struck the middle of his head. that family was destroyed. they scattered to the four winds and only one brother remained in new york who could testify. that case taught me that prosecutors as all participants in the justice system must be sensitive to the price that crime and imposes on our entire society. at the same time, as a prosecutor in that case, i had to consider how to ensure that the presentation of the case would be understood by the jurors and to do that it was important for us as prosecutors to be able to present those number of incidences that mr.

mr. maddicks engaged in one trial so it could be engaged by a jury. there had never been a case quite like that where an individual who used different acrobatic feats to gain entry into an apartment was tried with all of his crimes and one indictment. i researched very carefully the law and found a theory in new york law called the molyneax theory that basically said if you can show a pattern that established a person's identity or assisted in establishing the person's identity, simplifying the argument by the way, then you could try different cases together. this wasn't a conspiracy under law because mr. maddicks act alone so i had to find a different theory to bring his act together. i presented that to the trial judge. it was a different application

of the law but what i did was to crawl on the principles of the molyneax theory and are giving those principles to the judge the judge permitted the joint trial of all of mr. maddox's activities. in the and developing the facts of the case, making our record i should say, mr. mo was and my case complete, we convinced the judge our feeling was supported by law. that harkens back to my earlier answer which is that is what being a trial judge teaches you. >> well, and hugh -- so you see from both ends having obviously an awful pherae and a theory that is well established in law at that time but you also as a trial judge had seen ferias brought in by prosecutors or by

defense and have to make your decisions based on those. the pretty easy answer to that is you do; do you not? >> well, it's important to remember as a judge i don't make the law and so, the task for me as a judge is not to accept or not accept new of theories. it's to decide what the ball as it exists as principles but are applied to new situations. >> let's go into that, because obviously the tarzan cases in was a unique and as i said, mr. morgenthau singled them out as an example of the kind of lawyer you are. and i find it compelling your story about being -- i've stood

at homes at 3:00 in the morning as they carry bodies out from a murder. i can understand how your feeling. but in applying the law, and applying the facts, you told me once that ultimately and completely the law is what controls. and i was struck by that when you did. and so, there's been a great deal of talk about ricci case, ricci v. destefano. you and to other judges were assigned involving firefighters in new haven and the plaintiffs were challenging the city's decision to voluntarily discard the result of a paper and pencil test to measure leadership abilities and now the new one. number in your circuit. in fact it was a unanimous decades-old supreme court decision as well.

in addition, in 1991 congress acted to reinforce that law. i might note every republican member of this committee still serving in the senate support that statement of the law. so you have a binding precedent. you and to other judges came to a unanimous decision. your decision deferred to the district court's ruling allowing the city's voluntary determination that could not justify using that paper and pencil test under our civil rights laws. and using it was settled precedent. a majority of the second circuit later voted not to revisit the panel's unanimous decision there for the appellate court decision. so you had supreme court precedent. you had your circuit precedent. you were up held within the circuit. subsequently, it went to the supreme court, and five -- a

garre majority -- five justices reversed the decision, reversed their president, and many have said that they created a new interpretation of law. ironically, if you had done something other than follow the precedent, some would be now attacking you as being an activist. he followed the precedent. so now the attack you as being racist and biased. it's kind of a unique thing. you're damned if you do and damned if you don't. how do you react to the supreme court's decision in the new haven firefighters' case? >> you are correct, senator, that the panel made up of myself and to other judges in the second circuit, decided that case on the basis of the very thorough 78 page decision by the district court and on the basis of the established precedent.

what we would do or not do, because we were following precedent, and you went on circuit court are obligated on a panel to follow established circuit precedent. ricci is when it was presented with a challenge to one of its tests for promotion. this was not a quota case, this was not an affirmative action case. this was a challenge to the test everybody agreed to have a very wide difference between the past three of a variety of different groups. the city was faced with the

possibility recognized in law that the employees who were desperately impacted -- and the law, and that is a part of the civil rights amendment that you were talking about in 1991 -- that those employees who could show a disparate impact, a disproportionate past rate, that they could bring a suit and that the employer had to defend the test that it gave. the city here, after a number of days of hearings and a variety of different witnesses, decided that it wouldn't certify that test and it wouldn't certify it in an attempt to determine whether they could develop a test that was of equal value in measuring qualifications, but which didn't have a the disparate impact.

and so the question before the panel was, was the decision a -- of the city based on race or based on its understanding of what the law required to do? given second circuit precedent, bushy the new york state -- new york state civil service commission, the panel concluded that the city's decision in that particular situation was lawful under established law. the supreme court, and looking and reviewing that case, apply a new standard. in fact, it announced that it was applying a standard from a different area of law and explaining to in players and the

courts below how to look at this question in the future. >> but when you were deciding -- when you were deciding it, you had precedent from the supreme court and from your circuit that basically determined how -- determined the outcome you had to come up with; is that correct? >> absolutely. >> and if today, now that the supreme court has changed their decision without you having to litigate the case, it would -- it may open obviously a different result. certainly the circuit would be bound by the new decision even though it's only five to four decision, the circuit would be bound by the new decision of supreme court; is that correct? >> absolutely sir. that is now the statement of the supreme court of how and lawyers in the court should examine this issue.

>> during the course of this nomination, they're have been some unfortunate comments, including outrageous charges of racism made about you on radio and television. some -- one person referred to you as being the equivalent of the head of the ku klux klan. another leader in the other party referred to you as -- as being a bigot. and to the credit of the senators, the republican senators as well less the democratic senators, they have not repeated those charges. but you haven't been able to respond to any of these things. you've had to be quiet. your critics have taken a line out of your speeches and twisted it, in my view, to mean something you never intended. you said that, quote, you would hope that a wise latino woman with the richness of her experiences would reach wise decisions. i remember other justices -- the most recent one, justice alito

-- talking about the experience of his immigrants -- the immigrants and his family and how that would influence his thinking and help him reach decisions. what -- and you also said in your speech, and i quote, that you love america and value its lessons that great things can be achieved if one works hard for it. and then you said judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. and i will throw one more quote in there. it's what you told me. that ultimately and completely, the law is what counts -- or the law is what controls. so tell us, you have heard all of these charges and countercharges, the wise latina and on and on. here's your chance.

que callis -- you tell us what's going on here, judge. >> thank you for giving me an opportunity to explain my remarks. no words i have ever spoken or written have received so much attention. [laughter] i gave a variant of my speech to a variety of different groups, most often to groups of women lawyers or to groups, most particularly, of a young latino lawyers and students. as my speech made clear in one of the quotes that you referenced, i was trying to inspire them to believe that their life experience this would enrich the legal system, because different life experiences and back crounse always do. i don't think that there is a quarrel with that in our were

society. i was also trying to inspire them to believe that they could become anything they wanted to become, just as i had. the context of the words that i spoke have created a misunderstanding, and i want -- and misunderstanding -- and to get everyone assurances i want to state up front unequivocally and without doubt, i do not believe that any ethnic, racial or gender group has an advantage in sound judging. i do believe that every person has an equal opportunity to be a good and wise judge regardless of their background or life experiences. the words that i use, i used agreeing with the sentiment that justice sandra day o'connor was attempting to convey. i understood that sentiment to

be with i just spoke about, which is that both men and women were equally capable of being wise and fair judges. that has to be what she meant, because judges disagree about the cloud comes all of the time -- or i shouldn't say all of the time, at least in close cases they do. justices on the supreme court come to different conclusions. it can't mean that one of them is unwise, despite the fact that some people may think that. so her literal words couldn't have meant what they said. she had to have meant that she was talking about the equal value of the capacity to be fair and impartial.

>> well, and isn't that what -- you've been on the bench for 17 years. have you set your goal to be fair and show integrity based on the law? >> i believe my 17 year record on the two courts would show that in every case that i render i first decide what the law requires under the fact thank you me, and yy do is explained to the litigants why the law requires a result and whether their position is sympathetic or not, i explain why the result is commanded by the law. >> well, and doesn't your oath of office actually require you to do that? >> that is the fundamental job

of the judge. >> let me talk to you about another decision that's been talked about, district of columbia forces heller. they held the second amendment guarantees americans to keep and bear arms and there's an individual right. i phoned firearms since my early teen years i suspect a large majority do. i enjoy target shooting at our home so i watch the decision of rather carefully. and i found it interesting -- is it safe to say that you accept the supreme court's decision as establishing that the second amendment right is an individual right? is that correct? >> yes, sir. >> thank you. and in the second circuit decision, maloney versus cuomo

you recognize the supreme court decided in heller that the personal right to bear arms is guaranteed by the second amendment of the constitution against federal law restrictions; is that correct? >> it is. >> and you accept and applied the heller decision when you decided maloney? >> completely. i accepted and applied established supreme court precedent that the supreme court in its own opinion in heller acknowledged answered a different question. >> well in fact, let me refer to that because justice scalia's opinion in the heller case, expressly left unresolved and explicitly reserved as a separate question whether the second amendment guarantee applies to the states and laws adopted by the states. earlier this year you were on the second circuit panel in a case posing that specific

question, analyzing a new york state law restriction on so-called chuka sticks, a martial arts device. now, the unanimous decision of your court cited supreme court precedent as binding on your decision and the supreme court -- longstanding supreme court cases have held that the second amendment applies only to government and not to the states and i noticed -- we know not every constitutional rights have been applied to the states by the supreme court. i know of one of my first case is as a prosecutor it was a question whether the fifth amendment guaranteed the five grand jury eight. the supreme court has not held

that applicable to the states. seventh amendment right to jury trial, eighth amendment prohibition against excessive fines. these have not been made applicable to the states. and i understand that petitions seeking to have the supreme court revisit the question apply to the second amendment to the states are pending so obviously they are not going to ask that case to appear before the supreme court and you're there and holguin to rule -- how your going to rule but when you have an open mind as the supreme court is evaluating that proposition, whether the second amendment rights should be considered fundamental rights? and thus applicable to the states? >> like you, i understand that how important the right to bear arms as to many, many americans.

