consistently argues that this ideal and commitment i believe every judge is committed must be to put aside their personal experiences and policies and make sure that person before then gets a fair day in court. ..

the send their fireman into a dangerous building the dezaun zaire, and they panel for gilday did oral exams. it wasn't all written, consisting of one hispanic and one african-american and white. and according to the supreme court, this is what the supreme court held. the new haven officials were careful to ensure broad racial participation in the design of the test and its administration. the process was open and fear. there was no genuine dispute that the examinations were job-related inconsistent with business purposes. business necessity. , after the city saw the results

of the exam, it throughout those results because "if not enough of one group did well enough on the test less "the supreme court then found that the city, and i quote, rejected the test results solely because of the hyder scoring candidates were white. after the tests were completed, their broad racial results became-- the garav ratio results became the predominant rationale for the city's refusal to certify the results. so, you have stated that your background of vexed the facts that you choose to see was the fact that the new haven firefighters had been subject to discrimination, one of the facts you chose not to see in this case? >> no sir. the panel was composed of me and to other judges in a very

similar case, the seventh circuit in an opinion offered by judge easterbrook-- i am sorry. i misspoke. it was in judge easterbrook. eight was judge posner are, so the case in an identical way. and neither judge-- i have confused some statements that senator leahy made with this case and i apologize. in a very similar case, the sixth circuit approach the very same issue innate same way. so a variety of different judges on the appellate court were looking at the case in her light of the established supreme court and second circuit precedent and determined that the city facing potential liability under title title vii could choose not to certify the test if it believed an equally good test could be made with a different impact pawn affected groups. the supreme court, as it is its

prerogative in looking at a challenging, established a new consideration or a different standard for the city to apply. and that is, was there substantial evidence that they would be held liable under the law? that was a new consideration. our panel didn't look at that issue that way because it was and argued to us in the case before us, and because the case before us was based on existing precedence. so, it is a different test. >> judge, there was apparently unease within your panel. i was really disappointed and i think a lot of people have been that the opinion was so short it was pro-curiam. idid not discuss this serious legal issues that the case raised, and i believe that is legitimate criticism of what you

did. but it appears according to stuart taylor, a respected legal writer for the "national journal," that stuart taylor concluded that it appears that judge thubron this was concerned about the outcome of the case, was not aware of it because it was pro-curiam unpublished opinion but it began to raise the question of whether we-- a readering should be granted. you say you are bound by the superior authority but the fact is when the question of rehearing that the second circuit authority that you say covered the case, some say it didn't cover so clearly, but that was up for debate and the circuit voted and you voted not to reconsider the prime case. you voted to stay with the decision on the circuit and in fact your vote was the key vote and you voted with judge

carbanes. had he voted with him, you could have changed that, so wintrier if you were not bound by that case as you must have agreed with it, and agreed with the opinion, and stayed with it until it was reversed by the court. let me just mention that. >> is the question? >> well, that was a response to some of what you said mr. chairman because he misrepresented factually the posture of the case. >> well, i obviously will disagree with that but we will have a chance to vote on this issue. >> in 1997 when you came before the senate and i was the new senator i ask you this. in a suit challenging a government racial preference in "up or set aside, will you follow the supreme court decision in adarand and subject,

and subject racial preferences to the strictest judicial scrutiny." in other words, i ask you would you follow the supreme court's binding decision in adarand versus vignette? in adarand the supreme court held that all governmental discrimination including affirmative action programs that discriminated by grace of an applicant must face strict scrutiny in the courts. in other words, this is not a light thing to do. when one race is favored over another, you must have a really good reason for it or it is not acceptable. after adarand the government agencies must prove there is a compelling state interest in support of any decision to treat people differently by race. this is what you answered. in my view the adarand court correctly determined that the same level of scrutiny, strict scrutiny applies for the purpose of evaluating and

constitutionality of all government classifications, whether at the state or federal level based on race." so, that was your answer and it deals with government being the city of new haven. you made a commitment to follow adarand for going view of this commitment he gave me 12 years ago, why are the words adarand, equal protection and strict scrutiny are completely missing from many of your panel discussion of this decision? >> because those cases were not what was that issue in this decision, and in fact some of those cases were not what decided the supreme court's decision. the supreme court parties were not arguing the level of scrutiny that would apply with respect to intentional discrimination. the issue is a different one before our court and the supreme court, which is what is a city

to do when there is proof that its test the spratley impacts a particular group. and the supreme court decided, not on the basis of strict scrutiny, that what it did here was wrong, what the city did here was wrong but on the basis that the city's choice was not based on bases in evidence to believe it would be held liable under the law. those are two different standards, two different questions that the case would present. >> but, judge it was in fact simple. this case was recognized pretty soon as a big case, at least i noticed what perhaps kicked off judge carbanes's concern was a lawyer saying it was the most important discrimination case that the circuit had seen in 20 years. they were shocked, they basically got a one paragraph decision per curiam unsigned

back on that case. judge carbanes apparently raised this issue within the circuit, ask for a rehearing. your vote made the difference in not having a rehearing in bank, and he said quote municipal employers could reject the result, talking about the results of your test, the impact of your decision. municipal employers could reject the results of an employment examination whenever those results failed to yield a desirable outcome, i eiffel to satisfy a racial quota." so that was judge carbanes' analysis of your impact of the decision and he thought it was very important. he thought it deserved a full and complete analysis and opinion. he wanted the whole circuit to be involved in it and to the extent that it was different,

this circuit could have reversed the president had they chose to do so. don't you think-- tell us how it came to be that this important case was dealt with in such a cursory manner. >> the panel decision was based on a 78 page district court opinion, the opinion referenced its pure curiam incorporated it and it was referenced by the circuit and it relied on that very thoughtful, thorough opinion by the district court. that opinion discussed second circuit precedent to its fullest extent. justice carbanes had one view of the case and the panel had another. the majority of the voting, it wasn't just my vote, the majority of the vote, not just my though it denied the petition for rehearing. the court left to the supreme

court the question of how an employer should address what no one disputed was prima facie evidence that it desperately impacted on a group. that was the undisputed. the case blood did permit employees who had been desperately impacted, to bring a suit. the question was, for the city, was a racially discriminating when it didn't except those tests or was attempting to comply with the law? >> judge, i think it's not fair to say that the majority-- i guess it is fair to say a majority voted against a rehearing but it was 6-6. unusual that one of the judges had the challenge to the decision in your vote made that majority not to be here it.

do you-- ricci to deal with some important questions. some of the questions that we have got to talk about as a nation. we have got to work our way through. i know there is concern on both sides of this issue and we should do it carefully and correctly. , do you think that frank ricci and the other firefighters whose claims you dismissed felt that their arguments and concerns were appropriately understood and knowledge by such a short opinion from the court? >> we were very sympathetic and express their sympathy to the firefighters who challenged the city's decision, mr. ricci and the others. we understood the efforts that they had made in taking the test and we said as much. they did have before them a 78 page theroux opinion by the district court. they obviously disagreed with the lot as it stood under second

circuit precedent. that is why they were pursuing their claims than did pursue them. in the end, of the discretion and power to decide how these tough issues should be decided. that along with the precedent that had been recognized by our circuit court, but along with the court thought would be the right test or standard to apply. that is what the supreme court did. i answered that important question because it had the power to do that, not the power but the ability to do that because it was faced with the arguments that suggested that. the panel was dealing with precedence and arguments that relied on our president. >> thank you judge and i appreciate this opportunity and i would just say that the procurement opinion stood

without the readering requested by one of the judges and the whole circuit and kick off the discussion it is very unlikely that we would have heard about this case on the supreme court would have taken it up. thank you mr. chairman. >> thank you. obviously we can talk about your speeches, but ultimately we determine how you act as the judge and how you make decisions that will put into the record the american bar association, which has unanimously given you the highest rating. i have put into the record the new york city bar, which said you are extremely well credentialed to sit on the supreme court. i will put that in there. i put in the congressional research service, which analyze your cases and found that you consistently deal with the law

and with stare decisis, the the polling of past judicial precedent. i put in that the nonpartisan brennan center found use solidly in the mainstream and then another analysis of more than 800 of your cases which found you followed a traditional consensus judge on criminal justice issues. i thought i would put those in. it's one thing to talk about the speeches you might give. i'm more interested on cases you might decide. >> thank you very much mr. chairman and good morning judge sotomayor. senator sessions has been a great deal of time on the new haven case so i would like to see if we can put it into some perspective. is it true that ricci was a very close case? is it true that 11 of the 22 judges that reviewed the case did agree with you and that it

was only reversed by the supreme court by a one-vote, 5-4 margin? so, do you agree judge that it was a close case and that reasonable minds could at seen it in one way or another and not be seen as prejudiced or unable to make a clear decision? >> to the extent that reasonable minds can differ on any case, that is true as to what the legal conclusions should be in a case. but, the panel, at least as the case was presented to itself, was relying on the reasonable use that second circuit precedent have established and so, to the extent that one as a judge and hears to precedence, because it is that which guides and give stability to the law, then those reasonable minds who

decided the precedent and the judges to apply it are coming to the legal conclusion they think the facts and law require. >> alright. judge we have heard several of our colleagues now particularly on the other side criticize you because they believe some things you have said in speeches show that you not be able to put your personal views aside but i believe rather than pulling lines of speeches, oftentimes out of context, the better way to examine your record as a judge. in fact when i asked now justice alito what sort of a justice he was going to make, he said if you want to know what sort of justice i would make, look at what sort of judge i have been. so, you served now is a federal judge for the past 17 years, the last 11 as an appellate court judge. i believe it is plain that you are a careful jurist, respectful of precedent and author of dozens of moderate and carefully reasoned decisions.

the best evidence i believe is the in frequency with which you have been reversed. you have authored over 200 and 30 majority opinions and your 11 years on the second circuit court of appeals. but in only three out of those 230 plus case this have your decisions been reversed by the supreme court. a very, very low reversal rate of 2%. doesn't is very low reversal rate indicate that you do have in fact, an ability to be faithful to the law and put your personal opinions and background aside when deciding cases as you have in your experience as a judge? >> i believe what my record shows is that i follow the law, and that my small reversal rate, vis-a-vis, the vast body of cases that i have examined, as you have mentioned, only the opinions i have authored but i have been a participant in

thousands more that have not been privately reviewed by the supreme court or reverse. >> well, i agree with what you are saying and i would like to suggest that this constant criticism of you in terms of your inability to be an impartial judge is totally refuted that you have compiled as a federal judge up to this point. we have heard as much recently about chief justice roberts you that judges are like the umpires, simply calling balls and strikes so finally would you like to take the opportunity to give us your view about this sort of analogy? >> few judges can claim they love baseball more than i do. [laughter] for obvious reasons. hua but analogies are always imperfect. and, i prefer to describe what

judges do like the umpires is to be impartial and bring an open mind to every case before them. and by an open mind, i mean a judge who looks at the facts of each case, listens and understands the arguments of the parties and applies the law as the lock commands. it is a refrain i keep repeating because that is my philosophy of judging, applying the law to the facts at hand. and that is my id description of judging. >> thank you. judge, which current one or two supreme court justices the most identify with and which ones might we expect you to be agreeing with most of the time in the event that you are confirmed? >> senator, to suggest that i admire one of the sitting

supreme court justices would suggest that i think of myself as a clone of one of the justices. i don't. each one of them brings the integrity, their sense of respect for the law, and their sense of their best efforts and hard work to come to the decisions they think the law requires. with going further than that would put me in the position of suggesting that by taking one justice, i was disagreeing or criticizing another. and, i don't wish to do that. i wish to describe just myself. i am a judge, who believes that the facts drive the law and the conclusion that the low will apply to that case. when i say to ride the law, i mean determines how the law will

