>> are you saying you are not bound by chevron then? to let no, absolutely not. chevron space to agency action or interpretation, but ultimately the task of a court is to give deference to what congress wants. benefit analysis in other statutes in this area, and determine what congress intended. and so we looked at the language and it said just what it said, best technology available to minimize adverse environmental

impact. we looked at how congress used cost benefit in similar statutes and similar provisions or i shouldn't say similar. in other provisions. we noted that under the statutes at issue, when congress wanted the agency to use cost benefit analysis, it said so. in this provision, congress was silent but the language in the panel's judgment was the language. and so in trying to discern what congress' intent was, we came to the conclusion not that cost had no role in the agency's evaluation, but that congress had specified a more limited role than cost benefit. we described it as cost effectiveness.

and in fact, we voted past our decision, asked and sent the case back to describe to us exactly what the agency had done, and why. had it used cost benefit, had it used cost effectiveness. but cost was always going to be a part of what the agency could consider. the issue was more in what approach did congress' words intend. and so agency deference is important, but congress is the one who writes the statutes. so you have to start at the court with what did congress intend. >> seems to me like you're saying during the expertise of the statute that the agency was being arbitrary and capricious. >> not at all, sir. we were trying to look at the statute as a whole and determine

what congress meant by words that appeared to say that best technology available had to minimize an environmental effect. as i said, that does have and as our opinion said, considerations of cost, but given that congress didn't use the cost benefit or give the agency cost benefit approval in the terms of this particular provision, while it has in others, we determined that the agency and precedent, interpreting provisions, limited the use of cost benefit analysis. >> in another 2004 administrative law case dealing with environmental issues, nrdc versus abraham, you voted to strike down a bush administration regulation and reinstate a clinton

administration environmental rule that had never even become final. in this case, it appears you also fairly narrowly interpreted chevron deference when striking down epa adoptions of reasonable regulations. if you were elevated to the supreme court, do you intend to replace an agency's policy decisions with your own personal policy opinions as it appears you did in both in the abraham case? >> no, sir. in that case, we were talking about and deciding an issue of whether the agency had followed its own procedures in changing policy. we weren't substituting our judgment for that of the agency. we were looking at the agency's own regulations as to the procedure that it had to follow in order to change an approach by the agency, so that was a

completely different question. with respect to deference to administrative bodies, in case after case, where chevron deference required deference, i have voted in favor of opposing administrative, executive and administrative decisions. >> this will probably have to be my last question. since 2005, you have been presiding judge on a panel of an appeal filed by eight states and environmental groups arguing that greenhouse gases are a public nuisance that warrant a court-imposed injunction to reduce emissions. your panel in connecticut versus american electric power, has sat on that case for 45 months or nearly three times the average of the second circuit. why after four years have you failed to issue a decision in this case? >> the american bar association

ruled on code of conduct does not permit me to talk about a pending case. i can talk to you about one of the delays for substantial a period of time in that decision and it was that the supreme court was considering a case, the massachusetts case, that had some relevancy or at least had relevancy to the extent that the panel asked the parties to brief further the applicability of that case. >> thank you, mr. chairman. >> thank you, senator grassley. senator feingold? >> judge, let me first say i don't mind telling you how much i'm enjoying listening to you, both your manner and your obvious tremendous knowledge and yu understanding of the law. in fact, i'm enjoying it so much that i hope when you go into these deliberations about cameras in the courtroom, that

you consider the possibility that i and other americans would like the opportunity to observe your skills for many years to come in the comfort of our family rooms and living rooms. i think -- >> you were a very good lawyer, weren't you, senator? >> but i'm not going to ask you about that one now. let me get into a topic that i discussed at length with two most recent supreme court nominees. chief justice roberts and justice alito. that's the issue of executive power. in 2003, you spoke at a law school class about some of the legal issues that have arisen since 9/11. you started your remarks with a moving description of how americans stood together in the days after those horrific events and how people from small midwestern towns and people from new york city found their common threads as americans, you said. as you said in that speech, while it's hard to imagine that something positive could ever result from such a tragedy, that there was a sense in those early days of coming together as one

community, that we would all help each other get through this and it was, of course, something that none of us had ever experienced before and something i have often discussed as well, but i have to also say in the weeks and months that followed, i was gravely disappointed that the events of that awful day, the events that had brought us so close together as one nation, were sometimes used, judge, to justify policies that departed so far from what america stands for. i'm going to ask you some questions that i asked now chief justice roberts at his hearing. did that day, 9/11, change your view of the importance of individual rights and civil liberties and how they can be protected? >> september 11th was a horrific tragedy. for all of the victims of that tragedy and for the nation. i was in new york, my home is

very close to the world trade center. i spent days not being able to drive a car into my neighborhood because my neighborhood was used as a staging area for emergency trucks. the issue of the country's safety and the consequences of that great tragedy are the subject of continuing discussion among not just senators, but the whole nation. in the end, the constitution by its terms protects certain individual rights. that protection is often back specific. many of its terms are broad. what's an unusual search and