in fact, one of my got children is a member of the nra, and i have friends who hunt. i'd understand the individual right that the supreme court recognized in heller. as you pointed out, senator, and the heller decision the supreme court was addressing a very narrow issue, which was whether an individual right under the second amendment applied to limit the federal government's rights to regulate the possession of firearms. the court expressly -- justice scalia in a footnote -- identified that there was supreme court precedent that has said that right is not incorporated against the state's. what that term of incorporation means and law is that right doesn't apply to the states and

its regulation of its relationship with its citizens. a supreme court province, their right is not fundamental. it's a legal term. it's not talking about the importance of the right in a legal term. it's talking about isn't that right incorporated against the state's. wind maloney came before the second circuit, as you indicated myself and to other judges read with what the supreme court said saw that it had not explicitly rejected its precedent on application to the states and followed that precedent because it is the job of the supreme court to change. you asked me -- i'm sorry, senator i didn't mean to cut you off. you asked me whether i have an open mind on that question. absolutely. my decision in maloney and any type of this case would be to follow the precedent of the

supreme court when it speaks directly on an issue and i would not prejudge any question that came before me if i was a justice on the supreme court. >> i just asked senator sessions if i might want to ask one more question and it goes to the area of prosecution. you've heard appeals and over 800 criminal cases. you have heard 90% of violent crimes including terrorism, 99% of the time at least one of the republican appointed judges on the panel agreed. let me ask about the united states versus donald as the mayor of watery connecticut the victims in that case with as a young daughter and niece of a prostitute, young children as young as nine and 11 were forced to engage in sexual acts with the defendant. the mayor was convicted under the law passed by congress prohibiting the use of any

facility or means of interstate commerce to transnet or contact information about a person under 16 for the purpose of illegal sexual activity. you spoke unanimous panels which include judge jacobs and judge hall. you upheld the conviction against the constitutional challenge that the federal criminal statute in question exceeded congress's power to the commerce clause. i mention that only because i appreciate your difference as the constitutional authority to prohibit illegal conduct. did you have any difficulty reaching the conclusion you did in the giovanni caisse? >> no sir. >> thank you. i'm glad you reached it. senator sessions, and i appreciate senator sessions forbearance. >> welcome. it's good to have you back family, friends and supporters i hope we will have a good day

today and i look forward to dialogue with you. i've got to say i liked your statement on the finality of the law yesterday and some of your comments this morning and i also have to say had you been saying that with clarity over the last decade we would have fewer problems today because you had evidence to i think it's quite clear a philosophy of law that suggests the judges background and experiences can and should and naturally will impact their decision which i think it goes against the american idea and both the judge takes to be fair to every party and every day when they put on that road that is a symbol that they are to put aside their personal biases and prejudices. so i would like to ask you a few things. by what just note that it's not

one sentence as my church and suggested that causes difficulty. it is a body of thought over a period with tears that causes difficulty and i would suggest the quotation he gave wasn't exactly right on the wise latina commented that you made you have said i think six different times i would hope ay's latino woman with the riskiness of her experiences with more often than not reach a better conclusion. so that is a matter i think we'll talk about as we go forward. let me recall to yesterday you said it's simple to law that the task of the judge is and to make what it is to apply the law. i heartily agree with that, however you previously have said the court of appeals is where policy is made.

and you say it in another location the law lawyers practice and judges declared is not a definitive, capital l, many like to think exist. i'm asking what do you really believe on those subjects that there is no real small and judges do not make the law or that there is no real law and the court of appeals is where policy is made. discussed that with us, please. >> i believe my record of 17 years demonstrates fully that i do believe judges must applied all and not make the law. whether i have agreed with a party or not found than sympathetic or not in every case i have decided i have done what the law requires.

with respect to judges making policy, i assume, senator, that you are referring to a remark that i made in a duke law student dialogue. that remark in context made very clear that i wasn't talking about the policy reflected in law that congress makes. that's the job of congress to decide what the policy should be for society. in the conversation with the students i was focusing on what district court judges to in the circuit court judges to and i noted the district court and the apply the facts to the individual case and when they do that they are holding their findings dustin to find anybody else. appellate judges, however, establish a precedent.

they decide what the law says in a particular situation. that precedent has policy ramifications because it blind is not just the litigants in that case, it mind so -- binds all in the president. i think if my speech is heard outside of the minute and a half that presents and its full context is examined that it's very clear that i was talking about the policy ramifications of president and never talking about appellate judges or courts making the policy congress makes ..

yesterday you spoke about your páoa@ dn#@ @ @ @ @ @ @ @ @ @ @ never their prejudices. i was talking about the very important goal of the justice system is to ensure that the personal pisces and prejudices of a judge do not influence the outcome of a case.

what i was talking about was the obligation of judges to examine with what they're feeling as their adjudicating a case and to ensure that that is not influencing the outcome. life experiences have to influence you're. we are not robots to listen to evidence and don't have feelings. we have to recognize those feelings and put them aside. that is what my speech was saying -- because that's our job. >> but the statement was i willingly accept that we who judge must not deny the differences resulting from experience and heritage, but continuously to judge when those opinions and come as a base and precious as our appropriate, that's exactly opposite of what you're saying, is it not? >> i don't believe so because all i was saying is because we have a feeling center even experiences we can be led to

believe that our experiences are appropriate. we have to be open-minded to except that they may not be, and that we have to judge always that we are not letting those things determine the outcome. but there are situations in which some experiences are important in the process of judging because of the law asks us to use those experiences. >> well, i understand that, but let me just follow up that to say in your statement that you want to do to can to increase the pace and the impartiality of our system, but isn't it true this statement suggests that you except that there may be sympathies, prejudices and the opinions that legitimately can influence a judge's decision? and how can that further faith and the impartiality of the system?

>> i think this system is strengthened when judges don't assume where impartial, but when judges test themselves to identify when and their emotions are driving a result or their experience are driving a result of a lot is not. >> i agree with that. >> i know when judge fess says if he has a feeling about a case he tells the law clerks watch me, i do not want my bias is, as of this or prejudices' to influence this decision which i've taken an oath to make sure is impartial. i just am very concerned that what you're seeing today is quite inconsistent with your statement that she willingly accept that tracinda phase, opinions and prejudices may influence your decision making. >> well, as i have tried to explain, what i try to do is to ensure that they are not. if i ignore them and believe

that i'm acting without them, without looking at them and testing that i'm not, then i could and consciously or otherwise be led to be doing the exact thing i don't want to do bridges to the something but the law command a the result. >> well, yesterday you also said that your decisions have always been made to serve the larger interest of impartial justice, a good it aspiration i agree. but in the past you have repeatedly said this: i wonder whether achieving the goal of impartiality is possible at all and even most cases and i wonder whether by ignoring our differences as and when men, men or people of color we do a disservice to both a law and society. now are to saying that you expect your background and

heritage to influence your decision making? >> what i was speaking about in that speech and was -- harkened back to what we were just talking about evidence ago which is life experiences do influence us in good ways. that is why we seek the enrichment of our legal assessment -- legal system from my experiences and that can affect what we see or how we feel, but that's not what drives a result of. the impartiality is an understanding that the law is what commands a the result. and so it to the extent that we are asking the questions, as most of my speech was an academic discussion about what should we be thinking about, what should we be considering in this process, and excepting that life experiences could make a difference. but i wasn't encouraging the

bully for attempting to encourage the belief that i thought that that should drive the results. >> judge, i think it's consistent in the kansai quoted to you and your previous statements that to do believe is your backgrounds will except -- i read the results in cases and that's troubling made. so that is not impartiality. don't you think that is not consistent with your statement, that to believe your role as a judge is to serve the larger interest of impartial justice? >> no, sir. as i have indicated my record shows that no point where time have i ever permitted my personal use our sympathies to influence the outcome of a case. in every case where i have identified a sympathy i have articulated it and explain it to the litigant why the law requires a different result.

>> judge. >> i do not permit my sympathies, personal views or prejudices' to influence the outcome of my cases. >> well, you said something similar to that yesterday that in each case i applied the law to the ask at hand, but she repeatedly made this statement: quote, i'd accept the proposition that -- i accept the proposition that a difference and there will be by the presence of women and people of color on the bench and that my experiences affect the fax i choose to see as a judge. first, that's troubling to me as a lawyer. when i present evidence i expect the judge to hear and see all the evidence that is presented that. how is inappropriate for a judge ever to say that they will choose to see some facts and not others? >> is not a question of choosing to see some pacs or another, senator.

i didn't intend it to suggest that and in the wider context when i believe i was -- the point i was making was that our life experiences to permit us to see some facts and understand them more easily than others, but in the end you're absolutely right. that's why we have appellate judges that are more than one judge because each of us from our life experiences will more easily see a different perspective as argued by parties, but judges to consider all of the arguments of litigants'. i have a. of most of my opinions and not all of them explained to party is why the law requires when it does. >> do you stand by your statement that my experiences of my to the backside to 60? >> no, i don't stand by the understanding of the statement that i will ignore other racks

or other expenses because i have had them. i do believe that life experiences are important to the process of judging, they help you to understand and listen, but that the law requires a result and it would command you to the facts that are relevant to the disposition of the case. >> well, i will just no to him in that same individual speeches about seven times over a number of years span. in and it is concerning to me so i would just say to you i believe in judge souter bombs formulation. she said and you disagreed and this was really the context of your speech and you use her statement as sort of a beginning of your discussion and you said she believes that a judge the matter what their gender our background should strive to reach the same conclusion. and she believes that's

possible. you then argued that you don't think it is possible in all, maybe even most cases. you deal with the famous quote of justice o'connor in which she says it was old man should read to the same decision as a wise old woman. and you pushed back from that. you say you don't think that's necessarily accurate and you doubt the ability to be objective in your analysis so how can you reconcile your speeches which repeatedly assert that impartiality is a near aspiration which may not be possible in all are in most cases with your oath that you taken twice which requires impartiality? >> my friend, the judges here this afternoon and we are befriends and i believe that we both approached judging in the

same way which is looking at the facts of each individual case and applying the law to those facts. i also as i explained was using a rhetorical flourish that fell flat. i knew that justice o'connor couldn't have meant that if judges reach different conclusions -- legal conclusions, that one of them was and why is. that couldn't have been her meaning because reasonable judges disagree on legal conclusions in some cases so i was trying to play on her words. my play was a -- bell flat. it was bad because it left an impression that i believed that life experiences command of a result in a case, but that's clearly not what i do as a judge. in it's clearly not what i intended in in the context of my

broader speech which was attempting to inspire young hispanic, latino students and lawyers to believe it that their life experiences added value to their process. >> well, i can see that perhaps as a lay person's approach to it, but as a judge who has taken this of, i am very troubled that you have repeatedly over a decade or more made statements that consistently -- anywhere reading of the speeches -- consistently argues that this ideal and commitment i believe every judge is committed, must be to put aside their personal experiences and biases and nature that that person before them is a fair day in court. judge, so philosophy can impact your judging. i think it is much more likely to reach full flower if you sit on the supreme court and then

you will on a lower court where you're subject to review by your colleagues in the higher court and so with regard to how you're approach law in your personal experiences, let's look at the new haven firefighters case, the ricci case. that is the city of new haven told firefighters said they would take an exam, set forth the process for it, that would determine who would be eligible for promotion. the city spent a good deal of time and money on the exam to make it fair test of a person's ability to seek, to serve as a supervisory firemen which, in fact, has the awesome responsibility and times to send it there are men into a dangerous building that's on fire and had a panel that did oral exams in and that wasn't all written, consisting of one hispanic and one african-american and one white.

