it is a lot harder to listen to me than it is to make a speech herself. you are engaged. i think beyond doing very well on stamina, you have shown intellect and humor and charm

and pride and also modesty. so it's been a good hearing. notwithstanding all of those qualities, the constitution says we have to decide whether to consent. and that requires the hearing process and the questions. before going into a long list of issues, which i have on the agenda, separation of power and wireless wiretaps and secret cia programs and the american for disability act and the woman's right to choose and the environmental protection agency, the clean water act, the television, the second amendment, i would like to make an observation or two. there has been a lot of talk about a wise latino woman. i think that this proceeding has

tended to make a mountain out of a molehill. we have had a consistent line of people who are nominees who make references to their own backgrounds. we all have our perspective. justice o'connor talked about her life experience. justice alito talked about his family suffering from ethnic slurs. justice thomas, pinpoint, georgia, emphasized, talked about putting himself in the shoes of other people. justice scalia talked about being in a racial minority. the expectation would be that a woman would want to say something to assert her confidence in a country that denied women the right to vote

for decades, where there is still discouragement of people in ethnic backgrounds. just this month in a suburb of philadelphia, hispanic children were denied access to a pool for whites, as were african-american children. so i can see how someone would take bride in being a latino woman and assert herself. a lot has been made of the issue of empathy but that characteristic is not exactly out of place in judicial determinations. we've come a long way on the expansion of constitutional rights. oliver wendell holmes, famous statement is that the life of the law is experience, not logic. justice cardoza in connecticut talked about changing values and

the warren court changed the constitution practically every day, which i saw being at the district attorney's office. it would change search and seizure, confessions, miranda, right to counsel. who could have thought it would take until 1963 to have the right to counsel. we have heard a lot about the nomination proceeding of judge bourque. they have tried to make bourque into a verb. anybody that looks at that record will see that it is very, very different. we had a situation where he was an advocate of original intent from his days writing the law review article in the indiana law review. how can you have original intent when the 18th amendment was

written by the senate on equal protection with the senate galleries, which were segregated? or you have judge bourque who believed that equal protection applied only to race and ethnicity, didn't even apply to women. it was a very, very thorough hearing. i spent beyond the hearing days in three long sessions, five hours with judge bourque. so it was his own approach to the law which resulted there. you had an evolution of constitution law which i think puts empathy in an okay status, an okay category. i now want to go to issues. i begin with an area of cases which the court has decided not to decide. those cases can be even more

important than many of the cases which the court decides. the docket of the court at the present time is very different from what it was a century ago. 1886, the docket had 1396 cases decided 451. 100 years later, there were only 161 signed opinions in 1985. 2007, only 67 signed opinions. during his confirmation hearings, chief justice roberts said the court could contribute more to the clarity and uniformity of the law by taking more cases. judge sotomayor, do you agree with that statement by chief justice roberts? >> i know, senator specter, that

there is questions about many people, including senators and yourself of justice roberts and other nominees about this issue, can the courts take on more to the extent that there is concern about it, not that public opinion should drive the justices to take more cases just to take them. but i think what justice roberts was saying is, the court needs to think about it's processes to ensure that it is fulfilling -- >> judge sotomayor, how about more case sns. >>. >> well, perhaps i need to explain to you that i don't like to make statements on what i think the court can do until i have experienced the process. >> let me move on to another question. one case that the court did not

get involved a terrorist surveillance program, which i think arguably posed the greatest conflict between congressional powers under article one enacting the foreign intelligence surveillance act, which provided for the exclusive way to get wiretaps. the president disregarded that in a secret program called the terrorist surveillance program. didn't tell the chairman of the judiciary committee, which is the required practice or accepted practice. didn't tell the intelligence committees, where the law mandates that they be told about such programs. it was only disclosed by "the new york times." those practices confront us today with reports about many other secret cases not diz