seizure, what are other questions that are fact-specific. but in answer to your specific question, did it change my view of the constitution, no, sir. the constitution is a timeless document. it was intended to guide us through decades, generation after generation, to everything that would develop in our country. it has protected us as a nation. it has inspired our survival. that doesn't change. >> i appreciate that answer, judge. are there any elements of the government's response to september 11th that you think maybe 50 or 60 years from now, we as a nation will look back on with some regret? >> i'm a historian by undergraduate training. i also love history books. it's amazing how difficult it is to make judgments about one's

current position. that's because history permits us to look back and to examine the actual consequences that have arisen and then judgments are made. as a judge today, all i can do, because i'm not part of the legislative branch, it's the legislative branch who has the responsibility to make laws consistent with that branch's view of constitutional requirements and its powers, it's up to the president to take his action and then it's up to the court to just examine each situation as it arises. >> i can understand some hesitance on this but the truth is that courts are already dealing with these very issues. the supreme court itself is now struck down a number of post-9/11 policies and you yourself sat on a panel that

struck down one aspect of a national security letter statute that were expanded by the patriot act. so i would like to hear your thoughts a bit on whether you see any common themes or important lessons in the court's decisions in rasul, hamdi hamden, what is your general understanding of that line of cases? >> that the court is doing its task as judges. it's looking in each of those cases at what the actions are of either the military and what congress has done or not done, and applied constitutional review to those actions. >> is it fair to say given that line of cases that we can say that at least as regards the supreme court, it believes mistakes were made with regard to the post-9/11 policies? in each of those cases, there was an overturning of a decision either by the congress or the executive.

>> i smiled only because that's not the way that judges look at that issue. we don't decide whether mistakes were made. we look at whether action was consistent with constitutional limitations or statutory limitations. >> in each of those cases there was a problem with either constitutional violation or a problem with the congressional action, right? >> yes. >> that's fine. as i'm sure you're aware, many of us on the committee discussed at length with the prior supreme court nominees the framework for evaluating the scope of executive power, the national security context. you already discussed this at some length with senator feinstein, in the youngstone case and i and others on the committee are deeply concerned about the very broad assertion of executive power that's been made in recent years and interpretation that is been used to authorize the violation of

clear statutory prohibitions from the foreign intelligence surveillance act to the anti-torture statute. you discussed with senator feinstein the third category, the lowest ebb category in the youngstone framework. that's where as justice jackson said, the president's power's at its lowest ebb because congress has, as you well explained it, specifically prohibited some action. i take the point of careful scholars who argue that hypothetically speaking, congress could conceivably pass a law that is plainly unconstitutional, for example, if congress passed a law that said that somebody other than the president would be the commander in chief of a particular armed conflict and not subject to presidential direction, presumably that would be out of bounds. but setting aside such abstract hypotheticals, as far as i'm aware, i'm pretty sure this is accurate, supreme court has never relied on the youngstone framework to conclude the president may violate a clear statutory prohibition. in fact, in youngstown itself, the court rejected president

framework doesn't change, which is each situation would have to be looked at individually because you can't determine ahead of time with hypotheticals what a potential constitutional

conclusion will be. i may have said to an earlier question academic discussion is just that. it's presenting the extremes of every issue and attempting to debate about on that extreme of a legal question, how should the judge rule. >> i'll concede that point, judge. given your tremendous knowledge of the law and your preparation, i'm pretty sure you would have run into any example of where this had happened. i just want to know, i am unaware and is anybody aware of an example where something was justified under the president's power under the lowest ebb, i would love to know about it. i think that's not a question of a hypothetical. that's a factual question about what the history of the case law is. >> i can only accept your assumption. as i said, i have not had sufficient cases to have looked

at what i know in light of that particular question that you're posing. >> in august 2002, the office of legal counsel at the department of justice issued two memoranda considering the legal limits on interrogation of terrorism detainees. one of these contained a detailed legal analysis of the criminal law prohibiting torture, it concluded among other things that enforcement of the anti-torture statute would be an unconstitutional infringement on the president's commander in chief authority. judge, that memo did not once cite to the youngstown case or to justice jackson's opinion in youngstown. we just learned on friday in a new inspector general report that a november 2001 olc memo providing the legal basis for the so-called terrorist surveillance program also did not cite youngstown. now, i don't think you would have to be familiar with those memos to answer my question. does it strike you as odd that a complex legal analysis of the anti-torture statute or the fisa act that considers whether the president could violate those

statutes would not even mention the youngstown case? >> i have never been an advisor to a president. that's not a function i have served so i don't want to comment on what was done or not done by those advisors in that case and it's likely that some question, and i know some are pending before the court in one existing case, so i can't comment. all i can comment on whether that's surprising or not. i can only tell you that i would be surprised if a court didn't consider the youngstown framework in a decision involving this question because it is that case's framework is how these issues are generally approached. >> good. i appreciate that answer. let me go to a topic that

senator leahy and senator hatch discussed with you at some length, the second amendment. i believe the second amendment grants citizens an individual right to own firearms and frankly, he was elated when the court ruled in heller last year basically what i think had been a mistake all along, did not recognize it is an individual right. the question of whether the second amendment rights are incorporated in the 14th amendment's guarantee of due process of law and therefore, afflicable to the states as you pointed out was not decided in heller. a supreme court decision in 1886 specifically held that the second amendment applies only to the federal government. so in my view, it is unremarkable that as a circuit court judge in the maloney case, you would follow applicable supreme court precedent that directly controlled the case rather than apply your own guess at where the court maybe headed after heller. i think that would be an unfair criticism of a case that i think you needed to rule that way, given the state of the law. but let me move on from that, because many of my constituents would like to know more about how you would make such a