apply to that individual case. if you would ask me instead, if you permit me, to tell you a justice from the past that i admire for applying that approach to the law, it would be justice cordoza. justice cardoza it didn't spend a whole lot of time on the supreme court. he had an untimely passing but he had been a judge on the new york court of appeals for a very long time. during his short tenure on the bench, one of the factors that he was so well-known for was his great respect for precedent and his great respect, respect and deference to the legislative branch into the other branches of government and their powers under the constitution. in those regards, i do it meyer those parts of justice cordoza for which he was most famous for

and think that that is how i approach the law, as a case by case, application of law to facts. hua. >> thank you. appreciate that judge sotomayor. many of us are impressed with you and your nomination and we hold u.n. great gregard but i believe we have the right to know what we are getting before we give you a lifetime appointment to the highest court in a landfill in pass confirmation hearings we have seen nominees to tell us one thing during their private meetings and in the confirmation hearings go to the court and become a justice that is quite different from the way they portray themselves at the hearing. i would like to ask you questions about a few issues that have generated much discussion. we can all agree that it is good for our society when employers, schools and governmental institutions encourage diversity. on the other hand the

consideration of ethnicity or gender should not trump qualifications or turned into a rigid quota system. without asking you how he would rule in any particular case, what you think of affirmative action? do you believe that affirmative action is a necessary part of our society today? you agree with justice o'connor that she expects an 25 years the use of racial preferences will no longer be necessary to promote diversity? do you believe affirmative action is more justified in education than in employment or do you think that it makes no difference? >> the question of whether affirmative action is necessary in our society or not and what form it should take is always first, a legislative determination in terms of legislative or government employer determination, in terms of what issue is addressing and

what remedy it is looking to structure. the constitution promotes and requires the equal protection of law of all citizens in its 14th amendment. to ensure the protection, there are situations in which race in some form must be considered. the courts have recognized that. equality requires effort, and so there are some situations in which some form of race has been recognized by the court. it is firmly my hope, as it was expressed by justice o'connor and her decisions involving the university of michigan law school admissions criteria, that in 25 years, raised in our society won't be needed to be

considered in any situation. that is the hope. and we have taken such great strides in our society to achieve that hope, but there are situations in which there are compelling state interest and the admissions case that justice o'connor was looking at, the court recognized that in the education field. and, the state is applying a solution that is very narrowly tailored. and, they are the court determined that the law school's use of race is only one factor among many others with no presumptions of that mission whatsoever was appropriate under the circumstances. in another case, the companion case, the court determined that a more fixed use of race that

didn't consider the individual was inappropriate, and it struck down the undergraduate admissions policy. that is what the court has said about the educational use of race in a narrow way. the question, as i indicated, of whether that should apply in other contexts has not been looked at by the supreme court directly. the holdings of that case have not been applied or discussed in another case. that would have to await another state action that would come before the court, where the state would articulate its reasons for doing what it did in the court would consider those actions were constitutional or not. >> judge, bushey v. gore, many

critics of the decision as an example of the judiciary improperly injecting itself into a political dispute. in your opinion should the supreme court even have decided to get involved in bush v. gore? >> that case took the attention of the nation, and there has been so much discussion about what the court did or didn't do. i look at the case and my reaction as a sitting judge is not to criticize it or to challenge it, even if i were disposed that way, because i don't take the position on that. the court took and made the decision it did. the question for me as they look at that generous situation, it is only happened once in a lifetime of our country. it is that some good came from that discussion.

there has been and was an enormous elector oh process changes in many states as a result of the flaws that were reflected in the process that went on. that is a tribute to the greatness of our american system, which is whether you agree or disagree with a supreme court decision, that all of the branches become involved in the conversation of how to improve things. and sig indicated, both congress, who devoted a very significant amount of money to electoral reform in certain of its legislation and states have looked to address what happened there. >> judge, in a 5-4 decision supreme court ruled that kilo versus the city of new london was, that it was constitutional for local governments to seize private property for private

economic development. many people including myself for alarm about the consequences of this landmark ruling because in the words of dissenting justice o'connor, under the logic of the kilo case, nothing is to prevent the state from replacing any motel six with the ritz-carlton, any home with a shopping mall or any pharma with a factory. this decision was a major shift in the law. its said that private development was a permissible quote, public use according to the fifth amendment as long as that provided economic growth for the community. what is your opinion of the kilo decision, judge sotomayor? what is inappropriate public use for condemning private property? >> kilo is now precedent of the court. imus bolick. i am bound by a supreme court

decision as the second circuit judge, as the supreme court judge, i must give it the deference of the stare decisis which suggests that questions of the reach of kelo has to be examined in the context of each situation, and the court did in kelo note that there was a role for the courts to play in ensuring that takings by a state did in fact intend to serve the public, a public purpose and public use. i understand the concern that many citizens have expressed about whether kelo did or did not honor the importance of property rights, but the question and kelo was a complicated one about what constituted public use. and their the court held that a

taking to develop an economic, economically blighted area was appropriate. >> yes that is what they decided in kelo. isd your opinion and apparently you feel that you are not in a position to offer an opinion because it is precedent and now you are required to follow precedent as an appellate court judge but i asked you if you would express your opinion assuming that you became a supreme court justice and the samming that he might have a chance sunday to review the scope of that decision. where. >> i don't prejudge issues. >> okay. >> that is actually-- i come to every case with an open mind. every case is new for me. >> that is good. let's leave that. as you know just landmark case of griswold versus connecticut guarantees there is a fundamental constitutional right

to privacy and this applies to contraception. do you agree with that? in your opinion is that a settled law? >> that is the precedent of the courts so it is settled law. >> is there a general constitutional right to privacy and where is the right to privacy in your opinion found in the constitution? >> there is a right of privacy. the court has found it in various places in the constitution, has recognized rights her under those various provisions of the constitution. it is founded in the fourth amendment's right and prohibition against unreasonable search and seizures. most commonly, it is considered, i shouldn't say most commonly because search and seizure cases are quite frequent before the court but it is also found in the 14th amendment of the constitution when it is considered in the context of the liberty interests protected by the due process clause of the

constitution. >> judge, the court's ruling about the right to privacy in griswald laid the foundation for roe versus wade. in your opinion, is gross fedele blah? >> the court's decision in planned parenthood versus casey reaffirmed the court holding of roe. that is the precedent of the court and settled, in terms of the holding of the court. >> do you agree with justices souter, o'connor and kennedy in their opinion in hazy which reaffirmed the court's holding in a row? >> as i said, casey reaffirm the holding. that is the supreme court settled interpretation of what the core holding is and it's we affirmance of it. >> let's talk a little bit about cameras in the court.

dew said on the court of appeals which doesn't allow cameras in the court from all indications. your experience with that has not been negative. in fact, my understanding is that has been somewhat positive. so, how would you feel about allowing cameras in the supreme court where the country would have a chance to view discussions and arguments about the most important issues that the supreme court decides with respect to our constitution, our rights and our future? >> i have had positive experiences with cameras when i have been asked to join experiments of using cameras in the courtroom. i have participated. i have volunteered. perhaps it would be useful if i explained to you my approach to collegiality on the court. it is my practice, when i enter a new enterprise whether it is

on the court or in my private practice or when i was a prosecutor, to experience what the escorts were doing or those individuals doing that job for dueling, understand and listen to the arguments of my colleagues about why certain practices were necessary or helpful, or why certain practices shouldn't be done or new procedures tried, and then spent my time trying to convince them. but, i wouldn't try to come in with prejudgment so that they thought that i was on willing to engage in a conversation with them or unwilling to listen to their views. i go ten, and i try to share my experiences, to share my thoughts and tb collegial and come to a conclusion together.

and, i can assure you that, if this body gives me the privilege of becoming a justice of the supreme court, that i will follow that practice with respect to the atoll issues the procedure on the court, including the question of cameras and the courtroom. >> i appreciate the fact that if you can't convince them, it won't happen but how you feel? [laughter] how you feel about a admitting cameras in the supreme court, recognizing that you cannot decree by fiat? >> i am pretty-- i am a pretty good litigator, or i was a really good litigator and i know that when i work hard when at trying to convince my colleagues of something after listening to them, they will often try it for a while. i mean, we will have to talk together. we will have to figure out that

issue together. i would be again, if i was fortunate enough to be confirmed the new voice in the discussion. voices often see things and talk about them and consider taking new approaches. >> alright. judge, all of us in public office other than federal judges have specific fix terms and we must periodically run for re-election. even most state courts and judges have fixed terms of office. the federal judiciary as you know is very different for coburn i would like to ask you, would you support term limits for supreme court justices, for example 15, 20 or 25 years? would this help ensure justices do not become victims of the cloistered ivory tower existence and that you will be able to stay in touch with the problems of ordinary americans. term limits for supreme court justices? >> all questions of policy are

within the province of congress first, and so that particular question would have to be considered by congress first. but, it would have to consider it in the light of the constitution and then of statutes that govern these issues, and so that first step in decision would be congress's. i can only know that there was a purpose to the structure of our constitution and it was a deal by the founding fathers, that they wanted justices who would not be subject to political whim or to the emotions of the moment, and they felt that by giving them certain protections, that that would ensure that their objectivity and their impartiality over time. >> sure. >> i do know having served with many of my colleagues who have

been members of the court, sometimes for decades, i had one colleague who was still an active member of the court in his 90's. and, at close to 90, he was learning the internet, and encouraging my colleagues of a much younger age to participate in learning the internet. so, i don't think that it is service or the length of time. i think there is wisdom that comes to judges from their experience that helps them in the process over time. i think in the end, it is a question of one of what the structure of our government is best served by. and as i said, that policy question will be considered first by congress and the process is set forth by the constitution but i do think there is a value in the services of judges for long periods of

time. >> alright, a judge. fine riyadh like to turn to antitrust law. antitrust laws not some mysterious legal theory as you know that only lawyers can understand. antitrust is an old-fashioned word for fair competition and there is a low we used to protect consumers and competitors alike from unfair and illegal trade practices. a prominent antitrust lawyer was quoted in an ap story recently as saying that quote, judge sotomayor has a surprisingly broke pro-business record in the area of antitrust. in nearly every case in which she was one of the three judges considering a dispute, the court ruled against the plaintiff, bringing an antitrust complaint. i would like you to respond to that and to one other thing i would like to raise. in 2007, the case in a 5-4 decision, supreme court overturned a 97-year-old precedent that held the vertical

price-fixing no longer automatically violated antitrust law. in effect this means that a manufacturer is now free to set minimum prices at retail for its products, and thereby to prohibit discounting of its products. what do you think of this decision? do you think it was appropriate for the supreme court by judicial fiat to overturn a nearly century-old decision on the meaning of the sherman act that businesses and consumers had come to rely on and which had been never altered by congress? those two things, antitrust. i cannot speak, senator, to whether he was right or wrong. it is now an established law of the court. that case, in large measure, centered around the justices different views of the effects of stare decisis on a question

which none of them seem to dispute, that there were a basis to question, the economic assumptions of the court in this field of law. lee gann is the court's holding, teachings and i will have to apply in new cases so i can't say more than what i know about it and what i thought the court was doing there. with respect to my record, i can't speak for why someone else would you my record as suggesting a pro-or anti-approach to any series of cases. all of the business cases, with all of the cases, my structure of approaching it is the same, what is the law requiring?