closed. the federal district court in detroit found the terrorist is your vail lanunconstitutional. the dissent pretty conclusively had the much better. the supreme court denied certiorari. didn't take up the case to the extent of deciding whether it shouldn't take it because of lack of standing. i wrote you a letter about this, wrote a series of letters and gave you advance notice that i would ask you about this case. i am not asking you how you would decide the case but would you agree that the supreme court should have taken that kind of a major conflict on separation of powers. >> it must be very frustrated to

you. >> it sure is. i was the chairman who wasn't notified. >> she was the ranking member who wasn't notified. >> i can understand not only congress or your personal frustration when sometimes citizens, when there are important issues they would like the court to consider. the question becomes, what do i do when you give me the honor to serve on the court. if i say something today, is that going to make a statement about how i am going to prejudge someone else's -- >> i'm not asking you to prejudge. i would like to know your standards for taking the case, if you have that kind of a monumental historic conflict, the court is supposed to decide conflicts between the executive and legislative branchs. how can it possibly be justified not to take that case.

there are often, from what i understand and my review of supreme court actions and cases of situations in which they have or have not taken cases and i have read some of their reasoning as to this, i know that with some important issues, they want to make sure that there isn't the procedure bar to the case of some type that would take away from whether they are, in fact, doing what they would want to do -- >> was there a procedure bar? you have had weeks to mull that over, because i gave you notice. >> senator, i'm sorry. i did mull this over. my problem is, that without looking at a particular issue and considering the style, the discussion of potential colleague as to the reasons why a particular issue should or

should not be considered. >> i can tell you are not going to answer. maybe we should move on. >> the questioning by arlen specter is continuing. sonya sotomayor answering those questions. we will continue to watch what's going on. we are standing by for al franken, the junior senator from minnesota. he is up next. we will have his questioning as well including more from arlen specter and sonya sotomayor. cnn.com is streaming all of this live. you can see all of it uninterrupted. we will take a quick break and our kanch wi our coverage will continue after this.

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sonya sotomayor. the issue is separation of powers between the executive and legislati legislative branchs. the supreme court found a new test called con gruns and proportionality. up to that time, judge harlan's judgment on a rational basis for what congress would decide would be sufficient. and here for the benefit of our television audience, we are talking about a record that congress maintains. take the americans for disabilities act for example where there ace a task force of field hearings in every state attended by more than 30,000 people, including thousands who had experienced discrimination with ruffle 300 examples of discrimination by state governments. notwithstanding that vast record, the supreme court of the

united states in alabama versus garrett found in title 2 of the americans with disability act unconstitutional. justice ska l justice scalia said in dissent that it was a flabby test, an invitation to judicial arbitraryness and policy-driven decision making. the other title 1 of the americans with disability act in lane versus tennessee, the court found it constitutional on the same record. in the second round, if we have time, i will ask you, give you some advanced notice, although i wrote you about these cases, if you can find the distinction on the supreme court's determination but my question to

you is, look can at this brand new standard of proportionality and congruence, whatever those words mean. if we have time in the second round, i will ask you to define them. there are other questions i want to come to. do you agree with justice scalia, that it is a flabby test and with having such a vague standard, the court can do anything it wants and really engages in policy-driven decision making, which means the cou court in effect legislates. >> the question of whether i agree with the view of a particular justice or not is not something that i can say in terms of the next case and the

next case that the court may look at. >> not the next case. this case. you have these two cases. they have the same factual record. the supreme court in effect legislates, tells us what is right and what is wrong on the standard no nobody can understand. >> as i understand the congruence and poe at, it is the supreme court's holding that there is an obligation on the court to ensure that congress is working, is legislating within its legislative powers. the issue is not and these are section five cases essentially, which are the clause of the constitution under the 14th amendment that permits congress to legislate on issues involving