decision as a member of the highest court. i want to follow up on that. first of all, am i right that if you're confirmed, and the court grants cert in the maloney case, you would have to recuse yourself from its consideration? >> yes, sir. my own judgment is that it would seem odd indeed if any justice would sit in review of a decision that they authored. i would think that the judicial code of ethics that govern recusals would suggest and command that that would be inappropriate. >> fair enough. what about if one of the other pending appeals comes to the court such as the seventh circuit decision in nra versus chicago which took the same position as your decision in maloney, would you have to recuse yourself from that one as well? >> there are many cases in which a justice, i understand, has decided cases as a circuit court judge that are not the subject

of review. that raised issues that the supreme court looks at later. what i would do in this situation, i would look at the practices of the justices to determine whether or not that would counsel to recuse myself. i would just know that many legal issues, once they come before the court, present a different series of questions than the one addresses at the circuit court. >> let's assume you were able to sit on one of these cases or a future case that deals with this issue of incorporating the right to bear arms. as applied to the states. how would you assess whether the second amendment or any other amendment that is not yet been incorporated through the 14th amendment should be made applicable to the states? what's the test the supreme court should apply? >> that's always the issue that litigants are arguing in litigation. so to the extent that the

supreme court has not addressed this question yet, and there's a strong likelihood it may in the future, i can't say to you that i prejudged the case and decided this is exactly how i'm going to approach it. >> but what would be the general test for incorporation? what is the general principle? >> one must remember that the supreme court's analysis in its prior precedent predated its principles or the development of cases discussing the incorporation doctrine. those are newer cases. and so the framework established in those cases may well inform -- as i said, i'm hesitant to prejudge it in saying they will or won't, because that will be what the parties are going to be arguing in the litigation. but it is -- i'm sorry. >> no, go ahead. >> i was just suggesting that i do recognize that the court's

more recent jurisprudence in incorporation with respect to other amendments has been more recent and those cases as well as stare decisis and a lot of other things will inform the court's decision on how it looks at a new challenge to a state regulation. >> of course, it is true that despite that trend you just described, the supreme court has not incorporated several constitutional amendments as against the states but most of those are covered by constitutional provisions and state constitutions and the supreme court decisions that refuse to incorporate the federal constitutional protections like the case involving the second amendment, 19th century case, date back nearly a century. so after heller, doesn't it seem almost inevitable that when the supreme court does again consider whether the second amendment applies to the states, that it will find the individual rights to bear arms to be fundamental, which is a word that we have been talking about

today? after all, justice scalia's opinion said this. by the time of the founding the right to bear arms had become fundamental for english subjects. blackstone, whose works we have said constituted the preeminent authority on english law for the founding generations, cited the arms provision bear arms was one of the fundmental rights. it was the natural right of resistance and self-preservations and the right of having and using arms for self-preservation and defense. >> as i said earlier, you're a very eloquent advocate, but a decision on what the supreme court will do and what's inevitable will come up before the justices in great likelihood in the future. and so i feel that i'm threading the line of answering a question about what the court will do in a case that may likely come before it in the future. >> let's try it in a less lofty

way then. you talked about numchucks before. that's an easier kind of case. but what helder was about was that there was a law here in d.c. that said you couldn't have a handgun. if you wanted to have it in your house to protect yourself. it is now protected you should the constitution that the people of washington, d.c. can have a handgun. isn't there a danger here if you don't have this incorporate against the states we would have the result where is the citizens of d.c. have a constitutional right to have a handgun but the people of wisconsin might not have that right? doesn't that make it almost inevitable that you would have to apply this to the states? >> that's the question the court will have to consider. >> i appreciate your patience. >> and its meaning.

>> senator, the supreme court did hold there is in the second amendment an individual right to bear arms and that is as holding and that is the court's decision. i fully accept that. and in whatever new cases that come before me that don't involve incorporation as a second circuit judge, i would have to consider those issues in the context of a particular state regulation of firearms or other instruments. >> i accept that answer and going to move on to another area that i like to call secret law. and that's controlling legal authority that has direct effects on the rights of americans done entirely in secret. there are two strong examples of that. first, the fisa court often issues rulings involving substantive interpretation of the fisa that with very few exceptions have been kept from the public and until a recent change in the law, many were not

available to the full congress either. meaning members had been called upon to vote on statutory changes without knowing how the court interpreted the statute. second, the legal department issues rulings binding but kept from the congress. these legal documents may sometimes contain classified operational details that would need to be redacted. but i'm concerned that fisa could develop entirely in secret. i think it flies in the face of our traditional notion of an open and transparent legal system. does this concern you at all. can you say a little bit about the importance of the law itself being public? >> well, the question far judge is -- a judge would look at it is to examine first what policy choices the congress is making