i would note that i have cases that have upheld antitrust complaints end upheld those cases going forward. i did it in my visas, master card, antitrust decision and that was also a major decision in this field. all i can say is that with business and the interest of any party before me, i will consider and apply the law as it is written by congress and informed by precedent. >> thank you very much judge sotomayor and thank you mr. chairman. >> thank you. judge sotomayor, this would probably be inappropriate place to take a short break, and we will. and then we will come back and at some point we will break for both the republicans and democrats to be in a caucus

lunch but also to give you a chance to have lunch. so, we will take, we will take a ten minute, flexible ten minute, break and i thank you for your patience judge sotomayor and we will be back. [inaudible conversations] [inaudible conversations]

[inaudible conversations] [inaudible conversations] [inaudible conversations]

>> those were the opening questions for supreme court nominee judge sonia sotomayor over the next hour and half we will show you portions of the senate judiciary committee confirmation hearing with questions from democrat russ feingold followed by republicans jon kyl and a half hour and lindsay graham in one hour. >> judge, let me first say i don't mind telling you how much i enjoyed listening to you, both your manner injure abi is tremendous analogy an understanding of the law. in fact i'm enjoying it so much that i hope when you go in to these deliberations about cameras in the courtroom that you consider the possibility that i and other americans would like the opportunity to observe your skills for many years to come in the comfort of our family rounds and living rooms. >> you were a very good lawyer, ward cube senator? >> is not going to askew about this. let me get into a topic that i

discussed at length with two most recent support-- chief justice roberts and justice alito and that is the issue of executive power. in 2003 he spoke at a law school class about some of the legal issues that have arisen since 9/11. you started your remarks within moving description of how americans stood together in the days after those horrific events and help people from small midwestern towns and people from new york city found their common threads as americans you said. said in that speech while it is hard to imagine that something positive could ever result from such a tragedy that there was a sense in those early days of coming together as one community, that we would all help each other get through this. and it was of course something that none of us had experienced before, something i have often discussed as well but i have to also say, in the weeks and months that followed i was greatly disappointed that the events of that awful day, the

events that led brought us so close together as one nation was sometimes used judge, to justify policies, that departed so far from what america stands for so i'm going to ask you some questions that i ask now chief justice roberts at his hearing. did that day, 9/11 jews-- change your view of the rights and civil liberties and how they can be protected? >> september 11 was a horrific tragedy. all of the victims of that tragedy and for the nation. i was in new york. my home is very close to the world trade center. i spent days not being able to drive a car into my neighborhood because my neighborhood was used as a staging area for emergency trucks. the issue of the country's

safety, and the consequences of that great tragedy are the subject of continuing russian among not just senators but the whole nation. in the end, the constitution by its terms for tax certain individual rights. that protection is often specific. many of its terms are very broad so what is an unreasonable search and seizure? what are other questions or facts specific? but, in answer to your specific question, did it change my view of the constitution? nocera, the constitution is a timeless document that was

intended to guide us through decades, generation after generation, through everything that would develop in our country. it has protected us as a nation, it has inspired our survival. that doesn't change. >> i appreciate that answer judge. are there elements of the response to the government that you think 50 or 60 years from now we as a nation will look back on with some regret? >> i am a historian in undergraduate training. i also love history books. it is amazing how difficult it is to make judgments about once current positions. that is because history permits us to look back and to examine the actual consequences that have arisen, and then judgments are made. as a judge today, all i can do,

because i am not part of the legislative branch, it is the legislative branch who has the responsibility to make laws consistent with that branches a few of constitutional requirements and its powers. it is up to the precedent to take his actions and then it is up to the court to just examine each situation as it-- >> the truth is that courts are already dealing with these very issues. the supreme court itself has now struck down a number of post-9/11 policies and you yourself said on the panel that struck down one aspect of the national security letter statute that was expanded by the patriot acts the web like to hear your thoughts of that on whether you see any common themes are important lessons in the court's decisions in hamdan. what is your general understanding of that case? >> that the court is doing its

task. it is looking in each of those cases that what the actions are of either the military and what congress has done or not done, and applied constitutional review to those actions. >> is it fair to say given that line of cases that we could say at least in regard to the supreme court, that mistakes were made with regard to the post-9/11 policies? >> in each of those cases there was and overturning of the decision either by congress or the executive. >> i smiled only because that is not the way the judges look at that issue. we don't decide whether mistakes were made. we look at whether action was consistent with constitutional limitations or statutory limits.

>> in each of those cases there was a problem with their constitutional violation where problem with the congressional action, right? >> yes. >> that is fine. as i am sure you are aware of many of us on the committee discussed at length with a prior supreme court nominees the premier corvelli winning the scope of executive power and national security, discussed this at some length with senator feinstein, and the young stone case, and i and others on the committee are deeply concerned about the very broad assertion of executive power that has been made in recent years, the interpretation that has been used to what the reyes the violation of clear statutory prohibitions from the intelligence surveillance act to the anti-torture steady. you discussed with senator feinstein, the third category in the free market that is where, as justice jackson said the president's powers at its lowest ebb because congress has as you

well explained it specifically prohibited some action. i take the point that hypothetically speaking congress could conceivably pass a law that is plainly unconstitutional. for example of congress passed a law that said somebody other than the president would be the commander-in-chief of a particular armed conflict and that subject the presidential direction presumably that would be out of bounds but setting aside such abstract hypotheticals as far as i am aware, and i am pretty sure this is accurate, supreme court has never relied on the framework to conclude that the president a violate a clear statutory prohibition. in fact in youngstown itself the court rejected the plan to seize this deal man. is that your understanding of the supreme court precedent in this area? >> i have had pieces forests of-- sufficient number of cases in this area. to say that i can remember every supreme court decision on the

question related to this topic, as you know, in the youngstown case, the court held that the president had not acted within his powers in seizing the steel mills in the particular situation existing before him at the time. but, the question or the framework doesn't change, which is each situation would have to be looked at individually, because you can't determine ahead of time the hypotheticals what a potential constitutional conclusion will be. as i may have said to an earlier question, academic discussion is just that. it is presenting the extremes of every issue and attempting to debate about, on the extreme of

a legal question, how should the judge rule? >> i will concede that point. given your tremendous knowledge and your preparation i am pretty sure you would have run into an example of where this happened and i just want to know, i am on aware or if anybody is unaware of an example where something was justified under the president's power and lowest ebb and i would love to know about it but i think that is not a question of hypothetical. that is the factual question about what the history of case law is. >> i can only except your assumption, as i said. i have not had sufficient cases to have looked at what i know in light of that particular question you are opposing. >> in august 2002 the office of legal counsel and the department justice issued to memoranda considering the legal limits on interrogation, iteration-- the coal analysis of the criminal law prohibiting torture that included among other things that

an enforcement of the anti-torture statute would be an unconstitutional infringement on the president commander-in-chief authority. judge, that memo did not one site to the youngstown case or justice jackson's opinion in youngstown and we just learned on friday a new inspector general reports that in november 2001 olc memo providing the legal basis for the so-called terrorist surveillance program also did not cite youngstown. now i don't think you'd have to be familiar with those memos to answer my question, what does it strike you as odd that a complex legal analysis of the anti-torture is that you or the fisa act that considers with the president could violate the statues would not even mentioned youngstown case? never been an advisor to a president. that's not a function i have served so i don't want to comment on what was done or not

done by those advisors in that case and it's likely that some question, an %@@@@@@@ @ @ @ @ @ involving this question because it is that case's framework is how these issues are generally approached. >> good. i appreciate that answer. let me go to a topic that senator leahy and senator hatch discussed with you at some length, the second amendment. i believe the second amendment grants citizens an individual right to own firearms and frankly, he was elated when the court ruled in heller last year basically what i think had been a mistake all along, did not

recognize it is an individual right. the question of whether the second amendment rights are incorporated in the 14th amendment's guarantee of due process of law and therefore, afflicable to the states as you pointed out was not decided in heller. specifically held the second amendment applies only to the federal government so in my view is on remarkable as a circuit court judge in the maloney case he would follow applicable supreme court precedent that control the case rather than apply your own guess where the court may be headed after heller and that would be unfair criticism of a case you need to rule given the state of the wall. but let me move on from that because many of my constituents would like to know more about how he would make such a decision of the highest courts so i want to follow on that. first fall in my right if you are confirmed and the court grants certain in the maloney case you have to accuse itself from its consideration? >> yes, sir. my own judgment is it would seem

odd indeed if any justice would sit and review of a decision that they author. i would think the judicial code of ethics that govern recusals would suggest and command that would be inappropriate. >> fair enough. what if one of the other appeals comes to the court such as second circuit in ra that took the same position as yours and maloney. would you have to recuse yourself from that one as well? >> there are many cases in which a justice i understand has decided pieces as a circuit court judge that are not the subject of review. that raises issues the supreme court looks at leader. what i would do in this situation i would look at the practices of the justices to determine whether or not that would council to recuse myself.

i would just note that many of legal issues once they come before the court present a different series of questions than the one addresses as a circuit court. >> let's assume you were able to sit on this case of incorporating the right to bear arms as applied to the state how would you assess whether the second amendment or any other amendment that has yet been incorporated for the 14th amendment should be made applicable, what's the test the supreme court should apply? >> that's always the issue ligands are doing so to the extent the supreme court has not addressed this question yet and there is a strong likelihood it may in the future i can't say to you that i have prejudged the case and decided this is exactly how i'm going to approach it -- >> would be the general principle?

>> one must remember the supreme court's analysis in its prior precedent predated its principles or the development of cases discussing the incorporation doctrine. those are newer cases and so, the frame work in establishing those cases may well in for -- as i said i hesitant to prejudging saying they will or won't because that is what the parties will be arguing in the litigation. but it is -- i'm sorry. >> no, no, go ahead. >> i do recognize the courts more recent jurisprudence and corporation with respect to other amendments has taken, has been more recent and those cases as well as a lot of other things will inform the court's decision on how it looks at a new

challenge to a state regulation. >> and it is true despite the trend you described the supreme court isn't incorporated several amendments as against the states but most of those are covered by constitutional provisions and state constitutions and supreme court decisions that refuse to incorporate the federal constitutional protections like the case involving the second amendment, the nineteenth-century case date back nearly a century. so after heller doesn't seem almost inevitable when the supreme court does again consider what of the second amendment applies to the states that it will find the individual rights to bear arms to be fundamental as we've been talking about today? after all justice scalia's opinions said by the time of the founding the right to have arms, bear arms had become a fundamental constituted the preeminent authority for the founding generation cited the bill of rights as one of the fundamental rights of

englishmen. it was, he said the natural right of your assistance and self preservation and having and using arms for self preservation and defense. >> as i said earlier, you're a very eloquent advocate, but a decision on what the supreme court will do and watts and edible will come up before the justices and great likelihood in the future and so i feel i am spreading the line of answering a question about what the court will do in a case that may likely come before it in the future. >> let me try and a less lofty week. [laughter] we talked about non-talk thank you. [laughter] that's an easier kind of case, but heller was about was there was a lull in d.c. that said you couldn't have a handgun if you wanted it in your house to protect yourself. it is now protected under the constitution's the citizens in the district of columbia can

have a hand donner. what happens if we don't incorporate that and people in the state of wisconsin, let's say we didn't fit provision in wisconsin until the 1980's when i and other state senators proposed we have the right to bear arms, but isn't there a danger that if you don't have this incorporated against the states that would have this resolved the citizens of d.c. have a constitutional right to have a handgun but the people of wisconsin might not have that right the senate make it almost inevitable that you would have to apply this to the states? >> it's a question the court will have to consider. >> i appreciate your patience. [laughter] senator, the supreme court did hold there is in the second amendment the individual right to bear arms and that is as holding and that is the court's decision and i fully accept that and whatever new cases come before me that don't involve

incorporation as a second circuit judge i would have to consider those issues in the context of the particular state regulation of firearms or other instruments. >> i accept that answer and move on to another area where dialectical secret law and that is a development of controlling legal authority that has direct effect on the right of americans that's done entirely in secret. there are too strong exceed bills. first the fisa court often issues ruling containing substantive interpretation of the fisa act or fisa with few exceptions that have been kept from public ottilie recent change in the law many were not available to the full congress either meaning members had been called upon to vote on statutory changes without knowing how the court interpreted the statute. second the office of legal counsel the justice department issues legal opinions binding on the executive branch but also often kept from public and congress.