violations of the 14th amendment. the court in those cases has not said that congress can't legislate. what it has looked at is the form of remedy congress can order. >> that doesn't tell us how to legislate. let me move on to a voting rights act case and just pose the case and i'll ask you about it in the next round. when chief justice roberts testified at his confirmation hearings, he was very differential to the congress, not so, i might add, when he decided the voting rights case but when he appeared here three years ago, he said this and it is worth reading. i appreciate very much the differences of institutional confidence between the judiciary and the congress when it comes to basic questions of fact finding, development of a record

but also the authority to make the policy decisions about how to act on the basis of a particular record. it's not just disagreement over a record. it is a question of whose job it is to make a determination based on the record. as a judge, you may have the beginning to transgress into the area of making a law is when you are in a position of re-evaluating legislative findings, because that doesn't look like a judicial function. that's about as deferential as you can be when you are a nominee. when chief justice roberts presided over the voting rights case, he sounded very, very different. my question to you is, do you agree with what chief justice roberts said when he was just judge roberts, that is an area of making laws to transgress into what congress has done by

way of finding the facts? >> i would find it difficult to agree with someone else's words. i can tell you how much i understand the deference that congress is owed. i can point to you at least to two cases and there are many, many more, that shows how much i value the fact that we are courts that must give deference to congress in the fields that are within its constitutional power. >> do you agree with chief justice roberts? i sent you that quotation a long time ago and told you i would ask you about it. do you agree with him or not? >> i agree to the extent that when talking about the deference that congress is owed. i can't speak for what he intended to say by that. >> not what he intended to say. what he did say. >> i heard what he said, sir, but i don't know what he

intended in that description. i do know what i can say, which is that i do understand the importance to congress' factual findings, that my cases and my approach in my cases reflect that. i have had any number of cases where the question was deference to congressional findings and i have upheld statutes because of that deference. >> all right. they are continuing questioning. arlen specter and sonya sotomayor. we will take a quick break and continue our coverage on the other side. we are watching these historic senate confirmation hearings for sonya sotomayor. up next, by the way, after arlen specter, isal franke al franken senator from minnesota. vñvñvñvññ

arlen specter delivering a lecture on why it is critical to have television cameras inside the courtroom. >> you had to be a chairman of the committee to get a seat inside the chamber. the supreme court decides all the cutting-edge questions of the day, the right to choose, abortion, death penalty, organized krirnlgs every cutting edge question. bush versus gore was probably one of the biggest questions, more than 100 million people voted in that election and the presidency was decided by one vote. justice scalia had this to say

about irreparable harm. the counting of votes that are unquestionable legalality does in my view, referring to president bush, does harm to the country upon casting a cloud on what he claims to be the legitimacy of the election. permitting the court to proceed on that erroneous basis will permit an accurate recount from being conducted later. it is hard to understand what recount there was going to be later i wrote about it at the time saying that i thought it was an atrocious accounting of irreparable harm, hard to calculate, hard to calculate

that. my question, judge sotomayor, shouldn't the american people have access to what is happening in the supreme court to try to understand it, to have access to what the judges do by way of their work load, by way of their activities when they adjourn in june and reconvene in october, this year in september? wouldn't it be more appropriate in a democracy to let the people take a look inside the court through television? the supreme court said that it wasn't just accused that had a right to a public trial, it was the present and the public as well. why not televise the court? > >> as you know, when there have

been options for me to participate with cameras in the courtroom, i have. as i said to you when we met, senator, i will certainly relay those positive experiences, if i become fortunate enough to be there to discuss it with my colleagues. that question is an important one, obviously. there is legislation being considered both by congress or has been considered by congress at various times. there is much discussion between the branchs on that issue. it is an ongoing dialogue. it is important to remember that the court, because of this issue, has over time made public the transcripts of its hearings quicker and quicker. if i'm accurate now, it used to take a long time for them to make those transcripts available. now, they do it before the end