in its legislation. it is important to remember that some of the issues that you are addressing were part of congressional legislation as to how fisa would operate. and as you just said, there's been amendments subsequent to that, and so a court would start with what congress has -- what congress has done, and whether the acts of the other branch of government is consistent with that or not. the issue of whether and how a particular document would affect national security or affect questions of that nature would have to be looked at with respect to an individual case. and as i understand it, there are review processes in the fisa

procedure. i'm not a member of that court so i'm not intimately familiar with those procedures, but i know that this is a part of the review process there in part. and so when you ahave concern, there is always some attention paid to the issue of the public reviewing or looking at the actions that a court is taking. but that also is tempered with the fact that there are situations in which complete openness can't be had for a variety of different reasons. and so courts -- i did as a district court judge and i have as a circuit court judge, looked at situations in which@@@@@@)rri

it's sort of hard for me to imagine a threat to national security by revealing properly redacted documents as simply referring to the legal basis for something. isn't there a distinction between those two things. >> it's difficult to speak from the abstract.

in large measure, as i explained, i'm never been a part of the fisa court, and so i've never had the experience of reviewing what those documents are and whether they, in fact, can be reacted or not. without creating risks to national security. one has to think about what explanations the government has. there's so many issues a court would have to look at. >> let me go to something completely different. there's a lot of talk about the concept of empathy. the judge's ability to feel empathy does not mean the judge should rule one way or the other, as you well explained. but i agree with president obama that it's important for our judges to understand the real-world implications of their decisions and seek to understand both sides of an issue. judge, your background is remarkable. as you explained yesterday, your parents came to new york from puerto rico and after your father died, your mother raised you on her own in a housing

project in the south bronx. you are a life-long new yorker and a yankee fan, as i understand it, but many americans don't live in big cities. many live in rural areas and small towns and they root for the brewers and the packers. some might think that you don't have a lot in common with them. what can you tell me about your ability as a judge to empathize with them. to understand the everyday challenges of rural and small town american and how a supreme court decision might affect their lives. >> yes, i live in new york city and it is a little different than other parts of the country. but i spend a lot of time in other parts of the country. i've visited a lot of states. i've stayed with people who do all types of work. i've visited and vacationed on farms. i've lived and vacationed in

mountain tops. i've lived and vacationed in all sorts -- not lived. i'm using the wrong word. i've visited all sorts of places. in fact, one of my habits is when i travel somewhere new i try to find a friend to stay with them. it's not because i can't afford a hotel. usually the people inviting me would be willing to pay, but because i do think it's important to know more than what i live. and to try to stay connected to people and to different experiences. i don't think that one needs to live an experience without appreciating it. listening to it, watching it, reading about it. all of those things, experiencing it for a period of time help judges in appreciating

the concerns of other experiences that they don't personally. and as i said, i try very, very hard to ensure that in my life i introduce as much experience with other people's lyes as i can. >> i want to talk about wartime supreme court decisions like cora matsu versus the united states decision in which the supreme court upheld a policy to round up and detain japanese-americans in world war ii. it seems inconceivable that the u.s. government would have decided to put citizens based on their race and the supreme court allowed that to happen. i asked chief justice roberts about this. i'll ask you about this as well.

do you think cora matsu was wrongly decided? >> it was, sir. >> do you think people should resist the wor time fears that likely played a role in the 1944 decision? >> a judge should never rule from fear. a judge should rule from law and the constitution. it's inconceivable to me today that a decision permitting the detention, arrest of an individual solely on the basis of their race would be considered appropriate by our government. >> some of the great justices in the history of our country were involved in that decision. how does a judge resist those kind of fears? >> one hopes by having the wisdom of a harl em and a plesy.

our constitution has held us in good stead for over 200 years and our survival depends on upholding it. >> thank you, judge. . >> thank you very much, senator feingold. i was going to go senator kyl, senator schumer and then we'll take a break. senator kyl? >> thank you. could i return briefly to a series of questions that senator feingold asked at the very beginning relating to the meloni decision, relating to the second amendment. >> sure. good afternoon, by the way. >> good afternoon. you said if that case went

before the court you would recuse yourself from participating in the decision. >> in that case, yes. >> you're aware, there are two other decisions, both dealing with the same issue of incorporation, one in the ninth circuit and one in the seventh circuit. the seventh circuit decided the case similarly to your circuit. the ninth circuit has decided it differently although that case is on rehearing. if the court should take all three -- let's assume the ninth circuit stays with its decision so you do have the conflict among the circuits. and the court were to take all three decisions at the same time, i take it the recusal issue would be the same? you would recuse yourself in that situation? >> i haven't actually been responding to that question. i think you're right for posing it. i clearly understand that recusing myself from meloni would be appropriate. the impact of a joint would

indicate i would have to make the same decision. but it's left to the discretion of the justices because their participation in cases is so important. it is something that i would s discuss with my colleagues and follow their practices with respect to a question like this. >> i appreciate that. and i agree with your reading of it. the law, 28 usc section 455 provides among other things, any judge, magistrate judge of the united states shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. and that raises the judge's desire to consult with others and ensure that impartiality is not questioned by participating in a decision. i would think, eni would want

your responses. i would think that there would be no difference if the meloni case is denieded on its own or it's decided as one of two or three other cases, all considered by the court at the same time. >> that was different than the question posed earlier. >> will you not make a commitment entitlement? >> it's impossible to say. i will recuse myself in any case involving meloni. how any other argument or decision is presented i would have to see what happens. >> your circuit is not involved or the court takes either the seventh or ninth circuit and decides the question in corporation of the second amendment, i gather that in subsequent decisions you would consider yourself bound by that precedent or you would consider that to be the decision of the court on the incorporation question?