and according to the supreme court, this is what the supreme court held: the new haven officials were careful to ensure broader racial participation in the design of the test and its administration. the process was open and fair. there was no genuine dispute that the examinations were job-related and consistent with business purposes, a business necessity. but after the city saw the results of the exam, it threw out those results because, quote, not enough of one group did well enough on the test. the supreme court then found that the city and i quote, rejected the test result solely because the higher scoring candidates were white. after the tests were completed, the arar ratio results became the predominant rationale for the city's refusal to certify

the results. closed quote. so you stated that your background of tax the tax -- the fax to fax you choose to see, was that bad that the new haven firefighters have been subject to discrimination, one of the fax 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 on the seventh circuit in an opinion offered by judge easterbrook, i'm sorry. i misspoke. it was judge posner, saw the case in an identical way. in either judge, i'm confused some statements that senator leahy made with the case and i apologize. in a very similar case, the sixth circuit approached a very similar issue in the same line sell a variety of different

judges on the appellate court looking at the case in light of established supreme court and second circuit precedent and determined that the city facing potential liability under title seven could choose not to certify the test if it believed an equally good test could be made with a different impact on affected groups. the supreme court as its tenth is his prerogative in looking at a challenge weinberg establish a new consideration and/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 to that issue that way because it was an argument to us in the case before us because the case before us was based on existing

precedent so it's a different test. >> judge, there was -- apparently and use within your panel. i was really disappointed and i think a lot of people have been that in the opinion was so short comment it was per curiam in did not discuss the serious legal issues that the case raised and i believe that's legitimate criticism of what you did. but it appears according to stuart taylor, a respected legal right on the national journal, stuart taylor concluded that it appears that judge come rawness was concerned about the outcome of the case, was not aware of it because it was per curiam unpublished opinion the began to raise the question of whether rehearings should be granted. you say you are bound by the

superior authority but the fact is when the question every hearing that second circuit authority that use a cover the case, some said it did not cover it so clearly, but that was up for debate and the circuit voted. you voted not to reconsider the prior case. you voted to stay with the decision of the circuit to. and, in fact, your vote was the key vote. have you voted with the judge himself, himself a of a puerto rican ancestry -- have you voted with him and you could have changed that case so in truth you aren't bound by that case has using it in a different way. you must have agreed with it and agree with the opinion and stayed with it until it was reversed by the court. let me just mention this. in 1997 -- >> is that a question? >> well, that was a response to

some of which 27, mr. chairman, because you misrepresented actually with the posture of the case. >> well obviously will disagree with that but that, we'll have a chance to vote on this issue. >> in 1997 when you came before the senate and i was a new center i ask you this -- in a suit challenging a government racial preference in quota or set aside, will you follow the supreme court decision and at random and subject racial preferences to the strictest judicial scrutiny, quote. in other words, i asked you would you follow the supreme court's finding decisions. in that the supreme court held that all governmental discrimination including affirmative action programs that discriminate by race of an applicant must face strict scrutiny in the courts.

in other words, this is not a light thing to do. it won one race is favored over another, you must have a really good reason for it or is not acceptable. after that the government agencies must prove there is a compelling state interest and support of any decision to treat people differently by race. this is what two answer: in my view the court correctly determined that the same low of scrutiny applies for the purpose of evaluating the constitutionality of all government classifications whether at the state or federal level based on race, quote, so that was your answer and it deals with government being the city of new haven. he made a commitment to this committee to follow adarand. in view of this you gave me 12 years ago. why are the words adarand chemical protection, and a strict scrutiny are completely missing from any of your panel

discussion on this decision? >> because of those cases are not what was at issue in this decision and, in fact, those cases were not what decided the him the supreme court's decision. the supreme court parties are not arguing the level of scrutiny that would apply with respect to intentional discrimination. the issue is a different one before our courts and the supreme court which is what's the city to do when there is proof that its test this currently 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 a substantial basis in evidence to believe it would be held liable under the law.

those are two different standards, two different questions medicates would present. >> but judge, it wasn't that simple. this case was recognized pretty soon as a big case at least. i noticed what perhaps kicked out judged concern was a lawyer saying it was the most of foreign discrimination case that the circuit had seen in 20 years. they were shocked, they got basically one paragraph decision on sign back on that case. the judge apparently raised the issue within a circuit can ask for a rehearing. you're vote made the difference in not having a rehearing in bank. and he said it, quote, municipal employers could reject the results in talking about the results of your test, the impact of your decision -- municipal employers to reject the results of an employment examination

whenever those results failed to yield a desirable outcome or fail to satisfy a racial quota. close quote. so that was judged chabad thus analysis of the impact of your decision and he thought it was very important. he wanted to review this case. he thought it deserved a full and complete analysis and opinion. he wanted the whole circuit to be involved in it and to they said that some prior president of the circuit was different, the circuit could have reversed that president had they chose to do so. don't you think -- tell us how it came to me that the simpson case was dealt with in such a cursory manner. >> the panel decision was based on a 78 page district court opinion. the opinion reverence it. it is per carry and mccourt inc. differently but it was

referenced by the circuit and it relies on the very thoughtful and thorough opinion by the district court in that opinion discussed second trip president in its fullest, to its fullest extent. the justice had one year of the case, the panel had another. the majority of the vote -- it wasn't just my vote -- the majority of the vote, not just my vote, denied the petition for rehearing. the court's left to the supreme court the question of how an employer should address what no one disputed was prime of asia evidence that its test desperately and impacted on a group. that was undisputed by everyone, but the case law did permit employees who have been desperately impacted to bring a suit. the question was for a city

wasn't racially discriminating when it didn't except in those tests or was attempting to comply with the law. >> well, judge, i think it's not fair to say that a majority -- i guess it's fair to say a majority voted against rehearing. but it was six to six. unusual that one of the judges have the talent to appellate decision and your vote made the majority not to read here it. do you -- and that ricci did deal with some important questions. some of the questions we have got to talk about as a nation, we've got to work our way through. and others concern on both sides of this issue and we should do it carefully incorrectly, but you think that frank ricci and and the other firefighters whose claims to dismissed build that their arguments and concerns were a properly understood and knowledge by such a short

opinion from the court? >> we were very sympathetic and expressed your sympathy to the writers who challenged the city's decision, mr. ricci and the others. we stood to the everetts -- we understood the areas that they had made in taking the test, we said as much. they did have before them a 70 page their opinion by the district court. they obviously disagree with the law as it stood under second circuit precedent. that is why they were pursuing their claims and did pursue them further. in the end, the body that had the discretion and power to decide how these tough issues should be decided let alone the president that had been the recognized by our circuit court and another, at least the sixth circuit, but along with the court thought would be the right test our standard to apply and

that is what the it supreme court did. in hansard at 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. of the panel was dealing with president -- president and arguments that rely on our precedent. >> thank you, judge and i appreciate this opportunity and i would just say though i had the procurements opinion stood without a rehearing question by one of the judges and the whole circuit and kicked out the discussion, it is very very unlikely that we would have heard about this case with the supreme court would have taken a nap. thank you, mr. chairman. >> thank you. obviously we can talk about your speeches, but ultimately we determine how you act as a judge and how you make decisions. i will put into the record in

the american bar association which has unanimously -- unanimously given you their highest rating. i 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 will put in the congressional research service which analyzed your cases and found that two consistently deal with the law and with stare decisis, the upholding of past judicial precedent. i have put in it that that non-partisan brennan center of town you solidly in the mainstream and then another analysis of more than 800 and of your cases which found you followed traditional consensus judge on criminal-justice issues. i thought i'd put those then

and. it's one thing to talk about speeches you might give. i'm more interested on cases he might decide it. senator coal? >> thinking very much, mr. chairman and good morning, judge sotomayor. >> good morning. >> senator sessions has been a great deal of time on the new haven case and so i would like to see if we can put it into some perspective but. isn't 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 five to four margin? so do you agree, judge, that was a close case and that reasonable minds could have seen it 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 in the case that is true. as to what the legal conclusion

should be in a case. but the panel at least as the case was presented to itself was relying on the reasonable deuce that second circuit precedent had established and so to the extent that one as a judge and here's to precedents, because it is that which guides and give stability to the law, then those reasonable minds who decided the president and the judges to apply and are coming to the legal conclusion they think the facts and law require. >> all, right. 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 able to put your personal views aside but i believe rather than pulling lines of speech is often times out of context the better way is to examine your record as a

judge. in iraq when i asked now justice -- justice alito what's when a judge he would make, he said if you want to know what sort of justice i would make what it was ordered judge i have been. so you have served now as a literal judge for the past 17 years, the last 11 as an appellate court judge. if we examine the record i believe it is plain that you are a careful jurist, respectful of president and author of dozens of modern and carefully reasoned decisions. the best evidence i believe is in frequency with which you have been reversed. you have authored over to an authority majority opinions in 11 years on the second circuit court of appeals but in only three of those 230 plus cases have your decisions been reversed by the supreme court - a very low reversal rate of 2%. doesn't this very low reversal rate indicates that you do have, in fact, an ability to be faithful to the law and put your

personal opinions and background assigned when deciding cases as you have in your experience as a federal judge? >> i believe what my record shows is that i follow the law and that my small reversal rate visavie the vast body of cases that i have examined as you mention, the opinions i have often been i've been a participant and thousands more that have not been either reviewed by the supreme court or reversed. >> well, i agreed with what you're saying. and i would like to suggest that this constant criticism of view one in terms of your inability to be an impartial judge is totally refuted by the record that you compiled as a federal judge up to this point. we heard as much recently about

use -- chief justice roberts view that judges are like vampires simply calling balls and strikes so finally we do like to take the opportunity to give is your view about this sort of analogy? >> few judges could claim they love baseball more than i do. [laughter] for obvious reasons but analogies are zero is a perfect and i prefer to describe the judges do, like umpires, is to be impartial and bring an open mind to every case before them. and buy and open mind i mean that a judge who looks at the fax of each case, listens and understands the arguments of the parties and applies the law as a law commands. of is a refrain i keep repeating because of that is my philosophy of judging -- applying the law

to the tax at hand. and that's my description of judging. >> thank you. judge, which current one or two supreme court justices do you must 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 was suggest that i think of myself as a clone to one of the justices. i don't. each one of them bring integrity, their sense of respect to the law, their sense of their best efforts and hard work to come to the decisions that they think the law requires. going further than that would put me in a position of suggesting that by picking one