of the day. it's an ongoing process of discussion. >> thank you, judge sonya sotomayor. thank you, mr. chairman. >> senator specter, and the last of this round will be senator franken, the newest member of the committee. senator, i didn't officially welcome you the other day as i should have when we have new members. welcome to the committee. i offer you congratulations and condolences at the same time! >> i will accept the congratulations. >> that was most heartfelt. i am glad you are hear. please go ahead. >> thank you, mr. chairman and thank you judge sonya sotomayor for sitting here so patiently and for all your thoughtful answers throughout the hearing. before lunch, our senior senator from minnesota, amy klovachar asked you why you became a prosecutor and you mentioned

perry mason i was a big fan. i watched it every week with my dad, my mom, and my brother. we would watch the clock. we knew when it was two minutes to the half hour, that the real murderer would stand up and confess. it was a great show. it amazes me that you wanted to become a prosecutor based on that show. because, in perry mason, the prosecutor, burger, lost every week. with one exception, which we will get to later. but i think that says something about your determination to defy the odds. while you were watching perry mason in the south bronx with your mom and your brother, i was

watching perry mason in suburban minneapolis with my folks and my brother and here we are today. i'm asking you questions because have been nominated to be a justice of the united states supreme court. i think that's pretty cool. as i said in my opening statement, i see these proceedings both as a way to take a judgment of you and of any nominee's suit ability for the high court but also as a way for americans to learn about the court and its impact on their lives. right now, people are getting more and more of their information on the internet, newspapers, television, blogs,

radio. americans are getting all of it on line. it plays an essential role in our democracy by allowing anyone with a computer connected to the internet to publish their ideas, their thoughts, their opinions, and reach a worldwide audience of hundreds of millions of people in seconds. this is free speech. this is essential to our democracy and to democracy. we saw this in iran not long ago. now, judge, you are familiar with the supreme court's 2005 brand x decision, are you? >> i am. >> then you know that brand x deregulated internet access services allowing service providers to act as gate keepers to the internet, even though the

internet was originally government funded and built on the notion of common carriage and openness. we have already seen examples of these companies blocking access to the web and discriminating on certain uses of the internet. this trend threatens to undermine the greatest engine of free speech and commerce since the printing press. let's say you are living in duluth, minnesota, and you only have one internet service provider, the big megacorporation and not only are they the only internet service provider, but they are also a content provider, they own newspapers, they own tv networks or network. they have a movie station. they decide to speed up their own content and slow down other

content. the brand x decision by the supreme court allows them to do this. this isn't just duluth. it is moorhead, minnesota, rochester, minnesota, youngstown, ohio, it's denver, san francisco and, yes, it is new york. this is frightening. frightening to me and to millions of my constituents, lots of my constituents. internet connections use public resources, public airways, public rights of way. doesn't the american public have a compelling first amendment interest in assuring that this can't happen and that the internet stays open and accessible. in other words, that the internet stays the internet?

>> many describe the telephone as a revolutionary invention. it did change our country dramatically. so did television. and its regulation of television and the rules that would apply to it were considered by congress and those regulations have because congress is the policy chooser on how items related to interstate commerce and communications operate. that issue was reviewed by the courts in the context of the policy choices congress made. there is no question in my mind as a citizen, that the internet

has revolutionized communications in the united states. there is no question that access to that is a question that society, that our citizens, as well as yourself, are concerned about but the role of the court is never to make the policy. it's to wait until congress acts and then determine what congress has done and its constitutionality in light of that ruling. brand x, as i understood it, was a question of which government agency would regulate those providers. the court, looking at congress' legislation in these two areas, determined that it thought it did in one box and not the other, one agency instead of

another. >> is this title 1 and title 2 or as i understand it title 2 is subject to a lot of regulation? and title 1 isn't. >> exactly but the question was not so much stronger regulation or not stronger regulation, it was which set of regulations given congresses choice controlled. obviously, congress may think that the regulations the court has in its holding interpreted congress' intent and that congress thinks the court god it wrong. we are talking about statutory interpretation and congress' ability to alter the court's understanding by amending the statute if it chooses. this is not to say that i minimize the concerns you expressed.