>> the decision in helder recognized the right to bear arms as applied to the federal government. >> that was the matter before your circuit. and as a result of the fact that the court decided poet of the other court cases and resolved that issue so the same matter would be before the court, would it not make sense for you to indicate should that same matter come before the court and you're on the court that you would necessarily recuse yourself from its consideration? >> i didn't quite follow the start of your question. i want to answer precisely but i not quite sure -- >> you agreed with me if the court considered either the seventh or ninth circuit or both decisions and decided the decision of incorporated the

second amendment to make it applicable to the states you would consider that binding precedence of the court. that, of course, was the issue in meloni, wouldn't you have to refuse yourself if either case came to the court? >> i indicated clearly the statute would reach meloni. how i respond to the court taking serb jacar certiorari. it would be on the basis of a particular state statue, which

might involve other questions. there are so many questions that people have to look at. >> i appreciate that. if the issue is the same, however, it's simply the question of incorporation. that is a very specific question of law. it doesn't depend upon the facts. i mean, it didn't matter that in your case you were dealing with a very dangerous arm, but not a firearm, for example. you still considered the question of incorporation. well, let me just try to help you along here. both justice roberts and justice alito made firm commitments to this committee -- let me tell you what justice roberts said. he said he would recuse themself, and i'm quoting now, from matters that he participated while a judge on the court of appeal matters.

and stins yince you did acknowl the incorporation decision was in your second circuit case, and the question i asked is whether that is the issue from the ninth and seventh circuits, you would consider yourself bound by that. it would seem to me that you should be willing to make the same kind of commitment that justice roberts and justice alito did. >> i didn't understand their commitment to be broader than what i have just said which is they would certainly refuse themselves from any matter -- i understood it to mean any case they had been involved in as a circuit judge. if their practice was to recuse themselves more broadly, then obviously i would take counsel from what they did. but i believe, if my memory is serving me correctly -- and it may not be, but i think so --

that judge alito as a supreme court justice has heard issues that were similar to ones that he considered as a circuit court judge. so as i've indicated, i will take counsel from whatever the practices of the justices are, with the broader question of what -- i appreciate that. >> issues which are similar is different from an issue which is the same. i would suggest there would be an imappearance of impropriety. if you decided the issue of incorporation one way, that's the same issue that went before the court and in effect you review your own decision. that to me would be a matter of inappropriate -- and perhaps you would recuse yourself. i understand your answer. let me ask you about what the president said whether you agree

with him. he used two different analogies. r the judge's heart? >> no,sir. i wouldn't approach the issue in judging the way the judge does. i can only explain what judges can do. judges can't rely on what's in their heart. they don't determine the law. congress makes the laws. the judge of the judge is to apply the law.

and so it's not the heart that compels conclusions in cases. it's the law. the judge applies the law to the facts before that judge. >> appreciate that. and has it been your experience that every case, no matter how tenuous it's been. and every lawyer, no matter how good their quality of advocacy, in every case, every lawyer has had a legal argument of some quality to make. some press dent that he decided. might not be the supreme court, might not be the court of appeals. might be a trial court somewhere. might not even be a court precedent. it may be a law review article or something. have you ever been in a situation where a lawyer said, i don't have any legal argument to make, judge, please go with your heart on this. or your gut.

>> i've had lawyers say something very similar to that. i've had lawyers question the legal basis of their argument. one lawyer put up his hands and said, but it's just not right. it's just not right is not what judges consider. what judges consider is what the law says. >> you've always been able to find a legal basis for every decision that you've rendered as a judge? >> well, to the extent that every legal decision has -- it's what i do in approaching legal questions. is i look at the law that's being cited. i look at how precedent informs it. i try to determine what those principles are of precedent to apply to the facts in the case

before me. and then do that. and so one -- that is a process. you use -- >> right. and all i'm asking -- this is not a trick question. >> i wasn't -- >> i can't imagine that the answer would be other wise then. yes, you've always found some legal basis for ruling one way or the other? some precedent, some reading of the statute, the constitution, whatever it might be. you haven't ever had to throw up your arms and say i can't find any legal basis for this opinion and i'm going to base it on some other factor. >> when you say -- when you use the word "some legal basis" it suggests that a judge is coming to the process by saying, i think the result should be here and so i'm going to use something to get there. >> no. i'm not trying to infer that any of your decisions have been incorrect or that you've used an inappropriate basis. i'm simply confirming what you first said in response to me

question about the president. that in every case the judge is able to find a basis in law for deciding the case. sometimes it may not be a case from your circuit. sometimes it may be somewhat tenuous and you may have to rely upon authority like scholarly opinions in law reviews or whatever. but my question was really very simple to you. have you always been able to have a legal basis for the decisions that you've rendered? and not have to rely upon some extra legal concept such as empathy or some other concept other than a legal interpretation or precedent. >> exactly, sir. we apply law to facts. we don't apply feelings to fa facts. >> thank you for that.