justice i was disagreeing or criticizing another and i don't wish to do that. i wish i -- i wish to describe just myself perrin i am a judge who believes that the tax triathlon and the conclusion that the law will apply to a bad case and when i say drives along, i mean determines how the law will apply in that individual case. if you'd asked me instead, if he would permit me to tell you if justice from the past that i admire for applying that approach to the long, it would be justice cardozo. now, justice cardozo 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 and 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 for -- respect and deference to the legislative branch and to the other branches of government and their powers under the constitution. in those regards, i do admire those parts of justice cardozo, which he was most famous for and i think that is how i approach the long as a case by case application of law to fax. >> thank you. appreciate that. judge sotomayor, many of us are impressed with you in your nomination and we hold you in great regard, but i believe we have right to know when we're getting before we give a lifetime appointment to the highest court in the land. and has confirmation hearings we

have seen nominees until something during our private meetings and in the confirmation hearings and then go to the court and become a justice that is quite different from of the way they betray themselves at the hearing. so i'd like to ask you questions about a few issues that have generated much discussion. first, affirmative action. judge, i would like to discuss the issue of affirmative action. we can all agree that it is good for our society when employers, schools, and government institutions encourage diversity. on the other hand, the consideration of ethnicity or gender should not trump qualifications or turn into a rigid quota system. without asking you how to would rule in any particular case, what do you think of affirmative-action? do you believe that affirmative action is a necessary part of our society today? do you agree with justice o'connor that she expects in 25 years use of racial preferences will no longer be necessary to promote diversity? do you believe

affirmative-action is more justified in education that in employment? where do you think it makes no difference? >> the question of whether affirmative action is necessary in our society are not and what form it should take is always first a legislative determination, in terms of legislative or guarantee employer determination, in terms of one issue it is addressing and what remedy it is looking to structure. the constitution promotes and requires an equal protection of law of all citizens and is 14th amendment. to ensure the protection, there are situations in which race in some form must be considered. of 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 was expressed by justice o'connor and her decision involving the university of michigan law school emissions criteria, that in 25 years reset our society won't be needed to be considered in any situation. that's 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 interests in the admissions case that justice o'connor was looking at, the court recognized that in the education field of. in the state is applying a solution that is very narrowly tailored and their the court and

determine that the what schools use of race is only one factor among many others with no presumption of admission whatsoever was appropriate under the circumstances. and another case, a companion case, the court determined that a more fixed use of race that didn't consider the individual was inappropriate and it struck down in the undergraduate admissions policy. that is what the court has said about the educational use of race in a narrow way appear, the question as i indicated whether that should apply in other contexts as not been looked at by the supreme court

directly. the holdings of that case have not been applied or discussed in another case. the holdings -- about one have to await another state action that would come before the court for the state would articulate its reasons for doing what it did an accord would consider if those actions weren't constitutional or not. >> judge, pushed the door, many critics of the decision as an example of the judiciary and probably inject itself into a political dispute. in our opinion,, to the supreme court even have decided to get involved in bush vs. gore? >> that case took the attention of the nation and there's been so much discussion about what the court did or did not do. i look at the case and my

reaction as a sitting judge is not to criticize it or to challenge it to even if i were disposed that way because i don't take a position on that. the court took have made the decision it did. the question for me as i look at that generous situation, it is only happen once in a lifetime of our country. is that some good it came from that situation -- discussion. there's been a and was enormous electoral 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 the branches become involved in a conversation of how to improve things and as an indicated both

congress who devoted a very significant amount of money to the electoral reform in certain of its legislation and states have looked to address what happened there. >> judge, in a 54 decision in 2005 the supreme court ruled that the kelo vs. city of new london, that it was constitutional for local government 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 and the the logic of the kelo case, quote, nothing is to prevent a safe from replacing any motel six with a ritz-carlton, and the home with a shopping mall, or any firm with a factory. this decision was a major shift in the long. is that private development was a permissible public use

according to the fifth amendment as long as a provided economic growth for the community. what is your opinion of the kelo decision, judge sotomayor? what is an appropriate public use for condemning private property? >> kelo is now president of the court, i must follow it. i am bound by a supreme court decision as a second circuit judge. as a supreme court judge, i must give it into the death friends that the doctrine of stare decisis which suggests the question of the reach of kelo has to be examined in the context of each situation and that the accord 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. anger stand of the concern that many citizens have expressed about whether kelo did or did not honor the importance of property rights, but the question in kelo was a complicated one about what constituted public use and there the court held a that a taking to develop an economically blighted area was appropriate. >> psr that is what they decided in kelo. i ask your opinion and apparel you feel ledger non a position to offer an opinion because it is president 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 she became a supreme court justice

and assuming that she might have a chance sunday to review the scope of that decision. >> i don't prejudge issues. >> okay. >> that is actually -- i come to every case with an open mind. >> alright. >> every case is informing. >> that is good. let's leave it that. as you know, judge, the landmark case of a griswald mrs. connecticut guarantees a there's a fundamental cause additional right to privacy as applies to contraception. do you agree with that? in our opinion,, is that settled law? >> that is the president of the course of in a subtle flaw. >> is there a general constitutional right to privacy? and where is the right to privacy, in our 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 of those various provisions of the constitution.

it has found it in the fourth amendment rights and inhibition -- prohibition against unreasonable search and seizures bear the most commonly in is considered -- i shouldn't say most commonly because search and seizure cases are quite frequent before the courts, but it is also found in the 14th amendment of the constitution when it is considered in the context of 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 vs. wade and. in our opinion, is it settled law? >> the court's decision in planned parenthood vs. casey reaffirm of the court's holding of roe vs. wade. that is the president of the corn and settled in terms of a holding of the court. >> do you agree with justice

souter, o'connor and kennedy in their opinion in casey which reaffirm a core holding in a row? >> as i said, he syria from upholding in a row. that is the supreme court's settled interpretation of what the court's holding is an israel affirmance of it. >> alright. let's talk a little bit about cameras in the court. you sit on a court of appeals which does allow cameras into court to and from all indications your experience with it has not been negative. in fact, i am standing it's been some positive so how would you feel about allowing cameras in the supreme court weren't the country would have a chance to view discussions and arguments about the most of foreign issues that the supreme court the size with respect to our constitution, our rights and our future?

>> i have had positive experiences with camass. when i have been asked to join experience of using cameras in the courtroom and i have participated, i have volunteer. perhaps it would be useful and i explained to you my approach to contumely -- collegiality on a court. [laughter] it is my practice when i enter a new enterprise whether it is on record or in my private practice are when i was a prosecutor to experience with the courts were doing for those individuals doing that job for doing, understand and listen to the arguments of my colleagues about why certain practices and necessary or helpful or western practices it shouldn't be done when you procedures china and then spend my time trying to convince them.

but i wouldn't try and to come in with prejudgment so that they thought that i was unwilling to engage in a conversation with them or unwilling to listen to their views. i go in and i tried to share my experiences, to share my thoughts, and to be collegial and come to a conclusion together. and i can assure you that if this august 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 of procedure on the court including the question of cameras in the courtroom. >> i appreciate the fact that if you can't convince them it will happen, but how the field?

[laughter] how you feel about admitting cameras in the supreme court recognizing that you cannot decree it by fiat's? >> no, i am pretty -- can i think it is a good idea? >> have a pretty dim litigator, and was a really good litigator and i know that when i work hard at trying to convince my colleagues of something after listening to them they will often try for a while. i mean, we will have to talk together and have to figure out that issue together. i would be again it was fortunate enough to be confirmed, the new voice in the discussion. inouye voice often sees things and talk about them and consider taking a purchase. >> judge, all of us in public office of the then federal judges have specific fixed terms and we must periodically run for reelection if you want to remain in office. even most state court judges have fixed terms of office. the federal judiciary as a knows

very different. you have notre office and instead serve a life. so i'd like to ask you wish to support term limits for supreme court justices for example 15, 20 or 25 years? with this help insure that justice is two not become victims of a cloistered, ivory tower existence and that you'll be able to stay in touch with the problems of ordinary americans -- term limits for supreme court justice is? >> all questions of policy are within the province of congress first is of that particular question would have to be considered by congress first, but it would have to be considered in light of the constitution and then of statutes that govern these issues. and so that first up a decision would be congress's. i can only know that there was a purpose and to the structure of our constitution and it was a view by the founding fathers

that they want justices who would not be subject to political whim or to the motions of a moment and they felt that by giving them certain protections that they would ensure that there and activity and their impartiality overtime. >> 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 90s 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 with 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 is a question of one of the structure of our government is best served by. and as i said, that policy question will be considered first by congress and then the process is set forth by the constitution, but i do think that there is a value in the services of judges for long periods of time. >> judge, finally alibi to turn to antitrust law. antitrust law is not some this year's legal theory as you know that only lawyers can understand it. it is an old-fashioned word for fair competition and it is a law that we use to protect consumers and competitors alike from unfair and illegal trade practices. a prominent antitrust lawyer named kyle ettinger was quoted in an ap story recently as saying that judge sotomayor has

surprisingly broke the pros -- pro-business record in the area of antitrust and in every case in which she has to was one of the three judges considering it is but the court ruled against the plan to bring an antitrust complaint. i like you to respond to that end to the other thing i'd like to raise. in 2007 legion case in a 54 decision, supreme court overturn a 97 year-old president and held that vertical price-fixing no longer automatically violated antitrust law. in effect, this means that a manufacturer is now free to set minimum prices and retail for its products and thereby to prohibit discounting of its products. what do you think of this decision? do you think it was a appropriate for the supreme court by judicial fiat to overturn a nearly century-old decision on the meaning of at the sherman act that businesses and consumers have come to rely

on and which had never been altered by congress? those two things -- antitrust. >> i cannot speak of a center, to whether the legion was right or wrong. it is now established law the court. that case in large measure is centered around the justice is different views of the attacks of it stare decisis on a question which none of them seem to disputes that there were a basis to question and which none of the economic assumptions of the court in this field of law. legion is the court's holding. and its teachings and holding i will have to apply new cases so

i can say more than one i know about it and when i thought the court was doing their. bid respect to my record, i can't speak for why someone else would you my record as suggesting a pro and anti approach to any series of cases. all of the business cases as with all the cases my structure of approaching is the same. what is the law requiring? i would know that i have cases that have upheld the antitrust complaints and uphold those cases going gordon. i did in my visa mastercard 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 president -- president. >> thank you very much, judge sotomayor. i thank you, mr. chairman. >> thank you. judge sotomayor, we have -- this would probably be inappropriate place to take a short break and we will and then what we will -- we will come back. as some point we will break for both republicans and the democrats to be in a caucus lunch but it also gives you a chance to have lunch so we will take 10 minutes flexible 10 minute break. and i thank you for your patience here, judge sotomayor. and we will be back. [inaudible conversations]

[inaudible conversations] .. chondroitin

through tomorrow. our live coverage continues on c-span3. senator orrin hatch of utah is the next questioner. >> from the press what our schedule will be, and i fully understand they have to work out their own schedules, but what i would suggest senator kohl asked questions. we will go to next senator hatch, former chairman of this committee. following senator hatch, we will go to senator feinstein and the will bring us to roughly 12:30. because of the caucuses will

break at 12:30 but then resume right at 2:00, which would mean i talked to republicans and democrats, it means everybody would want to come back and leave a few minutes early but i think -- i think everybody will understand that. so senator hatch is a former chairman of this committee and a friend of many years, and i recognize senator hatch. >> thank you mr. chairman. welcome again, and to your lovely family. we are grateful to have you here. now let me ask you about law. if the supreme court means it's a subtle, do you believe that gonzalez versus carhart, the partial birth abortion is all?