access to internet given its importance in everything today. most businesses depend on it. most individuals find their information. the children in my life virtually live on it now. so its importance impli kats a lot of different questions, freedom of speech, freedom with respect to property rights, government regulation. there is just so many issues that get implicated by the internet that what the court can do is not choose the policy, just has to go by interpreting each statute and try to figure out what congress intends. >> i understand that. isn't there a compelling first amendment right here for people? no matter what congress does and i would urge my colleagues to take this up and write

legislation that i would like but isn't there a compelling, overriding, first amendment right here for americans to have access to the internet? >> rights by a court are not looked at as overriding in the sense that i think a citizen would think about it. should this go first or should a competing right go second? rights are rights. what the court looks at is how congress balanced those rights in a particular situation and then judges whether that balance is within constitutional boundaries. holding one more compelling than the other suggests that there is sort of -- property interests are less important than first amendment interests. that's not the comparison a court makes. the comparison a court makes

starts with what balance does congress choose first. we will look at that and see if it is constitutional. >> so we got some work to do on this. i want to get into judicial activism. i brought this up in my opening statement. as i see it, there is kind of an impoverishment of our political discourse when it comes to the judiciary. i am talking about politics, when candidates or office holders talk about the -- what kind of judge they want. it's very often just reduced to, i don't want an activist judge. i don't want a judge that's going to legislate. that's sort of it. that's it. it's a 30-second sound bite. as i and a couple other senators mentioned during our opening statements, judicial activism has become a code word for judges that you just don't agree

with. judge, what is your definition of judicial activism? >> it's not a term i use. i don't use the term because i don't describe the work that judges do in that way. i assume the good faith of judges in their approach to the law, which is that each one of us is attempting to interpret the law according to principles of statutory construction and other guiding legal principles and to come in good faith to an outcome that we believe is directed by law. when i say we believe, hopefully, we all go through the process of reasoning it out and coming to a conclusion in accordance with the principles of law. i think you are right that one

of the problems with this process is that people think of activism as the wrong conclusion in light of policy. but hopefully judges and i know that i don't approach judging in this way at all, are not imposing policy choices or their views of the world or their views of how things should be done. that would be judicial activism in my sense if a judge was doing something improper like that. but i don't use that word because that's something different than what i consider to be the process of judging, which is each judge coming to each situation frying to figure out what the law means. applying it to the particular facts before that judge. >> you don't use that word or that phrase, but in political

discourse about the role of the judiciary, that's almost the only phrase that's ever used. i think that there has been an ominous increase in what i consider judicial activism of late i want to ask you about a few cases and see if you can shed some light on this for us and for the people watching at home or in the office. i want to talk about northwest austin utivi austin utility. the voting rights case and senator carden mentioned it but he didn't get out his pocket constitution, as i am. the 15th amendment was passed after the civil war. it specifically gave congress the authority to pass laws to protect all citizens' right to vote. it said in section 1, amendment

15. section 1, the right of citizens of the united states to vote shall not be denied or abridged by the united states or by any state on account of race, color, or previous condition of certificatevy tud. section 2. the congress shall have power to enforce this article by appropriate legislation. the congress. well, congress used that power, the power vested in them under section 2 when it passed the voting rights act of 1965. now, the voting rights act has a specially strong provision, section 5, that requires states with a history of discrimination to get preapproval from the justice department on any changes that they make in their voting regulations. congress has reauthorized this four times, as recently as the last time was 2006 and the senate supported it by a vote of 98-0. every single senator from the

state covered by section 5 voted to reauthorize. so now it is 2009. we have this case, northwest austin utility district number one and justice thomas votes to hold section 5 unconstitutional. he said it went beyond the mandate of the 15th amendment because it wasn't necessary anymore. that's what he said. now, when i read the 15th amendment, it doesn't say -- it doesn't contain any limits on congress' power. it just says that we have it. it doesn't say if necessary, the congress shall have power to enforce this article. it just says that we have the power. so it is my understanding of the 15th amendment, which contains a very strong, very explicit and unambiguous grant of power to the congress and because of that, the courts should pay greater deference to it. my question is, is that your