>>' applying some commonality with his view of the law in judging, it's a concept i also disagree with, but in this respect, it is the speeches that you have given, and some of the writingings that you have engaged in have raised questions. because they appear to fit into what the president has described as this group of cases in which the legal process or the law simply doesn't give you the answer. and it's in that context that people have read these speeches and concluded that you believe that gender and ethnicity are an appropriate way for judges to make decisions in cases. now, that's my characterization.

i want to go back to -- i read your speeches and i read all of them. the one i happened to mark up here was the seton hall speech but it was i dental to the one at berkeley. you said this morning that the point of your speeches was to inspire young people. and i think that there's some in your speeches that certainly is inspiring and, in fact, it's more than that. i commend you on several of the things that you talked about, including your own background as a way of inspiring young people. whether they're a minority or not, regardless of their gender. you said some inspirational things to them. in raegd the cases your purpose was to discuss a different issue. in fact, let me put nit your

words. you said i intend to talk to you about my latina identity, where it came from and gender, race, and national orientation representation will have on the development of the law. and then after some preliminary and sometimes inspirational comments, you jumped back to the theme and said the focus of my speech tonight, however, is not about the struggle to get us where we are and where we need to go but instead to discuss what it will mean to have more women and people of color on the bench. you said no one can or should ignore asking or impondering what it will mean or not mean in the development of the law. you talked -- you cited some people who had a different point of view than yours.

you said i accept the proposition as professor resnick explains, to judge is an exercise of power and there is no objective stance, but only a series of perspectives. no neutrality, no escape from choice in judging, you said. i further accept that our experiences as women and people of color will in some way affect our decisions. now, you're deep into the argument here. you've agreed with resnick there is no objective stance, only a series of perspectives, no neutrality, which just as an aside is relativism run amuck. but then you say, what the professor's quote means to me is not all women or people of color

or in all circumstances, but enough women and people of color in enough cases will make a difference in the process of judging. you're talking here about different outcomes in cases. and you go on to substantiate your case by first of all citing a minnesota case in which three women judges ruled differently than two male judges in a father's visitation case. you cited two excellent studies, which tended to demonstrate differences between women and men in makes decisions in cases. you said, as recognized by legal scholars, whatever the cause is, not one woman or person of color in any one position, but as a group we will have an affect on the development of law and on judging. so you develop the theme, you substantiated it with some evidence to substantiate your point of view. up to that point, you had simply made the case, i think, that

judging could certainly reach -- or judges could certainly reach different results and make a difference in judging depending on their race or ethnicity. you didn't render a decision on whether they would be better judges or not. but then you did. you quoted justice o'connor to say a wise old woman or wise old man would reach the same decisions. you said i'm not sure i agree with that statement. and that's when you made the statement that's now relatively famous. i would hope a wise latina woman with the richness of her experience would more often than not reach a better conclusion. so here you're reaching a judgment that not only will it make a difference but that it should make a difference. you acknowledge that they made a

big difference in discrimination cases but it took a long time to understand -- it takes time and effort. in short, i accept the proposition that difference will be made by the presence of women and people of color on bench and my experiences will affect the facts that i choose to see. i don't know exactly what the difference will be in my judging but i accept that there will be some based on jegender in my latina heritage. you said that you weren't encouraging that. and you talked about how we need to set that aside, but you didn't in your speech say that this is not good. we need to set this aside. instead you seem to be celebrating it. the clear inference is it's a good thing that this is happening. so that's why some of us are concerned, first with the president's al allucidation in

speech and then this article. it would lead someone to the conclusion that a, you understand it will make a difference. and b, not only are you not saying anything negative about that, but you seem to embrace that difference, in concluding that you'll make better decisions. that's the basis of concern that a lot of people have. please take the time you need to respond to my question. >> thank you. i have a record for 17 years. decision after decision, decision after decision. it is very clear that i don't base my judgments on my personal experiences or my feelings or my biases. all of my decisions show my respect for the rule of law, the fact that regardless about if i

can identify a feeling about a case, which is part of what that speech did talk about. there are situations where one has reactions to speeches, to activities. it's not surprising that in some cases the loss of a victim is very tragic. a judge feels with those situations and acknowledging that there is a hardship to someone doesn't mean that the law commands the result. i have any number of cases where i have acknowledged the particular difficulty to a party or disapproval of a party's action and said no, but the law requires this. so my views, i think, are demonstrated by what i do as a judge. i'm grateful that you took notice that much of my speech, if not all of it was intended to

inspire. and my whole message to those students was that i hope i see you in the courtroom someday. i often ended my speeches by saying and i hope someday you're sitting on the bench with me. and so the intent of the speech was to inspire them to believe, as i do, as i think everyone does, that life experiences enrich the legal system. i use the words, process of judging. that experience that you look for in choosing a judge, whether it's the aba rule that says the judge has to be a lawyer for "x" number of years or it's the experience that your committee looks for in terms of what's the background of the judge? have they undertake serious

consideration of constitutional questions.zzi"zz it shows these young people that you're talking to with a little hard work it doesn't matter where you came from, you can make it and that's why you hope to see them on the bench. i totally appreciate that. the question is if you leave them with the impression that it's good to make difference decisions because of their ethnicity or gender.