>> i believe doctrine what counsel. >> i want to begin by looking at your case in a scenario very important to many of us and that's the second amendment. the right to keep and bear arms and your conclusion that their right is of fundamental. now in the 2004 case entitled united states versus you handle the second amendment issue in a short foot note. you cited the second circuit decision in united states versus toner that the right to possess a gun is a fundamental right. toner relied on the supreme court decision in the united states forces miller. last year in the district of columbia versus heller the supreme court examined miller and concluded, quote, the case didn't even purport to be a thorough examination of the second amendment, and of quote

and that miller provided no explanation of the content of the right, and of quote. are you familiar with that? >> i am, sir. >> so let me ask you dustin the supreme court's treatment of miller, or at least cast doubts on whether to rely yangon miller as the second circuit has done for this proposition is proper? >> the issue -- >> remember i am saying at least cast doubts. >> welcome that is what i believe justices goleta implied in his footnote 23, but he acknowledged that the issue of whether they're right, as understood in supreme court jurisprudence, was fundamental. it's not that i considered it on fundamental, but that the supreme court didn't consider it fundamental so as to be incorporated against the state. >> why didn't decide that point. >> it not only didn't decide, but i and understood justice

scalia to be recognizing that the court's president hadn't held it was his opinion with respect to the application of the second amendment to government regulation was a different in query and a different inquiry as to the meaning of u.s. miller with respect to that issue. >> will of heller had already been decided would you have addressed that issue differently than heller? >> or would you take the position that the doctrine and incorporation isn't inevitable with regard to state issues? >> that's the very question the supreme court is likely to be considering. there are three cases addressing this issue, at least i should say three cases addressing this issue in the circuit courts. and so its not a question that i

can address. as i said i'd read bring an open mind to every case. >> in sanchez you agreed the right to possess a gun wasn't fundamental and the conclusion york's ban on gun possession was permissible under the second amendment. but it's not aware it actually connected the promise to the conclusion without any analysis at all. the footnote you wrote least the impression unless the right to bear arms is considered fundamental any dumb restriction is necessarily permissible under the second amendment. is that what you believe? >> no sir, because that's not -- i'm not taking an opinion on that issue because it's an open question. >> so you admit it's an open question? >> i admit that justice -- the courts have been addressing that question. the supreme court in the opinion

authored by justice scalia suggested that it was a question that court should consider. i'm just attempting to explain that the u.s. versus sanchez was using fundamental in its legal cents but whether or not it had been incorporated against the states. with respect to that question, moreover, even if it's not incorporated against the state's, the question would be with the states have a rational basis for the regulation and has in place. and i believe the question was whether or not a prohibition against felons possessing firearms without question, if my memory serves me correctly. if it doesn't. but even justice scalia in the majority opinion and heller recognized that that was a rational basis regulation for a

state under all circumstances, whether or not there was a second amendment right. >> welcome in this district of columbia versus heller if the supreme court observed that, quote, it has always been like the interest of the second amendment like the first, and fourth amendments codify a pre-existing right, and of quote, and the court observed, quote, by the time of the founding the right to have arms had become fundamental for english subjects. now, the court also described the right to bear arms as a natural right. do you recall that from the decision? >> i do remember that decision. >> all right. in what way does the court's observation that the second amendment codified a pre-existing fundamental right to bear arms affect your conclusion in that second amendment does not protected fundamental right? >> my conclusion is that the

maloney case or in the u.s. sanchez filler was based on precedents. and the holding of precedents that the second circuit did not apply to the states. >> what's your understanding of the test of standard the supreme court has used to determine whether a writer should be considered fundamental? i'm not asking a hypothetical here. i'm only asking about what the supreme court said in the past on this question. i recall emphasizing that a right must be deeply rooted in our nation's tradition in an anglo-american regime and ordered liberty or that it is an on enduring american tradition. i think i decided that pretty accurately on the court has held with regard to what is a fundamental right. now, those are different formulations from the supreme court's decisions, but i think the common thread there is obvious. now, is that your understanding of how the supreme court has evaluated whether a writer should be deemed fundamental?

>> the supreme court's decision with respect to the second circuit in corporation -- second amendment incorporation doctrine is reliant on oil president of the court and i don't mean to use that as precedent that doesn't bind what i'm calling it a lot, and talking about precedent past in the 19th century. since that time there is no question that different cases addressing different amendments of the constitution have applied at different framework. and whether that framework in the language you quoted precise or not i haven't examined that framework in a while to know if that language is precise or not. i'm not suggesting it's not. i just can't confirm that description. my point is, however, that once there is supreme court precedent directly on point and second

circuit precedent directly on point on a question, which there is on this incorporation doctrine and how it uses the word fundamental, then my panel, which was unanimous on this point, there were two other judges, and at least one other -- one of the panel on the circuit by justice -- judge easter byrd determined once you've settled precedent in an area than on a precise question the supreme court has to look up that, and under the difference one the factors one considers in deciding whether that older precedent should be changed or not. that's what the supreme court will do. >> as i noted the supreme court but the second amendment in the same category as the first and fourth amendment has pre-existing rights that the

constitution merely codified. now, do you believe that the first amendment rights, such as the right to freely exercise religion, freedom of speech or freedom of the press are fundamental rights? >> those rights have been incorporated against the states. the states must comply with them. so, and to the extent that the court has held that -- then they have been deemed fundamental as that term is understood legally. >> what about the fourth amendment about unreasonable -- unreasonable searches and seizures? >> as well. but with respect to the holding as it relates to that particular amendment. >> let me turn to the decision in maloney versus cuomo. this was the first post-heller decision about the second amendment to reach any federal court or federal appeals court i think i should be more specific. in this case, you held the second amendment applies only to the federal government, not to

the states, and this was after heller. am i right that your authority for the proposition was the supreme court's 1886 decision in presser versus illinois? >> that, plus some second circuit precedent that had held that it had not been -- that the amendment had not -- >> but presser was definitely one -- case is you rely on? okay. in that case, or i should say that case involved the 14th amendment's privileges and immunities clause; is that correct? you're aware of that? >> it may have. i haven't read it recently enough to remember exactly. >> you can take my word on it. >> okay. i will accept -- >> thank you. last year's decision and heller involved the district of columbia so it did not decide the issue with the second amendment applies to the states or is incorporated. but the court did say that it's

nineteenth-century cases about applying the bill of rights to the states, quote, did not engage the sort of 14th amendment in query required by liter cases, end of quote. now, here's my question, and i write those cases the court referred the 14th amendment's due process clause rather than its privileges and immunities clause? >> owls i said i haven't examined those cases recently enough to be able to answer your question, senator, but what i can say is regardless of those cases address or didn't address the second circuit had very directly addressed the question of whether it viewed the second amendment as applying against the states. to that extent, if that precedent got the supreme court's teaching was wrong, it

still would apply and my court to the extent justice -- >> i'm talking abut something beyond that. i'm talking about what should be done. it is in the case relied here on maloney to say the second amendment doesn't apply to the state's one of those 19th century cases where they used privileges and immunities clause, not the 14th amendment due process clause to incorporate? the leader cases have all used 14th amendment as far as i can recall. >> as i said, senator, i just haven't looked at those cases to analyze it. i know what heller said about them. in maloney we were addressing a very narrow question. and in the end, the issue of whether that precedent should be followed or not is a question the supreme court is going to address if it accepts certiorari in one of the three cases in which courts have looked at this question. the court of appeals. >> the reason i'm going over this is because i believe if you

apply the long line of cases in maloney because you were applying case is that used privileges and immunities clause and not cases that use the 14th amendment due process clause. let me just clarify the decision on maloney. as i read it, you held the second amendment does not apply to state or local governments. you also held since the right to bear arms is not fundamental all that is required to justify weapons restriction is some reasonably conceivable state of facts that could provide a rational basis. now, am i right that this is a very permissive standard that could be easily met? the rational basis standard? >> well, all standards of the court are attempting to ensure that government action has a basis. in some situations the court looks at the action and applies a strict scrutiny to the government's action and others

if it is not a fundamental right in the way the law defines that, that it hasn't been incorporated against the states, then the standard of review is of rational basis. >> and my point is it is a permissive standard that could be easily met; is that correct? >> well, the government can limit the a social problem that is identifying or a difficulty in identifying and conduct not in the most narrowly tailored away, but one that reasonably seeks to achieve that result. in the end it can't be arbitrary and capricious. that's a word that is not in the definition -- >> may be more easily met. how's that? okay? >> as i said, the rational basis does look more broadly than strict scrutiny make -- >> that's my point, that's my

point. as a result of this permissive standard, and it is present, doesn't your decision on maloney mean virtually every state or local weapons ban would be permissible? >> server, and maloney we were talking about now and talk sticks, those are martial art sticks. >> to sticks bound together by rawhide or some sort of -- >> exactly. and when the stakes are swann, which is what you do with them, if there is anybody near you, you're going to be seriously injured because that swinging mechanism can break arms, it can cost some one -- someone's skulls. so to the extent a state government would choose to address this issue of the danger of that instrument by

prohibiting its position in the way new york did, the question before our court, because the second amendment has not been incorporated against the state was did the state have a rational basis for prohibiting the basis of this kind of instrument? it is a very narrow question. every kind of regulation would come to a court with a particular statute, while the legislative findings as to why a remedy is needed, and that statute would then be subject to a rational basis review. >> the point i am making is the decision was based upon nineteenth-century case that rely on the privileges and immunities clause, which is not the calls that we used to invoke the doctrine of incorporation today. and it's just an important consideration for you as you see

these cases in the future. let me just change the subject. in the ricci case i'm concerned because a variety of reasons. the court split 5 - 4 and was a summary judgment meaning it didn't have to be distributed to the other judges on the court. the only reason a judge could run to raise the issue is the red in the newspaper. and then said i want to see that case. then he got it and he realized my gosh, this is a case of first impression. so, the court split 5 - 4 -- >> [inaudible] >> no, it's 5 - 4. even the force of the firefighters deserved their day in court to find more facts. but all nine justices disagreed

with your handling of that particular case. thus your decision on ricci, even though it was a 5 - 4 decision, all of them disagreed with your handling. now, okay. but as you know, your decision in ricci v. stefano -- people are tired of courts imposing their will against one group or another without justification. now the primary response or the defense so far seems to be you have no choice because you were bound by clear and longstanding precedent. most say you are bound by second circuit precedent precedent. so i need to ask you about this to be clear. this case involved not only disparate impact discrimination, but both disspirited treatment

and disparate impact. that is what made it a case of first impression. the city says the had to engage in disparate treatment or they would have been sued for disparate impact. so, how these two concepts of discrimination disparate treatment and disparate impact relate and the same case. but back to the issue whether you are bound by clear and longstanding precedent. as i recall your opinion in this case whether the summary order or the procurement open and didn't cite any supreme court or second circuit court precedent at all; is that right? >> i believe they cited the bushey case. >> you were simply adopting with the district court had said rather than doing your own analysis of the issues, and i think that is right.