i & d's legal documents may sometimes contain classified operational details that would need to be redacted but i am concerned the meaning of dewaal like fisa which directly affects privacy rights of americans could develop entirely in secret i think it flies in the face of traditional notion of open and transparent american legal system. does this concern you at all? can you say anything about the importance of the law itself being public? >> well, the question for a judge as a judge would look at it is to examine first what policy choices the congress is making in its legislation. it is important to remember some of the issues you are addressing or part of congressional legislation as to how fisa will operate and as you said there have been amendments subsequent to that and so a court with what

congress has, what congress has done and with the acts of the other branch of government is consistent with that or not. the issue of how a particular document would affect national security or questions of that nature would have to be looked at with respect to an individual case. and as i understand there are review process he's in the fisa procedure. i'm not a member of the court so i am not intimately familiar with those procedures, but i know that this is part of the review process and sell when you ask concern there is always some

attention paid to the issue of the public reviewing or looking at the actions a court is taking but that also is tempered with the fact that there are situations in which complete openness can't be had for a variety of different reasons and sell courts, l.i. gate as a district court judge and have as a circuit court judge looked at situations in which judges had to determine whether juries should be a panel anonymously and in those situations we do consider the need for public actions, but we also consider there may be in some individual situations potential threats to

the safety of jurors that require an anonymous jury. i am attempting to speak about this as always a question of balance we have to look at first what congress says. >> the concerns you just raised and they have to do more with the facts that shouldn't be revealed in the legal basis? it's hard for me to imagine a threat to national security by revealing properly protected documents as simply referred to the legal basis for something. is there a distinction between those two things? >> it's difficult to speak from the abstract in large measure as i explained i've never been a part of the fisa court and so i have never had the experience of reviewing what those documents are and whether they can be redacted or not without creating risks to national security. and one has to think about what

explanations the government has. there's so many issues a court would have to look at >> to something completely different there's been a concept of empathy and context of your nomination. a judge ability to feel empathy does not of course mean the judge should rule one way or another as you well explained. i agree with president obama it's a good thing for the country to understand the real world implications of the decisions and the effects on a regular americans to understand both sides of an issue. your background as remarkable as you explained yesterday your parents came from puerto rico during world war ii and after your father died your mother raised two on her own in a housing project in the south bronx. you are a lifelong new yorker and a yankee fan as i understand but many americans don't live in big cities. many of my constituents live in rural areas of small towns and root for the brewers and packers. some might think that you don't have a lot in common with them.

what can you tell me about your ability as a judge to empathize with them to understand the everyday challenge is a small-town americans and how supreme court decisions might affect their lives? >> yes, i live and new york city and it is a little different than other parts of the country. but i spend a lot of time in other parts of the country. i've visited a lot of states, have stayed with people who do all types of work. i've lived, not to lift but decided and vacationed on farms and life vacationed in mountaintops, i have lived and vacationed in all sorts, not lift, using the wrong word -- i visited all sorts of places. in fact, one of my habits is when i travel somewhere knew i try to find a for and i know to stay with them. and it's often not because i

can't afford a hotel. usually the people are inviting me would be willing to pay. but it is because i do think it is important to know more than what i live and to try to stay connected to people and to different experiences. i don't think that one needs to live in the experience without appreciating it, listening to it, watching it, reading about it, all of those things experiencing it for a. of time help judges appreciating the concerns of other experiences that they don't personally have. and as i said, i try very, very hard to ensure that in my life i introduce as much experience

with other people's lives as i can. >> i realize i'm jumping back and forth to these issues but the last 1i want to bring the past to do with wertheim supreme court decisions. we look back with some bewilderment of course the decision in which the supreme court upheld a government policy to run and detain more than 100,000 japanese-americans during world war ii. it seems inconceivable u.s. government would have decided to put huge numbers of citizens in detention centers based on their race and supreme court allowed that to happen. i asked chief justice roberts about this as well, do you believe that it was wrongly decided? >> does the judge of a duty to resist the kind of wartime fears? the people understand or felt during world war ii which likely played a role in the 1944 decision? >> a judge should never will from fear. a judge should rule from wall

and the constitution. it is inconceivable to me today that a decision permitting the detention and arrest of an individual solely on the basis of their race would be considered appropriate by our government. >> some of the great justices in history of the country were involved in that decision. how does a judge resist those kind of fear? >> one hopes by having the wisdom of harlem and plessey, but having the wisdom to understand always no matter what the situation that our constitution has held office in good stead for over 200 years and that our survival depends on

applying it. >> thank you, judge. >> thank you for a much, senator feingold. what i was calling to do is go senator kyl, senator schumer, and then we will take a break. senator kyl. >> thank you mr. chairman. judge, could i return briefly to a series of questions senator feingold asked relating to the pallone decision to the second amendment? >> sure. good afternoon by the way. >> i'm sorry? >> good afternoon by the way. >> yes. good afternoon. you indicated that case were to come before the court he would recuse yourself from participating in the decision? >> in that case, yes. >> and you're aware there are two of their decisions both dealing with the same issue of incorporation of one in the ninth circuit, one in the seventh circuit. the seventh circuit decided the case similarly to your circuit court of the ninth circuit

decided differently although the case is on rehearing. if the court should take all three, let's assume the ninth circuit stays with its decision so you do have the conflict among the circuits and the court or to take all three decisions at the same time i take it the recusal issue would be the same, you would recuse yourself and the situation? >> i haven't actually been responding to that question and i think you're right for opposing it. i clearly understand that recusing myself from maloney would be appropriate. the impact of the joint hearing by the court would suggest that i would have to apply but as i indicated, issues of recusal are left to the discretion of justice is because their participation in cases in some

important. it is something i would discuss with my colleagues and follow their practices with respect to a question like this. >> i appreciate that and i agree with your reading that section 455 provides among other things, and i quote, any justice, judge or magistrate judge of the united states shall disqualify himself in any proceeding which is impartiality might be questioned and of quote and that of course raises the judges desire to consult with others and ensure impartiality isn't questioned by participating in a decision. i would think and i would want your responses, i would think there'd be no difference if the melody case is decided on its own or if it is decided as one of two or three other cases all considered by the court at the same time. >> as i said that is different than the question posed earlier

-- >> you wouldn't be willing to make an unequivocal commitment at this time? >> it's impossible to say. i will recused myself on any case involving maloney. how the others are granted and whether joint argument is presented or not i would have to wait to see what happens. >> suppose the other two cases are considered. your circuit is not involved or the court takes either incorporation of the second amendment i gather that in subsequent decisions you would consider yourself bound by that or consider that to be the decision of the court on the incorporation question. >> absolutely. the decision of the court in heller, its holding has recognized the individual right to bear arms as applied to the federal government. >> if as a result that was the matter before your circuit, and if as a result of the fact that the court decided in one of the

other or both of the other circuit case is resolved the issue so that the same matter would have been before the court makes sense for you to indicate to this committee now that should the same matter come before the court and you're on the court the you would necessarily recuse yourself from its consideration? >> i didn't quite follow the start of your question, senator -- i want to answer precisely but i am not quite sure -- >> you agreed with me if the court considered either the seventh or ninth circuit or both decisions, and decided the issue of incorporation of the second amendment to make it applicable to the states he would consider that a binding precedent of the court that of course the issue in maloney. as a result since it is the same matter you resolved and maloney, wouldn't you have to in order to comply with the statute recuse yourself if either or both or

all three of those cases came to the court? >> senator, as i indicated clearly the statute would reach maloney how i would respond to the court in but case and whether it took certiorari and one or all three is a question that i would have to await to see what the court decides to do and what issues it addresses and its grant of certiorari. there is also the point that he would ever comes before the court will be on the basis of a particular state statute, which might involve other questions. it's hard to speak about recusal in the abstract because there are so many different questions one has to look at. >> and i do appreciate that, and i appreciate you shouldn't commit yourself to a certain decision in a case if the issue is the same however it's simply

the question of incorporation. that is a very specific question of law. it doesn't depend upon the facts. i mean, it didn't matter that in your case you were dealing with a very dangerous arm, but not a firearm for example. you still consider the question of incorporation. let me just try to help you along here. both justice roberts and justice alito made firm commitments to this committee. let me tell you what the justice roberts said. he said he would recuse himself and by quoting batters he put some pitted while a judge on the court of appeals. matters. and since you did acknowledge that the incorporation decision was the issue in your second circuit case and the question i asked was whether if that is the issue from the ninth and seventh circuits you would consider yourself bound by that it would seem to me that you should be

willing to make the same kind of commitment that justice roberts and justice early today. >> i didn't understand their commitment to be broader than what i have just said, which is that they would certainly recuse themselves from any matter i understood it to mean any case they had been involved in as a circuit judge if their practice was to have recused themselves more broadly, then obviously i would take counsel from what they did. but i believe if my memory is serving me correctly, and it may not be but i think so, the justice alito as a supreme court justice has heard issues similar to ones he considered as a circuit court judge. so as i've indicated i will take counsel from what it for the

practices of the justices are with the broad question of -- >> i appreciate that. issues which are similar or different from an issue which is the same and i would just suggest that there would be an appearance of impropriety. if you already decided the issue of incorporation that's the same issue that comes before the court and then you in effect review of your own decision. that, to me, would be a matter of inappropriate and perhaps he would recuse yourself. i understand that. let me ask you about what the president said, and i talked about in my opening statement whether you agree. he used to differ analogies. he talked about 25 miles, first 25 miles of the 26-mile marathon and the also said and 95% of the cases, the law will give you the answer and the last 5% legal process will not lead you to the rolph decision and the critical

ingredient in the cases is applied by what is in the judge's part. do you agree the law takes you only the first 25 miles of a marathon and the last mile has to be decided by what is in the judge's part? >> no, sir. that's -- i wouldn't approach the issue of judging the way the president does tv he has to explain what he meant by judging. i can only explain but i think judges should do, which is judges can't rely on what is in their heart. they don't determined law. congress makes bill law. judges apply the law. so it's not the heart that compels the conclusion some cases. it's the law week, the judge applies the law to the fact is before that judge. >> appreciate that. and has it been your experience that every case, no matter how

tenuous it's been, and every lawyer, no matter how good their quality of advocacy in every case, every lawyer has had eighth legal argument of some quality to make. some precedent that he cited. might not be the supreme court, might not be the court of appeals, might be a trial court somewhere. might not even be a court precedent. it may be a law review article or something, but have you ever been in a situation where a lawyer said i don't have any legal argument to make, judge, please go with your hard on this, or your gut. >> i've actually had lawyers say something very similar to that. [laughter] i have had lawyers where questions have been raised about the legal basis of their argument and i had one lawyer for what his hands and say but it's just.

but it's just not right is and what the judges consider. but judges consider is what the law says. >> you've always been able to find a legal basis for every decision that you've rendered as a judge? >> well -- to the extent every legal decision has -- it is why do in approaching legal questions is i look at the law that is being cited. i look at how president and forms it. i try to determine what those principles are of precipice to apply to the facts in the case before me and then do that. and so, that is a process you use -- >> alana asking -- this is not a trick question. i can't imagine the answer would be otherwise than yes, you've always found some legal basis

for a ruling one way or the other. some precedent, some reading of the statute, the constitution, whatever it might be. you've never had to throw up your arms and say i can't find any legal basis on this so i am going to find some other factor? .. question about the president. that in every case the judge is able to find a basis in law for deciding the case.