it strikes me you could have easily said in here. blind lady justice doesn't permit us to base decisions in cases on our ethnicity or gender. i found only one oblique reference in your speech to say you warned against that. all the other statements seem to embrace it. certainly to recognize it and almost seem as if you're powerless to do anything about it. i accept this will happen, you said. while you appreciate what you're saying it still doesn't answer to me the question of whether you think these -- that ethnicity or gender should be making a difference. >> there are two differences, i believe, issues to address and to look at because various statements are being looked at

and tied together. but the teaches as it's structure d didn't do that. much of the speech about the differences there will be in judging was in the context of my saying or addressing an academic question. all the studies you reference i cited in my speech were just that study. they were suggesting that there could be difference. i was inviting my students to think about that question. those were the quotes you had and reference say that. we have to ask this question, does it make a difference and if it does, how? and the study about differences in outcomes was in that context. there was a case in which three women judges went one way and two men went the other.

but i didn't suggest that that was driven by their jender. you can't make that judgment until you see what the law actually said. and i wasn't talking about what law they were interpreting in that case. i was just talking about the academic question that one should ask. >> if i could just interrupt. i think you just contradicted your speech. because you said in the line before that, enough women and people of color in enough cases will make a difference in the process of judging. next comment. the minnesota supreme court has given us an example of that. so you did cite that as an example of gender making a difference in judging. now look, i'm not -- i don't want to be misunderstood here as disagreeing with a general look into the question of whether people's gender or ethnicity or background in some way affects their judging. i suspect you can make a very good case that that is true in some cases.

you cite two other studies. i'm not questioning whether the studies are not valuable. in fact, i agree with you whether we know this thing to set aside the precedence that we have. i tried a lot of cases. it always depended on the luck of the draw. what judge you got. 99 times out of 100 it didn't matter. we got judge jones, fine. we got judge smith, fine. in federal district court in arizona there was one judge you didn't want to get. all of the lawyers knew that, because they knew he had pred

lixs that were difficult for him to set aside. it's tough to examine whether or not those dice booiss and prejudices exist in order to set them aside. the fault i have with your speech is you not only don't let these students know that you need to set it aside. you don't say that's what you need this information for, but you almost celebrate it. you say if there is enough of us, we will make a difference, inferring that it is a good thing if we begin deciding cases differently. let me just ask you one last question here. i mean, can you -- have you ever seen a case where to use your example the wise latina made a better decision than the nonlatina judges? >> no. what i've seen -- >> and i don't like all of your decisions, but -- i was just saying that i know that she appreciates her own decisions and i'm -- i don't mean to denigrate her decisions, mr. chairman.

>> i was justing a rhetorical that harkens back to justice o'connor because her literal words have a meaning that neither of us, if you were looking at it in their exact words make any sense. justice o'connor was a far part of a court in which she greatly respected her colleagues and yet those wise men, i'm not going to use the other word did reach different conclusions in deciding cases. i never understood her to be attempting to say that that meant that those people who disagree with her were unwise or unfair judges. as you know, my speech was intending to inspire the students to understand the richness that their backgrounds

could bring to the judicial process in the same way that everybody else's background does the same. when i decide a case, i think about my italian ancestors and their experiences coming to this country. i don't think anybody thought that he was saying that commanded the result in the case. these were students and lawyers who i don't think would have been misled either by justice o'connor's statement or mine in thinking that we actually intended to say we really make wiser and fairer decisions. i think what they could think and would think is that i was talking about the value that life experiences have in the words i use for the process of judging.

the words i chose, taking the rhetorical flourish is a bad idea. i do understand that there are some who have read this differently, and i understand why they might have concern, but i have repeated more than once, and i will repeat throughout, if you look at my history on the bench, you will know that i do not believe that any ethnic, gender or race group has an advantage in sound judging. you noted that my speech actually said that, and i also believe that every person, regardless of their background and life experiences can be good and wise judges. >> excuse me, just for the record, i don't think it was your speech that said that, but that's what you said in response

to senator sessions' question this morning. >> when we get the references made justice scalia, that was on january 11, 2006. what he said -- when i get a -- this is justice alito speaking. when i get a case about discrimination, i have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or >> give the photographers a chance -- all the photographers a chance to get back into -- into position. first off, judge, i compliment your family. you can't see them sitting

behind you because -- but they've all been sitting there very tentatively, and i have to think that after awhile, they probably would rather just be home with you. but i do appreciate it. and so we're going to go to senator schumer who did such a good job introducing you yesterday. senator schumer. >> thank you, mr. chairman and thank all of my colleagues, first, i'm going to follow up on some of the line of questioning of senator sessions and kyl, but i would like to first thank my republican colleagues. i think the questioning has been strong but respectful. i would also like to compliment you, judge. i think you've made a great impression on america today. the american people have seen today what we have seen when you have met with us one on one.