but you can correct me if i'm wrong. but did in the district court say that this was actually a very unusual case? this is how the district court put it, quote, this case represents the scenario of the unusual challenge to an employment or promotional examination as planned attack has not the use of a lead shibley ressa discriminatory results but defendant's reason for their refusal to use those results, and of quote. now this seems complicated, i know, but you know more about it than probably anybody in this room. the district court sided three second court precedents but didn't on two of them, the kirkland and bushey cases. didn't they deal with race norming of test scores which didn't occur in this case?

they dealt with when employees could prove a disparate impact of a case and would be -- but the principles underlying when employees could bring a case are the same when they establish a press -- prime facia case, can we eat be sued by employers and the basic principles of those cases were the same regardless what form the practice that issue took. >> okay. well, the third case, the haydon case, didn't it present a challenge to the test rather than the results? >> i'm sorry? >> didn't present a challenge to the the design of the case rather than -- the design of the employment test rather than the results of the test? >> again, regardless of the

challenges about what test is at issue, the court holding of that precedent is a fan in the week could show a disparate impact from a particular practice or test or activity by an employer, then that employees had a prime vacation -- provocation case. the question is whether the city was subject to potential liability because the employees, the city of new haven, because the employees could bring suit under the law challenging that the city of new haven had violated title vii, so that was the question. >> okay. that's one of the reasons why it was a very important case. when the second circuit considered whether to review the situation didn't you join an

opening in admitting the case presents, quote, difficult issues, and of quote? >> well, the district court noted that it was a different scenario. but atty dalia debate its decision -- it ecology we did the case in a 78 page decision and gave a full explanation, one which the panel agreed with by adopting the opinion of the district court in. those questions as i indicated are always with her given the risk the city was facing, the fact that it could face a lawsuit in its conclusion that perhaps a better test could be devised that wouldn't have a disparate impact, whether it was liable for discrimination not

desperate to but different treatment came back and fight understood the dissenters in that case with they were saying is to the majority if you are going to apply a new standard, then give the second circuit a chance to look at the record and apply that standard. it was sent disagreeing that the circuit wasn't applying law as it was understood. the circuit as i read what they were doing were saying this and it back to the circuit and let them look at this in the first instance. >> i understand the judge basically didn't know the decision was done until he read it in the newspaper and then asked to look at. his opinion joined by five other judges supporting the review opens with these words, quote, this appeal raises important questions of first impression in

our circuit and indeed in the nation regarding the application of the 14th amendment and title vii prohibition on discriminatory this is. was he wrong? >> that was his view. he expressed it in his opinion of his bow to. i can't speak for him -- >> i'm just asking you to speak for you. when the supreme court reversed and the justice kennedy wrote this action presents to provisions of title vii to be reconciled with few if any precedents and the court of appeals discussing the issue, and of quote. he was referring to the lack of precedent anywhere in the country not just the second circuit. was he wrong? >> he was talking about whether i understood him to be talking about not whether the president

that excess did would have determined the outcome as the panel did but whether the court should be looking at these provisions in a different way to establish a different place in considerations by the city. owsley indicated -- as i indicated that argument about what new standard or new approach to the questions the city should consider before it denies certification of a test had not been addressed by other courts, but the ability of a city when presented with a prime facia case on disparate impact had been recognized by the courts. >> okay, even the district court acknowledged that this was an unusual case. and if there was little or no second circuit precedent directly on the wind for a case

like this, you know, one of the questions i had is why did your panel now just do your own analysis and you're own opinion? the judge pointed out the program approach simply a bops the district court's reasoning is reserved for cases that involve only, quote, straightforward questions that do not require explanations, and quote. as i ask you about a minute ago, you yourself joined an opinion regarding rehearing saying the case raised difficult questions. now, the issue that i'm raising is why did you not analyze the issues yourself and apply what law existed on the unprecedented cases or issues in the case? and whether you got a right or wrong and the supreme court did find you got it wrong because they reversed it i just can't understand the claim that you were just sticking to binding long standing clear precedent when all of that was part of the

total decision and all nine justices found it to be a flaw that you didn't, you know, then you didn't give serious consideration to what really turned out to be cases of first impression. .. here, you have nothing to do with this, i know.

but there's a rumor that people for the american way has -- that this organization has been smearing frank richie because he may be willing to be a witness in this. i hope that is not true and i know you have nothing to do this so don't think i am trying to make a point against you, i am not. maf point that that is the type of stuff that doesn't belong in supreme court nomination hearings and i know you would agree with me on matt. >> absolutely, senator, i would never ever endorse, approve or tolerate if i had any control over individuals with that kind of contact, it is reprehensible. >> i believe that and i want you to know i appreciate this little time we have had together. >> senator hatch, thank you. and i would also put in the record the because race related

cases will come up independent study supreme court expert tom goldstein town of the 97 race related cases which judge sotomayor participated in the second circuit, she and the rest of your panel rejected discrimination claims 80 times, they greeted them 10 times, rejecting discrimination claims by a margin of eight to one. he found that 10 case is favoring discrimination, nine of those were unanimous and of those, nine in seven, the unanimous panel included and is one republican appointed judge and he said it seems absurd to say judge sotomayor and allows race director decision making and without objection, the report will be part of the record. high-yield now to senator feinstein, the chair of the u.s. senate's. >> mr. chairman, i would just

like to set the record a washington post study that shows that judge sotomayor's votes came out a liberal 59% of the time compared with 52 percent for other judges who, like her, were appointed by democratic presidents and that the democratic appointees or 13% to more liberal than republican appointees appear count so i don't know, is not a huge difference but the suggestion that i would just make that for the record in that what ever else you offered and i would offer, mr. chairman, a correction of the record regarding the miguel estrada case. i have a statement from him. he was nominated by president bush and would offer that into the record as an explanation as to how his nomination was

blocked by consistent filibuster by the democrats when there was a majority to confirm him. >> thank-you and that will be in the record of. i would also not want anything -- make any suggestion that mr. estrada is anything but an exceptionally good lawyer. the argument that there was not so much with him, but withholding by -- of some material by the bush administration, something he had no control over. senator feinstein can i say give very much mr. chairman. i'm puzzled why mr. estrada keeps coming up. mr. estrada had no judicial experience. the nominee before us has considerable judicial experience and mr. estrada what an answer questions presented to him. this nominee i think has been very straightforward. she has not used catchy phrases. she has an answer the questions directly the best she could and to me that gets points.

of -- i must say that if there is a test for judicial temperament you pass it with an a plus plus. i wanted to know that because i wanted to respond in my adrenaline was moving along. and you have just sat there very quietly and responded to the questions that in their very nature are quite provocative and -- provocative so i want to congratulate you about that. now it was just said in an online justices disagreed with you and the ricci case, but i want to point out that justice ginsburg and three other justices stated in the dissent that the second circuit decision should have been a firm. is that correct? >> yes. >> thinking very much. also a senator made a comment about the second court -- second circuit not being bound in the ricci case that i wanted to follow-up on because i think

what he said was not correct. you made the point that the unanimous ricci panel was bound by second circuit precedent as we have said that. the center said that you easily could have all ruled that president by voting for the case to be heard in en banc. first, mike understanding is that a majority of the second circuit voted not to be here the case, is that correct? >> that is, correct. >> secondly it took a significant change in disparate law -- impact lot to change the result of the second circuit reached in this case and the supreme court itself in the ricci recognized that it was creating a new standard in. is my understanding correct? >> yes, senator. >> uc? so what's happening here, ladies and gentlemen and members in, is that this very reserved and very fragile and very consider

nominee is being considered -- characterized as being an activist when she is anything but and i have a problem with this because some of it is getting across south there. calls began to come to my office, wow, she is an activist. in my view because you have agreed with your opinion republican colleagues on constitutional issues some 90% of the time, i don't see how you can possibly be construed to be an activist and by your comments here and as i walked in the room earlier, somebody asks you how you see your role and you said, to apply the law as it exists with the cases behind it. that is a direct quote. it is a very clear statement. it does not say, i think it is a good idea what it does not say any other clich.

it states a definitive statement. and that later you said a precedent is that which give stability to the lot and i think that's a very important statement. it -- and what we are talking about here is following precedent so let me ask you in a difficult area of the law a question of. this supreme court has decided on more than seven occasions that the law cannot put a women's health at risk. it said it did in a row in '73, in danforth in '76, in planned parenthood of in '83, it in thornburgh in '86, in casey in '92, in carhart in 2000, ended in idaho in 2006. with both justices roberts and alito on the court however this rule seems to have changed

because in 2007 in carhart the court essentially removed this basic constitutional right from women. now, here's my question: when there are multiple precedents and a question arises, are all the previous decisions discarded or should the court reexamine all the cases on point? >> it is somewhat difficult to the answer that question because before the court in any one case is this particular factual situation. and so how the court's precedents apply to that unique factual situation because of and what comes before the court is something that's different than its prior decision, not always, but often.

in the carhart case, the court look to its president and as i understood that case, it was deciding a different question which was whether as there were other means, safer means an equally effective means for women to exercise her right then and the procedure at issue in that case. that was, i don't believe, a rejection of its prior presidents. it's prior presidents are still the precedents of the court the house and welfare of a woman must be a compelling consideration. >> so you believe that the hell of a woman still exists. >> is a part -- skim iraqi mention that many cases it has been a part of the court's

jurisprudence and a part of its president. of those presidents must be given deference in any situation that arises before the court deemed i thank you very much, i appreciate that and also like to ask your thoughts on how president should be overruled. in a rare rebuke of his colleagues, and justice scalia has sharply criticized chief justice roberts end it justice alito for an eye to the overruling the court's precedents with acknowledging that they were doing some. scalia wrote in the heinz case and i quote, overruling prior precedent is a serious undertaking and i understand the impulse to take a minimalist approach, but lane just claim to be honoring stare decisis requires more than beating a prior precedent to a pulp and then sending it out to the lower courts we can come and denigrated, more incomprehensible than ever and

ever and yet somehow technically alive. in wisconsin right to life vs. fcc, he said the chief justice roberts opinion, effectively overruled a 2003 decision without saying so, and said that this kind of a quote judicial restraint was really judicial obfuscation. here is the question. when the court decides to overrule a previous decision, is it important and that it do so out right and in a way that is clear to everyone? >> the doctrine of stare decisis which means stand by any decision, stand by a prior decision, has a basic premise and that a basic premise is it that there is a valued in

society to predictability consistency, fairness coming evenhandedness in the law in this society has an important expectation that judges won't change to the law based on personal whim or not, but that they will be guided by humility they should show in the thinking of prior judges who have considered weighty issues and determine as best as they could given the tools they have at the time to establish president. there are circumstances in which a court should reexamine president and perhaps changes direction or perhaps rejected, but that should be done very cautiously and i keep emphasizing the varies because the presumption is in favor of deference to precedent.