sometimes it may not be a case from your circuit. sometimes it may be somewhat tenuous and you may have to rely but, my question is very simple to you. have you always been able to have the legal basis for the decisions that you have rendered and not have to rely upon some extra legal concept, such as infinity or some other concept other than a legal interpretation or precedent? >> exactly, sir. we applied lots dfcs. we don't apply feelings to facts. >> now, thank you for that. let me go back to the beginning. i raise this issue about the president's interpretation, because he clearly is going to seek nominees to this court and other courts that he is comfortable with and that would imply, who have some commonality with his view of the law and judging. it is a concept that i also

disagree with, but in this respect, it is-- the speeches that you ever given and some of their writings that you have engaged in have raised questions because they appear to fit into what the president has described as this group of cases in which the legal process or the loss simply doesn't give you the answer. and it is in that context that people have read the speeches and have concluded that you believe that the gender and ethnicity are an appropriate way for judges to make decisions in cases. now, that is my characterization. i want to go back through-- i have read your speeches, and i have read all of them several times. the one i happen to markup here is the seat hall speech but it was identical to the one at berkley. you said the point of those speeches was to inspire young

people, and i think there is some, in your speeches that certainly is inspiring and in fact it is more than that. i commend you on several of the things you talked about including your own background as a way of inspiring young people, whether they are minority or not in regardless of their gender. u.s says some very inspirational things to them. and i take it that, therefore, it's in some sense your speech was inspirational to them. but, in reading these speeches it is inescapable that your purpose was to discuss a different issue, that it was to discuss-- in fact, let me put it in your words. you said i intend to talk to you about my latina identity, where it came from and the influence i perceive gender, race, and national origin representation will have on the development of the law.

and then, after some preliminary and sometimes inspirational comments, you got back to the theme and said, the focus of my speech tonight, however, it is not about the struggle to get us where we are and where we need to go but instead to discuss what it will mean to have more women and people of color on the bench. you said, no one can or should ignore asking and pondering what it will mean it or not mean in the development of the law. you talked, you cited some people who had a different point of view then yours, and then you came back to it and said, because i accept the proposition that, as professor resnick explains, to judge is an exercise of power and because as professor martha minow of harvard law school explains, there's no objective stance but

only a series of perspectives. danone neutrality, no escape from choice in judging he said. i further accept that our experiences as women and people of color will in some way affect our decisions. now, you are deep into the argument here. you have agreed with resnick that there is no objective stance, only a series of perspectives, net neutrality-- which just as an aside, it seems to me is relativism run amok. then you say what professor minow's "means to me is not all women are people of color or all in circumstances, or me in any particular case or circumstance but enough women and people of color in and of cases will make a difference in the process of judging. you are talking here about different outcomes in cases and hugo want to substantiate your case by first of all siting in minnesota case in which three

women judges ruled differently than two male judges in a father's visitation case. decided to excellent studies, which tended to demonstrate differences between women and men in making decisions in cases. you said, is recognized by legal scholars, whatever the cause is, not one woman our person of color in any one physician but as the group we will have an effect on the development of law and on judging. so you develop the theme, you substantiated it was some evidence to substantiate your point of view. up to that point you had simply made the case i think that's judging could certainly reach, judges could certainly reach different results and make a difference in judging depending upon their gender or ethnicity. you hadn't render a judgment about whether that-- they would be better judgements or not. but, then you did.

you quoted justice o'connor to say that a wise old woman, weisel man would reach the same decision and then you said, i'm not so sure i would agree with that statement. pettis when you made the statement that is now relatively famous. i would hope that a wise latina women with the richness of her experiences would reach more often than not reach a better conclusion. so here, you are reaching a judgment that not only will it make a difference but that it should make a difference. you said in short-- i think this is important. do you note that some of the old white guys make pretty good decisions eventually, oliver wendell holmes, cordoza and others. you acknowledge that they made a big difference in discrimination cases but it took a long time to understand, it takes time and effort. then you concluded this. in short i accept the proposition that difference will be made by the presence of women and people of color on the bench and my experiences will affect the fact that i choose to see. i don't know exactly what the difference will be in my judging

by except there will be some based on gender and my latina heritage. as he said in your response to senator sessions said that you want encouraging that and you talked about how we need to set that aside but you didn't in your speech say that this is not good. we need to set this aside. instead you seemed to be celebrating it. the clear inference is it is a good thing that this is happening. so, that is why some of us are concerned, first with the president's elucidation of his point of view here about judging, and then these speeches, several of them, including speeches that were included in law review articles that you edited, that all say the same thing and it would certainly lead one to a conclusion that a you understand it will make a difference in b, not only are you not saying anything negative but you seem to embrace that difference, in

concluding that he will make better decisions. that is the basis of concern that a lot of people have. please take the time you need to respond to my question. >> thank you. i have a record for 17 years. decision after decision, the decision after decision. it is very clear that i don't base my judgments on my personal experiences or my feelings or my biases. all of my decisions show my respect for their rule of law, the fact that regardless about if i identify a feeling about the case, which was part of what that speech did talk about, there are situations where one has reactions to speeches, two activities. it is not surprising that in some cases the loss of a victim is very tragic.

a judge feels with those situations in acknowledging that there is a hardship to someone doesn't mean that the lock commands the result. i have any number of cases where i have acknowledged the particular difficulty to a party or disapproval of a party's actions and said no, but the law requires this. so, my views i think are demonstrated by what i do as a judge. i am grateful that you took notice that much of my speech, if not all of it, was intended to inspire. and my whole message to those students, and that is the very end of what they said that them, was i hope i see you in the courtroom some day. i don't know if i said it in that speech but i often end my speech is with saying, and i hope some day you were sitting on the bench with me.

so, the intent of this speech, its structure, was to inspire them to believe, as i do, as i think everyone does, that life experiences in ridge the legal system. i use the words, the process of judging, that experience that you look for in choosing a judge, whether it is the aba rule that says the judge has to be a lawyer for x number of years or it is the experience that your committee looks for in terms of what is the background of the judge, have been undertaken serious consideration of constitutional questions? all of those experiences are bound because our system is enriched by a friday of experiences. and, i don't think that anybody quarrels with the fact that diversity on the bench is good

for america. it is good for america because we are the land of opportunity. and to the extent that we are pursuing and showing that all groups can be lawyers and judges, that is just reflecting the values of our society. >> and if i could just interrupt you right now, to me that is the key. it is good because it shows these young people that you are talking to, that with a little hard work, it doesn't matter where you came from. you can make it. and that's why do you hope to see them on the bench. the question though is whether you leave them with the impression that it's good to make different decisions because of their ethnicity or gender. blind lady justices not permit us to base decisions in cases on our ethnicity or gender. we should strive very hard to set those aside when we can. i found only one rather obliquely reference in your speech that could be read to say

that he warned against that. all of the other statements seemed to embrace it. or, certainly to recognize it in almost seem as if you are powerless to do anything about it. i accept that this will happen, you said. while i appreciate what you are saying it still doesn't answer to me the question of whether you think that ethnicity or gender should be making a difference. >> there are two different-- i believe the issues to address and to look at because of various statements are being looked at and being tied together, but this speech, as it is structured, it didn't intend to do that and didn't do that. much of the speech about what differences there will be in judging was in the context of my saying war addressing an

academic question. all the studies that you reference i cited in my speech were just that, studies. they were suggesting that there could be a difference. they were reaching-- raising reasons why. i was inviting the students to think about that question in most of the close that you had in reference say that. we have to ask this question. does it make a difference? and if it does, how? and the study about differences in outcomes within that context. that was a case in which three women judges went one way and two men when the other but i didn't suggest that that was driven by their gender. you can't make that judgment until you see what the law actually said. and i wasn't talking about what law they were interpreting in that case. i was just talking about the academic question that one should ask. >> if i could just interrupt, i

think you just contradicted your speech because he said in a line before that, and of women and people of color in enough cases will make a difference in the process of judging. next,, the minnesota supreme court has given us an example of that, so you did cite that as an example of gender making a difference in judging. look, i don't want to be misunderstood here is disagreeing with a general look into questions, into the question of whether people's gender, ethnicity or background in some way affects their judging. i suspect you can make a very good case that that is true in some cases. hugh sidey case here for that proposition. neither you nor i probably know whether for sure that that was the reason but one could infer it from the decision that was rendered. the new site to other studies. i'm not questioning whether the studies are not valuable. it is important for us to be a will to know these things of that we are on guard to set

aside prejudices that we may not even know we have because when you do judgeship case, let me just go back in time. i tried a lot of cases, and it always depended on the luck of the draw, what judge you got. 99 times out of 100 it didn't matter so we got judge jones, fine. we got judge smith, find. it didn't matter because you knew they would all apply the law. in federal district court in arizona, there is one judge who didn't want to get. they knew he had predilection is that we are really difficult for him to set aside. it is a reality and i suspect you have seen that on some courts to. it is a good thing to examine whether or not those biases and prejudices exist in order to be on guard and to set them aside. the fault i have with their speech is that you not only don't let the students know that you need to set it aside, you don't say that that is what you need this information for but you are almost celebrating.

you say, if there are enough of us we will make a difference, infering that it is a good thing if we begin deciding cases differently. let me ask you just one last question here. have you ever seen a case where, to use your example, the wise latino made a better decision then binnun latino judges? >> no, what i have seen-- >> i know like all of your decisions but-- i was just saying that i know she appreciates her own decisions. i don't mean to denigrate her decisions, mr. chairman. >> i was using a rhetorical that harken back to justice o'connor because her literal words and mine have the meaning that neither of us, if you were looking at it, in their exact words, make any sense.

justice o'connor was a part of a court in which she greatly respected her colleagues. and yet, those wise men-- i'm not going to use the other word-- and wise women did reach different conclusions in deciding cases. i never understood her to be attempting to say that that meant those people who disagreed with her or unwise or unfair judges. as you know, my speech was intending to inspire the students to understand the richness that their backgrounds could bring to the judicial process in the same way that everybody else is background does the same. i think that is what justice alito was referring to when he was asked questions by this committee and he said, when i decided case i think about my italian ancestors and their

experiences coming to this country. i don't think anybody thought that he was saying that that commanded the result in the case. these were students and lawyers, why don't think would have been misled either by justice o'connor's statement or mine, in thinking that we actually intended to say that we could really make wiser and fair decisions. i think what they could think and would think is that i was talking about the value that life experiences have in the words i used for the process of judging. and, that is the context in which i understood the speech to be doing. the words i chose, taking the rhetorical flourish, it was a bad idea. i to understand that there are some who have read this

differently, and i understand why they might have concern. but, i have repeated more than once, and i will repeat throughout, you look at my history on the bench, and he will know that i do not believe that any ethnic, gender or race group has in advantage and sound judgement. you noted that my speech actually said that. and i also believe that every person, regardless of their background and life experiences, can be good and wise judges. >> in fact if i might-- >> excuse me, just for the record. idol think it was your speech that said that, but that's what you said in response to senator sessions question this morning. >> when we get-- the references made to justice alito. that was on january 11, 2006. what he said, when i get a case about discrimination i have to think about people in my own

family to suffer discrimination because of their ethnic background and because of religion, or because of gender and i do take that into account. >> coverage of the confirmation hearing for supreme court nominee judge sonia sotomayor continues in a few moments with questions from south carolina republican, lindsay graham. in a half-hour we will look at la raza paulson enforcement to judge sotomayor. we will reader today's hearing in its entirety including questions on the 2nd amendment, abortion, judicial philosophy and the discrimination case involving fireman in new haven, connecticut. >> my problem quite frankly is that as senator schumer indicated the cases that you ever been involved then, to me are left of center but not any thing that jumps out at me, but this speech is really do. i mean the speech you gave to the aclu about foreign law will talk about that probably in the

next round, was pretty disturbing, and i keep talking about these speeches because what i am, and i listen to you today. i think i listen to judge robert. i am not listening to a strict constructionists that we have to reconcile in our own minds to put the puzzle together to go, is that the god judge sotomayor who has come a long way in done a lot of things and every american should be proud of. you have got a judge who has been on a circuit court for a dozen years. some of the things trouble me but general speaking left-of-center but within the mainstream and you have these speeches that just me away. don't become a speechwriter if this law thing does not work out because the speech is really fairly wrinkle into everything. and that is what we are trying to figure out, who are we getting here? who are we getting? as a nation.