view? >> as you know, some of the justices in reaching that decision expressed the view that the court should take up the constitution at of the voting rights act in review of it's continuing necessity just as thomas expressed his view. that very question, given the decision and the fact that it left that issue open is a very clear indication that that's a question that the courts are going to be addressing. if not immediately, the supreme court certainly the lower courts. and so expressing a view, agreeing with one person in that decision or another would suggest that i have made a prejudgment on this question. >> so it means that you are n

going to tell us? i didn't mean to finish your sentence. i think that's where you are going. >> no, no. all i can say to you is, i have one decision on the voting rights act and not the recent reauthorization by congress from a prior amendment where i suggested that these issues needed -- issues of changes in the voting rights act should be left to congress in the first instance. my jurisprudence shows the degree to which i give deference to congress finding whether in a particular situation that compels or doesn't or leads to a particular result is not something that i can opine on, because particularly the issue you are addressing right now, is

likely to be considered by the courts, the aba rule says, no judge should make comments on the merits of any pending or impending case. this clearly would be an impending case. >> okay. it's fair to say, though, in your own decision, you gave deference to congress, just like you answered my neutrality, the same thing, it's up to congress. it feels like this is very explicitly up to congress? >> i gave defrerence to the exat language that congress had used in the voting rights act and how it applied to a challenge in that case. >> okay. now, voting to overturn the federal legislation to me at least seems to be one definition of what people understand as judicial activism. i want to talk about some cases that i have seen that i think showed judicial activism

functioning on a more pernicious level. first, let's take a look at a case called gross versus fbl financial services that the supreme court issued last month. are you familiar with that? >> i am. >> gross involved the age discrimination and employment act or adea. before gross, you could bring in age discrimination suit whenever you could show that age was one of the factors an employer considered in choosing to fire you. when the supreme court agreed it hear the case, it said it would consider just one question, whether you needed direct evidence of age discrimination to bring this kind of lawsuit or whether indirect evidence would suffice. that's the issue. they said they would consider when they took the case. but, when the supreme court handed down its decision, it ruled on a much larger matter. whether a worker could bring a suit under adea if age was only one of several reasons for being

demoted or fired. the supreme court barred these suits saying that only suits alleging that age was the determinative factor for the firing, only those could be brought under the adea. this change has significantly eroded workers rights but making it harder for them to defend themselves from age discrimination, included any fired just before they would have seen a large increase in their pension. so you weren't fired because you were too old. you were fired because your pension is going to increase. so this is a big deal. when you go to court to defend your rights, you have to know what rights you are defending. the parties in the gross case thought they were talking about what kind of evidence was necessary in a discrimination suit. then, the court just said, nope, we are banning that kind of suit all together. i think that's unfair to

everyone involved. especially unfair to the man trying to bring the discrimination suit. let me ask you a couple questions on this. first, as an appellate court judge, how often have you decided a case on an argument or a question that the parties have not briefed? >> i don't think i have because, to the extent that the parties have not raised an issue and the circuit court, for some reason, the panel has thought that it was pertinent, most often that happens on questions of jurisdiction, can the court hear this case at all, then you issue or we have issued a direction to the parties to brief that question so it is briefed in part of the argument that's raised. there are issues that the

parties have that the briefing itself raises the issue. so it's generally the practice at least on the second circuit to give an opportunity to go forward on the question. we also have a procedure on the circuit that would give a party to be heard that they can file the pe tension for rehearing, which is the panel enters a decision that the party disagrees with and thinks the court has not given adequate opportunity to present its argument. then it can file that at the circuit. i don't have -- i am familiar with the northwest case. i am familiar with the holding of that case. i am a little less familiar and didn't pay at much attention to the briefing