the question then becomes what other writers you use to change it and then courts have looked at a variety of different factors, applying each in the balance in determining where the balance falls in a particular moment. it is important to recognize however, that the development of a lot is step-by-step, case by case, and there are some situations in which there is a principled way to distinguish precedent and from application to a new situation in. no, i do not believe a judge should act in an unprincipled way, but i recognize that both the direction of the stare decisis starts from a big assumption of that difference should be given to precedents in that the development of the law is case by case of.

is always a very fine balance. >> thank you very much, i appreciate that. had wanted to ask a question on executive power and national security for. we have seen in the executive branch pushed the boundaries of power, claiming sweeping authority to disregard tax of congress, and that's one way to collect communications of americans without warrants and to detain people indefinitely without due process. now, the president in literally hundreds of signing statements affixed to his signature on a bill indicated part of a bill that he would in essence disregarded. he did not read of the bill. he signed the bill and said, but there are sections of the high in some way words will disregard. most egregiously in 2005 when

congress passed a bipartisan bill banning torture, president bush signed it, but he also issued a signing statement saying he would only enforced the law, quote, consistent with the constitutional authority of the president to supervise the unitary executive branch and consistent with a constitutional limitations on the judicial power. in other words, although he signed the bill it was widely interpreted that he was asserting the right not to follow it. does the constitution authorizes the president to not follow parts of laws duly passed by the congress that he is willing to sign that he believes are an unconstitutional infringement on executive authority? >> that is a very broad question a.

>> is one that we are grappling with. >> and that is why i have to be very cautious in answering it. >> that's fine command because not only is congress grappling with the issue of the soul of the court's. by claims being raised by many litigants who are asserting whether they're right or wrong would need to be addressing each individual case, that the president in taking some activity against the individual has exceeded in congress is the poorest nation or its powers. the best i can do in answering your question because there are some of pending cases addressing this issue in such a different variety of ways is to say that the best expression of how to address the soul is in a particular situation was made by justice jackson in his concurrence in the youngstown steel seizure cases and that

involved president truman's seizure of steel a factories. bois near justice jackson has service of the remark in an articulation that no one's thought of a better way to make it. he says that you boys have to look at an assertion by the president that he or she is acting within executive power in the context of what congress has done or not then. and he voice starts with pursed a look at whether congress has expressly or implicitly address or authorize the president's act in a certain way and if the president has and then he's acting at his high stature of power. if the president is acting in

prohibition of an express or implied act of congress then he's working at his lowest ebbs. if he is acting or congress has spoken, and then we are in what justice jackson called it the zone of twilight. the issue in any particular case is always starting with what congress says or has not said and then looking at what the constitution has, says about the powers of the president -- congress's power in that area. you can't speak more specifically than that in response to your statement that were a part of your question other than to say that the president can't act in violation of the constitution.

no one is above the law. but what that is in a particular situation has to be looked at in than factual scenario before the court. on. >> think very much. this is really very reveling to what we do and we have often discussed this jackson case or the steel case, but we just recently passed a foreign intelligence surveillance act and one of the amendments because i did the amendment was to strengthen the air exclusivity clause of the law which has been in the bill since the beginning, but that there are no exceptions from which the president can leave the four corners of this bill. non-bank -- so it will beam remains to see how that works out over time but i can certainly say to you that it is a most important consideration as we looked at these matters of national security.

so let me ask you this column was -- you join a second circuit opinion last year that held that the executive should not forbid companies that receive national security letters to tell the public about those letters weapons. the panel's opinion in the case said, coach, the national security context in which nsl is a national security letters, are authorized imposes on core is a significant obligation to defer to the judgments of executive-branch officials, but also that under no circumstance should in the judiciary become the handmaiden of the executive. that is no versus me casey. here it is given and that the executive branch has responsibility for protecting the national security, how should the court's balance the

executive branch's expertise in national security matters with the judicial branches constitutional duty to enforce the constitution and prevent abuse of power? >> i can talk about what we did indo as reflective of the approach with that i took enjoined in that case. it is difficult to talk about an absolute approach in any case the kitchen -- because each case presents its own actions by parties in his own set of competing considerations often a. in it and go to the district court had invalidated a congressional statute altogether , reasoning that the statute violated the constitution in a number of different ways and that those violations did not authorize congress to act in the manner in

did. as the panel said in that decision, recognizing that deference to the executive is important in national security questions, ended that deference to congress because of the court was -- district court was invalidating an act of congress, that we had a as an appellate court to be very cautious have not always doing in this area into balance and keep consistent with constitutional requirements the actions were being taken. giving that due deference, we upheld to most of the statute and what we did was address to provisions of a statute that did not pass in our judgment constitutional muster. one of them was that the long as supreme court precedents have commanded required that if the

government was going to stop an individual from speaking in this particular context, that the government had to come to court immediately to get court approval of that step. noir huang the statute instead required at the individual who was restricted to common challenge the restriction. we said it no government acting. you have the right to speak. if you have a right to speak, you should know what the grounds for that right are and should be told were brought to court to be given an opportunity to have that restriction lifted. the other was a question of who bore the burden of supporting that restriction and the statute helmand that it was in the individual he was being.

and who had to prove that there wasn't the reason for it. the government agreed when our court that the burden of violated the supreme court precedent and the premises of freedom of speech and degraded that the burden should not be that way and we read the statute to explain what the proper bertin was. there is an all of these cases a balance and deference that is needed to be given to the executive into congress in certain situations, but we are a court that to protect the constitution and the rights of individuals under it and we must ensure an act with caution whenever reviewing a claim before us. >> thank you very much. one question on the commerce clause in the constitution. that clause as you well know is

used to pass laws in a variety of contexts protecting schools from guns to highway safety to laws on violent crime, child pornography, laws to prevent discrimination and to protect the environment, to name just a few examples. when i questioned now chief justice roberts, i talked about how for 60 years the court announced write-down a single federal law before exceeding congressional power under the commerce clause. in the last decade however, the court has changed its interpretation of the commerce clause and struck down more than three dozen cases. my question to the chief justice and on tv is: do you agree with the direction the supreme court has moved in more nearly coming interpreting congressional authority to enact laws under

how the commerce clause? generally not relating two any one case in. >> no, i know, but the question assumes a prejudgment by may of was an appropriate approach are not in any case that may come before me as a second circuit judge or again if i'm fortunate enough to be a justice on the supreme court. so as not a case i can't answer in a broad statement. in different areas but there is a framework that those cases have addressed in that remark would have to be considered with

respect to each case that comes before the court. now, i know that you mentioned a number of different cases and and if you have one particular that concerns you perhaps i could talk about what the free market is that the court established in those cases. >> i will give you one very quickly. restricting the distance that somebody could bring a gun close to a school. >> well, the gun free zone school act, which the courts struck down in lopez. in that case and in some of its subsequent cases the court was examining as i mentioned a wide variety of factors. they included whether the activity that the government was attempting to regulate was economic or not economic, whether it was an area in which

states traditionally regulated, whether the statute and issue had an interstate commerce commission as an element of the crime and then considered whether there was a substantial of electronic commerce. while dave: it looked at the congressional findings on that last element in, the court did it and determine that there weren't enough in the confluence of factors that it was looking at to find that the constitution -- that that particular statute was within congress's powers. that is the basic approach it has used to other statutes it has looked at.

the most recent case, the court did up held a crime that was not economic in this sense that it involved just the position of marijuana and there it looked at the broader statute in which that provision was passed and the intent of congress and to regulate a market in illegal drugs so the broad principles established in those cases have been in the courts president. is most recent holding suggested another actor for courts to look at in each situation will provide a unique factual setting that the court will apply those principles to appear come. >> one last question on that point. one of the main concerns is that this interpretation which is much more restrictive now could

impact important environmental laws whether it be the endangered species act and, the clean air act, the clean water act, or anything that we might even do in cap and trade. >> in fact, there are cases pending before the courts raising those arguments and so those are issues that the courts are addressing. i can speak much more. >> right i understand it can and further than that because of the restrictions on a. >> is just that congress has to have the ability to legislate in in this general area as is the commerce clause that enables that legislation. now as you pointed out, we did revise the gonna -- make the lopez case -- make specific findings and perhaps your note with more care toward the actual findings that bring about the legislative conclusion that we might be able to kenya to

legislate in these areas in, but my hope is that he would go to the court with a sensitivity that this body has to be able to legislate in this area is. and in all all of the states and they are very important questions involving people's well-being, control of the environment, the air, the water is cetera. >> i do believe that in all of the cases the court has addressed this issue that it pays particular attention to congressional findings. i know that individuals may disagree with what the court has done in individual cases, but it has never disavowed the importance of deference to legislative findings with respect to legislation that is passing within his powers under the constitution. >> thank you, i wish to the best of luck, thank you very much. >> mr. chairman, i direct one

thing. i said i had a letter earlier, miguel estrada, that was not correct. it wasn't a letter. >> if you have a copy of whenever, i did send mr. estrada in the last night because i had made a slight error is something i said about him i wanted to let him know that. >> well, we both made an error talking about him. >> with the one thing we should remember that mr. estrada is not the nominee year. just with all the statements made about president obama's philosophy, his confirmation hearing was last november, not now. it's just you, judge sotomayor and have a good lunch and we will come back. i'm trying to think who is next. senator grassley will be recognized when we come back in and we will start right at 2:00 o'clock. this hearing is in recess. [inaudible conversations]

was note [inaudible conversations] [inaudible conversations] dubois if i could do anything i wanted to do a live i said if i ever have to work for a living and want to be a photographer because they do at which point to is that in the interview the phone rang. my mom was still alive. she called and said, don't you

ever say that, they will thank you don't work. [laughter] actually, i don't. i just recognize senators here. you were doing all of the work and i appreciate the way you are doing it. i turn next to senator grassley that after senator grassley to senator feingold. >> welcome once again, a judge. i hope you have a good breaking and i appreciated very much the opportunity to ask you some questions about you're understanding of individual property rights and how they're protected by the constitution. and let me say as i observe property rights around the world who, there is a big difference between developed nations and developing nations and respect for private property has a great deal to do with the advanced societies. so i believe all americans care about this right.