now, legal realism, are you familiar with that term? >> i am. >> what does that mean for someone who may be watching the hearing? >> to me, it means that you are guided in reaching decisions and blah by the realism of the situation, it is, it looks at the law. >> kind of touchy feely stuff. >> it is not quite words that i would use because there are many academics and judges who have talked about being legal realists but i don't apply that to myself at all. as i said, i look at law and precedent in discern its principles and apply it to a situation. >> so, he would not be a disciple of the legal realisms goal? >> no. >> alright. would you be considered a strict

constructionist in your own mind? >> i don't use labels to describe what i do. there has been much discussion today about what various labels mean and don't mean to kill each person uses those labels and give it their own sense. >> when judge rehnquist said he was a strict constructionist, did you know what he was talking about? >> i think i interested what he was referencing, but his use is not how i go about looking at-- >> what this strict construction as a means to you? >> it means that you look at the constitution as it is written or statutes as they are written, and you apply them exactly by the words. >> right. would you be in the regional list? >> again, i don't use those words.

>> what is an original list? >> in my understanding it is someone who looks at what the founding fathers intended and what the situation confronting them was and you use that to determine every situation presented, not every but most situations presented by the constitution. >> do you believe the constitution as a living, breathing and evolving document? >> the constitution is a document that is immutable to the sense that it has lasted 200 years. the constitution has not changed except by the amendment. if it is a process, an amendment process that is set forth in a document. it doesn't live other than to be timeless by the expressions of what it says. what changes in society, what

changes is what facts eight judge maggette. >> what is the best way for society to change, generally speaking? what is the most legitimate way for a society to change? >> i don't know if i can use the words changed. society changes because there have been new developments in technology, in madison, in society growing. >> do you think judges have changed society? by some of the landmark decisions in the last 40 years? >> well, in the last few years? >> 40 years. i am sorry, 40. do you think roe v. wade changed american society? >> roe versus wade looked at the constitution and decided that the constitution is applied to

tuilaepa writeup flight. >> is there anything in the constitution that says a state legislator of the congress cannot regulate abortion or the definition of life in the first trimester? >> the holding of the court-- >> i am asking the constitution. does the constitution has written prohibit a legislative body at the state of federal level from defining life or regulating their rights of the unborn or protecting the rights of the unborn in the first trimester? >> the constitution in the 14th amendment has-- >> is there anything in the document written about abortion? >> the word abortion is not used in the constitution, but the constitution does have a broad provision concerning a liberty

provision under the due process. >> and that gets us to the speeches. that broad provision of the constitution that has taken us from no written prohibition protecting the unborn, no written statement that you can't voluntarily pray in school and on and on and on and on and that is what drives this year, quite frankly. that is my concern. when we talk about balls and strikes, maybe that is not the right way to talk about it, but a lot of us feel that the best way to change society is to go to the ballot box, select someone and if they are not doing it right, get rid of them to the electoral process. the lot of us are concerned from the left and the right, that unelected judges are very quick to change society in a way that

is disturbing. can you understand how people may feel that way? >> certainly, sir. >> now, you. i like you, by the way for whatever that matters. i may vote for you, so that ought to matter to you. one thing that stood out about your record is that, when you look at the almanac of the federal judiciary, lawyers anonymously great judges in terms of temperament, and here's what they said about you. she is a terror on the bench. she is temperamental, and seibel in she seems angry. she is overly aggressive, not very judicial. she does not have a very good temperament. she abuses lawyers. she really lacks judicial temperament.

she believes and in-- she behaves in and out of control manner. she makes an appropriate outburst. she is nasty to lawyers. she will attack lawyers from making an argument she does not like. she can be a bit of a bully. when you look of the evaluation of the judges on the second circuit, you stand out like a sore thumb. in terms of your temperament. what is your answer to these criticisms? >> i'd to ask tough questions in oral argument. >> are you the only one that asks the tough questions at oral arguments? >> not at all. i can only explain what i am doing, which is one might ask lawyers tough questions, it is to give them an opportunity to explain their positions on both sides, and to persuade me that they are right.

i do know that in the second circuit, because we only give lid against ten minutes of oral argument each, that the processes in the second circuit are different than in most other circuits across the country. and some lawyers to find that our court, which is not just me but are court generally is described as a hot bench, a term that lawyers use. it means they are peppered with questions. lots of lawyers who are unfamiliar with the process of the second circuit find that toff bench difficult and challenging. >> if i may interject judge, they find you difficulty and challenging more than your colleagues and the only reason i mention this is, it stands out

and there are many positive things about you and these hearings are designed to talk about the good and bad, and i never liked appearing before a judge that i thought was a bully. it is hard enough being a lawyer, having your client there to begin with without the judge beating you up for no good reason. do you think you have the temperament problem? >> no, sir. i can only talk about what i know about my relationship with the judges of my court, and with the lawyers who appear regularly from our circuits, and i believe that my reputation is such that i ask the hard questions but i do it evenly for both sides. >> in fairness to you, there's plenty of statements in the record in support of you as a person, that do not go down this line but i would just suggest to you for what it is worth judge,

that you go forward here, that these statements about you are striking because they are not about your colleagues. the ten minute rule applies to everybody and obviously you have accomplished a lot in life, but maybe these hearings are a time of self reflection. this is pretty tough stuff that you don't see about the other judges on the second circuit. let's talk about the wise latino. the only reason i wanted to talk about it yet again is because i think what you said, let me put my bias is on the table here. one of the things that i constantly say when i talk about the war on terror is one of the missing ingredients in the mideast is the rule of law that senator schumer talked about, that the hope for the mideast, iraq and afghanistan that there will be a courtroom one day that if you find yourself in that court it will be about what you allegedly did, not who you are.

it will be about whether you are a sunni, shia, a curd or a pashtun, it will be about what you did and that is the hope of the world that our legal system even though we fail at times wells breadth and i hope one day that there will be more women serving in elected office and judicial offices in the mideast because i can tell you this from my point of view. one of the biggest problems in iraq and afghanistan is a mother's voice is seldom heard about the fate of her children and if you wanted to change your act, apply the rules of law and have more women involved in having a say about iraq. i believe that about afghanistan, and i think that is true here. i think for a long time a lot of talented women were asked, can you type? and we are trying to get beyond that and improve as a nation. so, when it comes to the idea

that we should consciously try to include more people in the legal process and the judicial process from different backgrounds, cal me in. but, your speeches don't really say that to me. the along the lines of what senator kyl was saying, they kind of represent the idea, there is a day coming when there will be more of us, women and minorities, and we are going to change the law. and, what i hope will-- we will take away from this hearing is there need to be more women and minorities in the law to make a better america. and the law needs to be there for all of us if and when we need it. and, the one thing that i have tried to impress upon you, through jokes and being serious is the consequences of these

words in the world in which we live in. now, we are talking about putting you on the supreme court and judging your fellow citizens. and, one of the things that i need to be assured of is that you understand the role as it pretty much really is, and we have got a long way to go in this country and i can't find the boat but i will find it here in a moment. the wise latino quote. do you remember it? [laughter] >> yes. >> okay, say it to me. can you recite it from memory? [laughter] alright. i would hope that a wise latino woman with the richness of her experience with more often than

not reach a better conclusion than a white male. and the only reason i keep talking about this is that i am in politics, and you have got to watch what you say because one, you don't want to offend people you are trying to represent, but do you understand maam, that if i had said anything like that and my reasoning was that i am 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 you could take it. with lindsay graham said i would make it better senator than x because of my experience as a

caucasian male makes me better able to represent the people of south carolina. my opponent was a minority. it would make national news, and it should. having said that, i am not going to judge you by that one statement. i just hope you will appreciate the world in which we live in, that you can say those things, meaning to inspire somebody and still have a chance to get on the supreme court. others could not remotely come close to that statement and survive. whether that is right or wrong, i think that is the fact. does that make sense to you? >> it does, and i would hope that we have come in america to

the place where we can look at a statement that could be misunderstood and consider it in the context of a person's life. >> if that comes of this hearing, the hearing has been worth it all, that some people deserve a second chance when they misspeak. and he would look at the entire flight story to determine whether this is then aberration or just a reflection of your real sold. at that comes from this hearing, then we have probably done the country some good. now, let's talk about the times in which we live in. you were from new york. have you grown up in new york all of your life? >> my entire life. >> what did september 11, 2001 mean to you? >> it was the most horrific experience of my personal life,

and the most horrific experience in imagining the pain of the families and the victims of that tragedy. >> do you know anything about the group that planned this attack, who they are and what they believe? have you read anything about them? >> i followed the newspaper accounts, i have read some books in the area so i believe i have an understanding of that. >> what would a woman's life peak in their world if they could control a government or a part of the world? what did they have in store for women? >> i understand some of them have indicated that women are not equal to men. >> i think that is a very charitable statesman. do you believe that we are at war? >> we are, sir.

we have tens of thousands of soldiers in the battlefields of afghanistan and iraq. we are at war. hoose bead are you familiar with military law much at all? and if you are not that is okay. >> no, no, i am thinking because i have never practiced in the area. i have only read the supreme court decisions in this area. i have obviously examined by referencing cases some of the procedures involved in military law, but i am not personally familiar with military law and have not participated. >> i understand. from what you have read and what you understand about the enemy this country faces do you believe there are people out there right now that are plotting our destruction?

>> given the announcements of certain groups and the messages that have been sent with video tapes, etc. announcing their intent, the answer would be, based on that, yes. >> under the law of armed conflict and this is where i may differ a bit with my colleagues, it is an international concept, the law of armed conflict. under the lot of armed conflict, do you agree with the following statement. that if a person is detained, who is probably identified to it accepted legal procedures under the law of armed conflict as a part of the enemy force, there is no requirement based on a length of time that they be returned to the battle? or released?

in other words, if you captured a member of the enemy force, is it your understanding of the love that you have to add some period of time, let them go back to the fight? >> it is difficult to answer that question in the abstract for the reason that i indicated later. i have not been a student of the law of war, other than-- >> we will have another round. i know you will have a lot of things to do but try to look at that, look at that general legal concept in the legal concept i am espousing is that under the law of war, article v specifically, the geneva convention requires that detaining authority to allow in impartial decisionmaker to determine the question of status, whether not you are a member of the enemy force. and, see if i am right about the blood but that determination is

properly had, there is no interpretation to release a member of the enemy force that still presents a threat. i would like you to look at that. thank you. let's talk about your time as a lawyer. the peurto rican legal defense fund, is that right? is that the name of the organization? >> it was then. i know it has changed names recently. >> okay. how loung were you a member of that organization? >> nearly 12 years. if not 12 years. >> during that time you were involved in litigation matters, is that correct? >> the fund was involved in litigations. i was a board member of the fund. >> are you familiar with the position that the fund took regarding taxpayer funded abortion? the briefs they filed? >> no, i never reviewed those breathed.