they want to protect their homes and anything they own from unlawful taking by government but this is also a right that is important for agricultural interests. as you know, besides being a senator i come from an agricultural state in iowa and am a farmer as well. and sure that ordinary americans besides the economic interests that might be involved are all very well concern about where you stand on property rights so some of these issues have been discussed, but i want to go into a little more depth on kelo as an example. could you explain what your understanding is of the state of the fifth amendment takings clause jurisprudence after the supreme court decision in kelo? senator brownback said it is aptly when chief justice roberts was before this committee quote: quote, is in that now the case

that is much easier for one man's home to become another man's castle? your general understanding of the takings clause whacks? >> good afternoon, senator grassley and is wonderful to see you again. >> thank you. >> i share your view of the importance of property rights of the constitution and. as you know, i was a commercial litigator that represented national and international companies and it wasn't even in the case that it was the difference between developed and underdeveloped countries. about -- many of my clients who were from developed countries chose to in part to invest in the united states because of the respect that our constitution pays to property rights in its various positions, in its various amendments. with respect to the kelo question, the issue in kelo, as

i understand that there was a public purpose to the takings under the takings clause of the constitution and that requires the payment of just compensation when something is condemned for use by the government, whether the takings clause permitted the state, once it is made a proper determination of public purpose and use, according to the law whether the state could and then have a private developer to the public act in essence.

the day contract with a private developer to affect the public purpose clanks and so the holding as i understood it in the kelo was a question addressed to that issue. with respect to the importance of a property rights and the process that the states must use, i just point out to you that in another case involving that issue that came before me in a particular case that issue, that came before me in a particular series of cases that i have been calling a village in new york then i rolled in favor of the property rights, the property owners' rights to challenge the process that the state had followed in his case and to hold that the state had not given him adequate notice of their intent to use the proper name. well, have adequate notice not

to use the property, but to be more precise, that they haven't given him inadequate a bid tuesday to express his objection to the public taking in that case. >> could i0 in on two words in the kelo case? the constitution uses the word used, public use. where as the kelo case talked about taking private property for public purpose. in our opinion,, is public use in public purpose of the same thing? >> well, as i've understood in the supreme court's decision in kelo, it was looking at precedents and suggested that the to inform each other, that public purpose in terms of

developing an area that would have republican prevent in use that the two would inform each other robin. >> and do you believe that the supreme court who overstep their constitutional authority is when they went beyond the words of the constitution. in other words, to the word purpose and thus expanded the ability of government to take an individual's private property? because i think everybody believes that kelo was an expansion of previous precedent there. >> and know that there are many litigants who have expressed that view when and, in fact, there have been many state legislators that have passed stay legislation not permitting state governments to take in this situation and that of the supreme court approved of in it kelo. the question of whether the supreme court overstepped the constitution as i have indicated, the court and least my understanding of the majority's opinion, believe in

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

entitled to stair -- stare decisis attacked and difference. lamborn but the extent of that has to wait an extent, the next cases. >> then maybe it would be fair to ask when is your understanding of the constitutional limitations on government entity -- any government entity taking land for public purvis? >> welcome and that was the subject of much discussion in the kelo case among the justices. and with certain justices and the dissent hypothesizing that to the limits were difficult to see, the majority taking the position and who said there were limits. as i have indicated to you, opining on a hypothetical is very difficult for a judge to do. and as a potential of justice on the supreme court, but more and

partly as a second search of -- second circuit judges still sitting, i can engage in a question that involves hypothesis. >> fled me ask you a couple of his men, does the constitution allows for takings without any compensation? >> well, the constitution provides when the government takes it has to pay compensation. as you know, the question and not know what constitutes an actual taking is a very complex one because there's a difference between taking home a and regulation that may or may not constitute a taking. so i am not at all trying to not answer your question. >> let me ask another question. maybe you can answer.

would you strike down and taking that provide no compensation at all? >> as i explained the taking violates the constitution. i would be required to strike down. >> let me move on to the did in case forces village of port chester. it raised serious concerns about whether you understand the protection provided by the constitution for individual property rights. this case the man alleged that his local village government violated his fifth amendment rights when it took his property to build a national chain drugstore. at a meeting with a government agency another developer was told then he could get the developer $800,000 or a 50% interest in his pharmacy project and if he did not except either condition the government would simply take his property two days after he refused to comply with these demands big

government began a proceeding to take his land. the district court denied him his day in court and your panel affirmed that decision in a five paragraph opinion why did you deny his day in court? how can these facts in essence allegations of extortion at least not warrant the opportunity to call witnesses to see who it he was telling an accurate story? >> in the case presented a narrow issue that the court below a -- bois. >> officer, remove that man immediately. we will stand in order when. we will stand in order. officers, will you remove that man.

you know, but they.com they did it. [laughter] again, both senator sessions is and i have said as all previous years and ranking members of this has said this is a hearing of the united states senate to. the judge deserves respect. senators and asking questions deserve respect. i will order the removal of anyone who disrupts it with their support of the nominee or opposed to the nominee, whether they are supportive of a position i take for opposed to it. we will have the respect that should be accorded to both the nominee and to the united states senate. >> thank you mr. chairman. i thank you have handled this wealth out and support to 100%. >> thank you. senator grassley, we did stop the clock so did not take part maritime command thank you. people always say i have the

ability to turn people on. [laughter] one with [laughter] maybe you could start over again with your sentence, please. >> where were a? >> i hope i remember where we were. command center, the right to property owners to have their day in court is a very important one, but there is a corollary to the right to have her day in court which is two have to bring it to court in a timely manner because people who are relying on your assertion of wright sneath should know when you are going to make them so there is a doctrine called the statute of limitations that says in a party knows swap or has reason to know of their injury and that party

has to come to court and raise their arguments within that statute that sets the limits of the action. >> i interrupted you, i should not have interrupted you, please, go ahead and. >> in the case in the question was whether he knew that the state was intending to take his proper name and for what the state claimed was a public use in that it had plans to have a private developer taking the proper name in the private developer develop the land. so there was a full hearing by the village on this question of whether there was a public use of the land. he did not claim in the action

before the courts that he didn't have a notice of that hearing. he did not raise a challenge in that hearing to the public taking any didn't raise a challenge to the state's intent two have a private developer and develop the land. the developer was not just developing his property, it was one piece of property in a larger development project and that larger develop and project had been based on in the villages conclusions from its very lengthy hearings in accordance with the new york law that the area was blighted in the the area needed economic

development so it to that issue became the issue before the court in the sense of a knowing that he could be injured by the state's finding a public use and the state's decision to let a private developer develop this land -- and did he bring his lawsuit in a timely manner. canaccord below and are court ruled on that basis that he had and because he had reason to know about the injury that he could, that could come to him. >> well, since his claim was based on conduct of the developer, how could he have ever found a successful claim under the standard that you just mentioned? >> he alleged in his complaint that the private developer had extorted him.

extortion under the law is defined as an unlawful demand for money. on this one piece of property, within a larger development that a private developer was actively engaged in doing when he had contracted with the state to do, to revive the economic base by making investments in its, the private developer in new that he had his claims. the private developer and his agreement with state. and so he was doing -- at least this was the private developers argument -- what he was entitled to do which is to say we disagree. i am claiming that i have a right under contract. you are claiming that you have a

right under the takings clause. let's settle this. i am going to lose x amount of money so you pay me back for me not to do what i am entitled to do one of the law. that is however -- those were the claims of the parties in the action. in the end of the decision of the court was if you believe that the takings of your proper name were not proper under the public use, under the takings clause and two news that the state had entered a contract with his private developer, then you have knowledge that you could be injured and you should have come to court earlier. >> why was the situation not to the kind of prohibited praetexta will taking articulated in kelo?

how was this not some sort of form of extortion? and there was a pretext in a case where the developer says it give me the money personally or we will take your land in what is the pretext? >> well, as i have described the case the question comes up in the context of what he did know, did he have enough to know he could be injured, was there no public use -- to which of the property would apply and went right to the private developer have a with a state. and so this extortion question came up in a legal context surrounding the relative rights of the parties. and so as i said, extortion is a term -- a legal term which is someone demanding money with no longer will claim to it. i am simplifying this.

there's different definitions of extortion that apply to different situations, but in the context of this case that is the simplest description of the case i believe. can i the second circuit panel took over a year to issue its ruling suggesting that to run as a novelty in importance of the case, in our opinion, delta with the fifth amendment claim in just one paragraph. did you believe that this was an ordinary takings case? >> well, cases present claims by parties. and to the extent that he was raising claims that sounded in the issues the court was looking at in kelo, certainly in kelo hadn't come down and the corps had to for whatever reason determine that somehow the kelo

decision affected the statute of limitations question, it may have had to read to the question of, but courts to often wait for supreme courts to act on cases that are pending in order to see if some form of its analysis changes or not or inform whether a different look should be given to the case, but on the bottom-line issue kelo did not change in the judgment of the panel, the statute of limitations question. >> okay, regardless of the statutes of limitations, i am curious why you didn't elaborate on your kelo analysis and why wasn't this opinion published? >> well, kelo did not control the outcome. the statute of limitations did it. so there was no basis to go into an elaborate discussion of kelo. the discussion of kelo really

was to say that we had understood the public taking issue that he had spent a lot of time in his argument about, but the ruling was based on an era statute of limitations around so the kelo discussion to not need to be longer because it was in the holding of the case. the holding of the case was the statute of limitations. >> this on another case, the supreme court reversed you 63 just three months ago in energy corporation arses river keeper. you held that the interim until protection agency which is the agency with expertise could not use a cost-benefit analysis in adopting regulations from the construction of water structures that had an impact on finish. rather you interpreted and the clean water act to hold that epa

had to require upgrades to technology that achieved the greatest reduction in adverse environmental impact coming even when the costs of those upgrades were disproportionate to benefit. following long-established precedents, the supreme court held that the epa was reasonable in providing a cost-benefit analysis when adopting regulations under the clean water act. in reversing the supreme court question and your proper applications of settled law that i agency regulations should be upheld the so long as there is a reasonable. under chevron agency interpretation of statutes are entitled to deference so long as they are reasonable. another reason they aren't capricious and arbitrary. did you find it unreasonable that the epa was willing to allow money to be spent in a cost-effective manner by not requiring billions of additional dollars to be spent to save a minimal number of additional

fish? >> to be able to use your question i need to explain a little bit more about the background. the supreme court has now ruled in that case that the conclusion of the second circuit would not be upheld on this narrow question. but the question of the second circuit was looking at is what and did congress intend or mean when in the statute at issue is said that the agency had to use the best technology available to minimize adverse in rental impact. those were the statutes words. in looking at that, the circuit applied in general statutory construction principles which is in our judgment when it was of the ordinary meaning of