>> in their brief they argued and i will submit the quotes to you, that if you deny a low-income woman medicaid funding, a taxpayer funds to have an abortion, if you deny her, that is a form of slavery and i can get the quotes. do you agree with that? >> i wasn't aware of what was said in those briefs. perhaps it might be helpful if i explain what the function of a board member is, and what the function of the staff would be in an organization like the fund. >> okay. >> in a small organization as the peurto rican legal defense fund was back then, it wasn't the size of other legal defense funds like the naacp, legal defense fund or the mexican american legal defense fund,

which are organizations that undertook a very similar work. in an organization like this, a board member's main responsibility is fund-raising. and i am sure that a review of the board meetings would show that that is what we spent most of our time on. to the extent that we looked at the organization's legal work, it was to ensure that it was consistent with the broad mission statement of the funds. >> is the mission statement of the fund to include taxpayer funded abortion? >> our mission-- >> was that one of the goals? >> our mission statement was brought like the constitution, which meant that its focus was on promoting equal opportunities of hispanics in the united

states. >> judge, i will share them with you and we will talk about this more, a post of briefs for a 12 year period where the fund is advocating to the state court in the federal courts that to deny a woman taxpayer funds, a low income women taxpayer assistance in having an abortion is a form of slavery and in the unspeakable and cruelty to the life and health of a poor woman. what is it or was it not the position of the fund to advocate taxerpayer funded abortions for low-income women? >> i was not as a board member i did not review those briefs. >> would it bother you that is what they did? >> well, i know that the funds during the years i was there, was involved in public health issues as it affected the latino

community. >> was it a public health issue? >> it was certainly viewed that way generally by a number of civil rights organizations at the time. >> do you personally feel with that way? >> it was not a question of whether representative personally viewed it that way are not. the question was whether the law was settled on what issues the fund was advocating on behalf of the community it represented. >> go ahead. >> in so, the question would become, was there a good-faith basis for whatever arguments they were making as the fund's lawyers were lawyers. we had an ethical obligation. >> quite frankly, lawyers are lawyers and people who have causes that they believe and have every right to preserve

those causes. in the fund, you may have been a board member but i am here to tell you that filed briefs constantly for the idea that taxpayer funded abortion was necessary and to deny it would be a form of slavery, the challenge parental consent as being cruel and i can go down a list of issues that the fund got involved in the death penalty should be stricken because it has, it is a form of racial discrimination. what is your view of the death penalty in terms of personally? >> the issue for me with respect to the death penalty is that the supreme court, sends greg, has determined that the death penalty is constitutional under certain situations.

i have rejected challenges to the federal law and its application. in the one case i handled as the district court judge but is a reflection of what my views are. >> as an advocate, did you challenge the death penalty as being an inappropriate punishment because of the affected has on race? >> i never litigated a death penalty case personally. >> did you ever signed a memorandum saying that? >> i signed the memorandum for the board to take under consideration what position on behalf of the latino community the funds should take our new york state reinstating the death penalty in the state. it is hard to remember because so much time has passed. >> we will give you a chance to

look at some of the things i am talking about because i want you to be aware of what i am talking about this. let me ask you this. a failure on the other side filed a brief in support of the idea of that abortion is the unnecessary and unlawful taking of innocent life, if public money should never be used for such an enhanced purpose, would that disqualify them in your opinion from being a judge? >> and advocate advocates on behalf of the client they have, and so, that is a different situation then how a judge has acted in the cases before him or her. >> the only reason i mention this judge is that the positions you took or this funds took i think, like these beaches, tell us some things and we will have a chance to talk more about your

full life, but i appreciate the opportunity to talk to you. >> thank you sir. >> ear coverage of the confirmation hearing for supreme court nominee judge sonia sotomayor continues in a few moments with elected her endorsement by the national council of la raza. in a little less than half hour we will air today's confirmation hearing before the senate judiciary committee in its entirety, including questions on constitutional issues and judicial philosophy. questioning begins with committee chairman senator patrick leahy and ranking republican, senator jeff sessions. >> janet is presidency of the national cancel of la raza. thank for being with us. first of all describe the mission of the organization. >> guest: we want to create opportunities for hispanics and the united states and our mission is to open the door to the american dream. for everyone in this country including latinos. >> host: what is your

relationship then to judge sotomayor? >> guest: really, one of just watching her career and generally you know, watching her move through the judiciary. she was technically a dues paying member of our organization, i believe from 1998 to 2003. >> host: you endorsed yesterday. >> guest: yes we did. the board recommended that because of the unique nature of this appointment and nomination and what it means for our community and the fact that she is uniquely qualified, and overwhelmingly qualify for this position that we would endorse frankly, typically we don't endorse federal judiciary nominees for supreme court nominees. that is rare for us. >> host: you mention this was a significant appointment, nomination. but what else about it made your organization say we need to respond to this end weigh in on

her? >> guest: obviously, she is uniquely qualified and the fact that this is a historic nomination, the fact that she is the first hispanic and-- to reach this level and to reach the heights of the supreme court is something that is of great distinction for our community but ultimately it is because we believe that she was qualified in overwhelmingly so. >> host: what imclone says judge sotomayor had on la raza? >> guest: i don't think there is any direct influence. again, we have seen her nomination as uniquely historic for community and for the country. >> host: have you found a real uptick or a surge in interest in your group because there has been so much attention? >> guest: certainly there has been a surge of pride in the latino community and it is really far-reaching across the country and in puerto rico. we have i think enjoyed a real

momentous occasion with this nomination and i think for the first time, there are many in our community who feel there are finally being represented at the highest level of our court system, so there's no question that this is a great moment for the latino community, the hispanic community in this country and our organization, we obviously have followed many issues affecting the hispanics in this country including civil-rights, so we are always interested in these types of nominations. >> host: you can join the conversation and talk to janet, who is president and ceo of the national council of la raza. we will be joining the like confirmation hearings for judge sotomayor in about 25 minutes. in the meantime give us a call. republicans, (202)737-0001. how much attention are you paying to these hearings? what are you looking for?

are you more interested in sort of the cultural aspect of judge sotomayor's dori or are you equally interested in the context of which yet to say? i happen to be at the hearing yesterday and i believe that was a historic moment and i wanted to make sure as a representative of the national organization representing wittiness in this country, having that opportunity i could talk to folks about what that was like and what it meant but i think for us, it is very important that this process be a civil and fair process, one that is respectful of her career and contributions and early on, we had seen some very extreme comments and commentary made about her, not really relevant to her credentials or her experience or record, and we were a little concerned that somehow that might be the tone taken in the senate. thus far that is not been the case and i really appreciate

those on the senate judiciary committee to make sure that the tone has been very respectful. i hope that will continue in the days of questioning. >> host: we have a call from peggy on the democrats line phoning in from altoona, pennsylvania. good morning, peggy. >> caller: good morning. i have a question. i am a little bit foggy at this morning. i wanted to know if your organization is cooperating or coordinating with any other organization right now to increase awareness regarding not only to the issue of race or creed, but socioeconomic. when i hear the word and that the used regarding the current

nomination to the supreme court, it brings to mind a right brain fuzziness. i just want to know if you think in your organization thinks that many things that are labeled racist in this country today surpass color and enter the realm of the socioeconomic status? >> guest: well, it is an interesting question. i think anytime you delton to the issue of race in this country today, i think it is a complicated issue and there many who believe that's we have moved far enough along as a country where perhaps we no longer need to be a race conscious, or have any consciousness with regard to ethnicity or gender. i think we'll we have made a lot of significant strides in progress for many communities of color, the fact of the matter is that there is still a lot more

to be done on the basis of race, ethnicity, gender or any other i guess type of category like that. i do think that the caller makes a point that, when it comes to the socioeconomic status, oftentimes it is those lower income communities and lower income families that tend to have difficulty moving forward, and i think there still needs to be opportunities for folks to have access to information and to knowledge and to assistance to help them better move up that ladder if you will, and to allow them to navigate the system and to open more doors. i think we see the role of our organization. were 40 years old now. we celebrated our 40th anniversary. we are a mainstream organization that has contributed greatly to opening doors of opportunities for many in this country including latinos.

inã a white group, i would not be welcome anywhere. those laws demeaned the race? can you answer that for doesn't la raza mean the race? let's start with that. >> guest: no, not directly doesn't. in spanish like english words have different meanings and our

organization, the national council la raza actually means the national council of the community, national council of the people and it's a reference in spanish to the word in english that was meant to be very inclusive. i know some have interpreted that word to mean its exclusivity but that couldn't be further from the truth. it's certainly the work and the record we have had with opening doors to opportunity and to creating great progress and engaging in a policy we think advances the country in a way that is very inclusive our record. we've run a hundred charter schools for our community based organizations throughout the country and provide important support for education to many of those constituents. we'd run a home ownership counseling network that really helps many families learn about

buying their own homes. we have health programs that help assist families with information about nutrition and dieting so they can become healthier and about one-third of affiliate's on a form of health clinics. so there's a broad range and the nature to our work and the work we've been involved in over those 40 years really reflect the fact that we have been an organization, mainstream american organization that has contributed mightily to the civil rights and other policy development initiatives and programs that have occurred in a very positive fashion in this country. i know there's a lot of confusion about our name, but the reality is is that it comes from a term that and author used in the early 1900's, talking about the cosmic rays, la raza, cosmica, meant to mean spanish people of the new world and inclusion of mixture of people

from different races. >> host: activity getting started in heart room to 16. let's take a look at the preparation going on. the actual confirmation hearing will begin in 20 minutes or so and until then we have our guest, janet marguia president of the council la raza. let's go back to george on the republican line calling from ocala florida. >> caller: yes, good morning to c-span, and good morning to your guest. i just had a very simple question. given the controversy with the president now being, you know, black and with ms. sotomayor, judge sotomayor and her supposedly racial comments -- my question is very simple. is it working? is the melting pot here in this country working? and you don't have to be really longwinded, just yes or no would suffice.

thank you for your time. bye-bye. >> guest: thank you. we certainly have seen a melting pot a few well in this country develop. some say it is more of a tossed salad. i guess it depends what innovation you would like to use. but the reality is again, with the election of an african-american president, the nomination of a latina on the supreme court if she were to get confirmed, we are seeing again come incredible milestone is being reached in this country when it comes to race and ethnicity. but the reality is is that for the fact that we have success with these individuals, they are still a lot of communities out there and a lot of individuals and families that are still in search of the american dream and still struggling and you can only look at the economy today to understand that the on employment rates affecting some in these minority communities or communities of color are actually much higher than other communities.

you know, we need to think about what that means, not just for the sake of those communities, but really for the sake of the country and the sake of repairing the entire economy. so, i think we definitely have demographics in this country that reflect that there is a change that is occurring and that there is more of a growing mixture of different communities of color and certainly in the latino community we have seen the fastest-growing demographics in the country. but the reality is that we need to address issues that face these communities because it makes sense to do so for the best interest of our country and by investing in these communities we are investing in the future of the country, the demographics dictate that. >> host: c-span will be of course broadcasting a live confirmation hearings this week, and you can also go on line to c-span.org and click on the

control room. that gives you a variety of camera angles and you can be your own director and pick and choose what you want to watch. if you want to watch the senators, judge sotomayor or see the room at large, that is all at c-span.org. you mentioned you were there yesterday. we've talked to a variety of reporters who cover confirmation hearings and they said it was standard procedure and nothing out of left field. but what did it mean to you personally to witness that? >> guest: it didn't seem standard to me. it was possible in terms of feeling a strong sense of pride in this moment certainly for the latino community and i think for the country. but when the judge introduced her family and in particular made a reference to her mother and the struggles that her mother had gone through to sacrifice and provide for her children, it really is compelling it resonates with so many beyond the latino community, because it is that story of the american dream.

and seeing that great success, but it requires hard work. and for judge sotomayor and her mother, it required a real dedication to persistence and excellence and for many in our community, we see that as a significant achievement. i think the whole country should see it as a achievement. her story is a very compelling story. as someone who really grew up in a project in the bronx, and again, lost her father at a very young age. i believe she was 9-years-old. and so her mother, left to fend for her and her brother, worked hard, studied to be a nurse. this is really the core values and qualities that we see that run across the latino community and i think that personified again that a great american dream. >> host: ghanian joins of the democrats calling from houston, texas. >> caller: hello?

>> host: good morning, diane. welcome. >> caller: i live in houston, and houston is a city that african-americans and whites seem to have a great deal of difficulty finding construction work, warehouse work. those jobs are all owned now by the latinos. and you say that your organization isn't a racist organization. i think that it is. because all that you care about is latinos. we are americans. we care about all americans. >> guest: well, we are americans, too. latinos are american. we have, again, a great record of country to into this country in so many ways. and in particular, making the ultimate sacrifice and that'll and an war on behalf of this country. i mean, we have lost so many lives.

hispanics who have served had a disproportionate rate and often times on third with congressional medals of honor in a disproportionately higher rate than the population and rate of service. we know what it's like to contribute mightily to this great country. and as an organization, we are very proud of the fact that we have 40 years of service. we are singled out in a book last year. it's called quote code forces for good." and singled out and highlighted the top 12 nonprofits in the country. non-hispanic nonprofits the top 12 nonprofits in the country that have effective programs and documented sort of the quality and accountability of the work of these organizations. included teach for america, habitat for humanity and the national council la raza. and i think the fact it was endorsed by jim collins, someone who's been well recognized in writing the book from good to

great, david gergen has endorsed this book -- we have a record of service now over 40 years of being a well recognized nonprofit in this country, and we have done it because that recognition comes because we've been able to contribute to programs that help children and families have access to education and health care and home ownership. and the reality is that we are an american institution that has a great record of service. i know that oftentimes there are tensions in the african-american and hispanic communities and tight economy oftentimes there are folks who want to create wedges singing that we are competing against each other for jobs but the reality is that we have worked very hard with the national urban league at the national council la raza and with the naacp, and with other african-american organizations because we understand that we have common issues that we face and if we come together we can

advance all of our communities and left everyone up. >> host: on the independent line of your joints from bridgeport, conn. >> caller: good morning, ladies. i don't know where to start but i would like to state some facts and history so maybe people understand. first of all i would like to say i hope she gets the nomination and i hope she does a good job for everybody because everybody is a human being first of all, first and foremost. first of all, a lot of people, whether you're white or black. first of all you have to realize your part of it and you don't even know it and whites, too. border ricans are a blend of european, african and -- [inaudible] now, when christopher columbus landed everything changed. the genocide our people, they had to bring over blacks, the blacks from africa integrated with us. you understand? so when you see mexicans coming

across the border something made by europeans, too. people have to realize all these things. they got taken over the colony in what was it, 1898 of the united states under false pretense when we were about to gain independence, you know? to people still know that we are a colony of the united states? you understand? people who talk all this junk, porter ricans are the first ones at the line at war. they get our people to fight all these wars. the first person to lose their life, nobody even notices the first person to lose his life in this war was a porter rican. the lady said something -- this is the last thing i will say -- the leedy said something about living the american dream. and i agree with you, ma'am. i think this is shenanigans, you know, it is about justice.

thank you. >> guest: yes, well i think a plank in there that is worth recognizing -- i think there's still so many in the united states and in america who don't recognize the relationship of puerto rico and the united states. but porter ricans are united states citizens, and while the status of puerto rico is always an issue of contention in terms of many in congress wanting to change the status and create statehood or create independence, the reality is that it is a part of this united states and we have a rich history of individuals in the border rican community making great contributions and as hispanics we work across porter rican community, the cuban-american community, the mexican-american community and while we are not a monolithic group, south americans, central americans, there are common bond is we have among us including ties to language and culture. you know, but everybody has i

think a sense of pride when it comes to their ethnicity and some sense of identification with that. but ultimately i think there is very few that would somehow not understand or accept the fact they embrace being americans. and as americans i think recognizing the differences that we have among the demographics in this country is something that we have got to reconcile as we move forward. i think it's something we should celebrate. again, everybody and every group brings a unique perspective and contributions. but but it's the richness of this country, and i think that diversity is part of our strength. >> host: let's go to karen on the democrats' line calling from east new jersey. karen, good morning. >> caller: good morning, how are you giving? i just want to say absolutely

two la raza wonderful, excellent work that you do. i have to apologize for one of the previous callers. just from her voice she sounded like she is african-american and i also african-american and once again i have to say wonderful work you do and wonderful work with other minority organizations. and my question to you and i will make it short, what will la raza do to continue to ensure that latinos -- and i work very closely with that community -- continue to have socio-economic and political mobility in this country despite this historical advances being made like sotomayor, who will, god willing, be confirmed? and also we have an african-american president and i constantly hear people say there is no more racism in america. i have a friend right now who is locked out of a public residency program based on discrimination. i hear people say there is no more racism. i see the wonderful, beautiful

achievement and she is overqualified for her position, judge sotomayor. how do you keep that from over shattering -- overshadowing the communities still hoping for equality in this country and to be considered americans? and i put that in quotes because that socio-economic and political mobility is not available. >> guest: it's a thoughtful question, and i understand. i know the naacp is celebrating their 100th anniversary this year. and my good friend, their president, quote it recently you can't have a post race america until we are really opposed racial. and you can look at, again, the advancements and electing president barack obama as president and having sonia sotomayor as judge. but the call identified you still have instances across-the-board of inequality. and i think their needs to

opportunities for folks to advance and have access to information in la raza and to do that, again, we found by working together with across communities, the asian community, other communities and quite frankly we've done work in the past with the heritage foundation and other establishment organizations because we understand that we can leverage partnerships to advance the greater good for everyone and i think that's really important, but the reality is -- and ben mentioned this, the head of the naacp -- on the one hand you have supreme court justice sotomayor and president barack obama and these great positions or nominated for these great positions, sonia sotomayor, but just less than a week ago you still have little african-american children being denied access to a swimming pool because there were some of that thought they were afraid or fearful of what that could mean for the other children.

there's still a lot of work to be done with perceptions. but the reality is there's still a lot of work to be done at the socioeconomic level to pripet advancements and that's why the programs that will help to promote through a network of 300 community-based organizations through the country that servant officials and families in the areas of education, early childhood education, teaching english and also making sure access to health programs, all of that is important and i think we are going to continue to do that so that we can continue to open the door to the american dream for everyone.

supreme court nominee judge -- unanswered questions today from members of the senate judiciary committee. she was asked about her judicial philosophy and about comments she made in speeches over the years. this is in six out -- hours.

[inaudible conversations] [inaudible conversations] >> good morning, everybody. just so we can understand what's going on -- i'm not sure whether we have votes today, to the extent we do have the votes, to the extent we can keep the hearing going during votes and have different senators leave, between them we will. if we can't, then i will recess for those votes. i will also have -- a guess we are one minute early here. with the way the traffic was today, i think some people are still having trouble getting in here. i talked with senator sessions about this -- excuse me -- and what we are going to do is have

30 minute rounds. we will go back and forth between, between sides. and senators will be recognized based on seniority. if they, are there. if not, then we will go to the next person. with that, as i said yesterday when we conclude, and now the american people finally have heard from judge sotomayor, and i appreciate your opening statement yesterday. you have had weeks of silence. you've followed the traditional way of nominees. i think you've visited more senators than any nominee i know

what for just about any position but we get used to the tradition of the press outside, questions are asked, you get a nice way of and keep going. but finally were able to speak and i think your statement yesterday went a long way to answer the critics and the naysayers so we are going to start with the questions here. i would hope everybody will keep their questions pertaining to you and to your background as a judge. you're going to be the first supreme court nominee in more than 50 years who served as a federal trial court judge, the first in 50 years to have served as both a federal trial court and a federal appellate court judge. let me ask you one of the obvious ones, what is the quality a judge should possess?

you had time at the trial court and appellate court what qualities should a judge have and how has the experience you've had, how does that shake your approach to being on the bench? >> senator leahy, yesterday many of the senators emphasized that the values they thought were important for judging, and central to many of their comments was the fact that a judge had to come to the process understanding the importance and respect the constitution must receive in the judging process and an understanding that that respect is guided by and should be guided by a full appreciation

of the limited jurisdiction of the court in our system of government but understanding its importance as well. that is the central part of judging. what my experience is on the trial court and the appellate court have reinforced for me is that the process of charging is a process of keeping an open mind. it's the process of not coming to a decision with a prejudgment of an outcome and that reaching a conclusion has to start with understanding with the parties are arguing but examining in all situations who carefully the fact some as they prove them or not approve them, the record as

they created, and then making a decision that is limited to what bill ball says all the facts before the judge. >> let's go into some of the particulars on this. one of the things i have found appealing in your records you were a prosecutor as many as foss, both of the ranking member and i, had that privilege. and you worked on the front lines of assistant district attorney in the manhattan d.a.'s office. you're former boss, robert morgenthau, the dean of the american prosecutors, said one of the most important cases you worked on this prosecution of the man known as the tarzan burglar. he terrorist people in harlem and with swing ropes on to their apartments and rob them and actually killed three people. you're co-counsel describe how

you through yourself into that elite aspect of the prosecution of the case. you helped secure a conviction, sentenced 62 years to life for the murders. your counsel described you, quote come as a skilled legal practitioner who not only ruthlessly pursued justice but victims of violent crimes, but as to the root cause of crimes, and how to perfect. -- curve it. did that experience shake your view in any way both as a lawyer but also both as a judge? i mean, this was getting into and out as need eager ds you could into the whole area of criminal law. >> i became a lawyer in the prosecutor's office. to this day, i owe who i became

as a lawyer and law had become as a judge to mr. morgenthau. he gave me a privilege and honor in working in his office that has shaped my life. when i say i became a lawyer in his office, it's because in a small school -- wall schools teach you on a hypothetical is. they set forth facts for you. they give you a little bit of teaching on how those facts are developed, but not a whole lot and then they ask you to apply and about legal theory in the legal theory to the facts before you. well, when he worked in a prosecutor's office, you understand that the law isn't legal theory. it's fact. it's what witnesses say and don't say. it's how you develop your position in the record. and then it's taking those facts

and making arguments based on the law as it exists. that's what i took with me as a trial judge. it's what i take with me as an appellate judge. as respect that each case gets decided, case by case, applying the law as it exists to the facts before you. you asked me a second question about the tarzan murder case. and that case brought to life for me in a way that perhaps no other case had done before the tragic consequences of meatless -- needless death. in that case mr. mattocks was

charged because he used acrobatic feats to gain entry into apartments and in one case he took a rope, placed it on a pipe on top of a roof, but a paint can at the other end and threw it into a window in a building below and broke the window. he then swung himself into the apartment and on the other side shot a person he found. he did that repeatedly. and as a result, he destroyed families. i saw a family that had been in tact with a mother living with three of her children, some grand children. they all worked at various jobs. some were going to school. they stood as they watched one of their -- the mother stood as she watched one of her children be struck by