you are very smart and knowledgeable but down to earth. you are a strong person, but also very nice person. and you have covered the questions thoughtfully and modestly. so now i'm going to go on to that line of question. we've heard you asked about snippets of statements used to criticize you and challenge your impartiality. but we've heard precious little about the body and totality of your 17-year record on the bench. which everybody knows is the best way to evaluate a nominee. in fact, no colleagues have pointed to a single case in which you said the court should change existing law, in which you've attempted to change existing law explicitly or otherwise, and i've never seen such a case anywhere in your long and extensive record. so if a questioner is focusing on a few statements or, quote,

those few words, and doesn't refer at all to the large body of cases where you carefully applied the law regardless of sympathies, i don't think that's balanced or down the middle. and by focusing on these few statements, rather than your extensive record, i think some of my colleagues are attempting to try and suggest that you might put your experiences and empathies ahead of the rule of law. but the record shows otherwise, and that's what i now want to explore. now from everything i've read in your judicial record and everything i've heard you say, you put rule of law first. but i want to clear it up for the record, so i want to talk to you a little bit about what having empathy means, and then i want to turn to your record on the bench. which i believe is the best way to get a sense of what your record will be on the bench in

the future. now i believe that empathy is the opposite of indifference. the opposite of, say, having ice water in your veins, rather than the opposite of neutrality. and i think that's the mistake in concept that some have used. but let's start with the basics. will you commit to us today that you will give every litigant before the court a fair shake and that you will not let your personal sympathies toward any litigant overrule what the law requires? >> that commitment i can make and have made for 17 years. >> okay. well, good. let's turn to that record. i think your record shows extremely clearly that even when you might have sympathy for the litigants in front of you, as a judge your fidelity is first and foremost to the rule of law because, as you know, in the courtroom of a judge who ruled based on empathy, not law, one would expect that the most sympathetic plaintiffs would

always win. but that's clearly not the case in your courtroom. for example, in -- and i'm going to take a few cases here and go over them with you. for example, in air crash off long island, which is sort of a tragic but interesting name for a case, you heard the case of families of the 213 victims of the tragic twa crash which we all know about in new york. the relatives of the victims sued manufacturers of the airplane, which spontaneously combusted in midair in order to get some relief, though, of course, nothing a court could do would make up for the loss of loved ones. did you have sympathy for those families? >> all of america did. that was a loss of life. that was traumatizing for new york state because it happened off the shores of long island, and i know, senator, that you were heavily involved in

ministering to the families. >>@@@@@ @ @ @ @ @ rr>$#@ @ @ the appropriate remedial scheme for debts occurring off the united states coast is clearly a legislative policy choice which should not be made by the courts. is that correct? >> yes, sir. >> and that's exactly, i think, the point that my colleague from

arizona and others were making about how a judge should rule. how did you feel ruling against individuals who had clearly suffereded a profound personal loss and tragedy and were looking to the courts and to you for a sense of justice? >> one in as tragic, tragic, horrible situation like that can't feel anything but personal sense of regret. but those personal senses can't command a result in a case. as a judge, i served the greater interest, and that greater interest is what the rule of law supplies. as i mentioned in that case, it was fortuitous that there was a

remedy, and that remedy, as i noted in my case, was congress. and, in fact, very shortly after the second circuit's opinion, congress amended the law giving the victims the remedies that they had sought before the court. and my dissent was just pointing out that despite the great tragedy that the rule of law commanded a different result. >> and it was probably very hard, but you had to do it. here's another case. washington versus county of rockland. a suburb of new york. which was a case involving black corrections officers who claimed that they were retaliated against after filing discrimination claims. remember that case? >> i do. >> did you have sympathy for the officers filing that case? >> well, to the extent that anyone believes they've been

discriminated on the basis of race, that not only violates the law, but it -- one would have -- i wouldn't use the word sympathy, but one would have a sense that this claim is of some importance and one that the court should very seriously consider. >> right. because i'm sure, like judge alito said and others, you had suffered discrimination in your life as well, so you could understand how they might feel. whether they were right or wrong in the outcome in the -- in filing. >> i've been more fortunate than most. the discrimination that i have felt has not been as life altering as it has for others. but i certainly do understand it because it is a part of life that i'm familiar with and have seen others suffer so much with this. i have in my situation. >> now let me ask you again.

how did you feel ruling against law enforcement officers, the kind of people you've told us repeatedly you've spent your career working with, d.a.'s office and elsewhere and for whom you have tremendous respect. >> as with all cases where i might have a feeling of some identification with because of background or because of experiences, one feels a sense of understanding what they have experienced. but in that case, as in the twa case, the ruling that i endorsed against them was required by law. >> here's another one. it was called boykin versus keycorp. it was a case in which an african-american woman filed suit after being denied a home equity loan, even after her loan application was conditionally approved based on her credit

report. she claimed that she was denied the opportunity to own a home because of her race, her sex and the fact her home was in a minority concentrated neighborhood. she didn't even have a lawyer or anyone else to interpret the procedural rules for her. she filed the suit on her own. did you have sympathy for the woman seeking a home loan from the bank? >> clearly everyone has sympathy for an individual who wants to own their own home. that's the typical dream and aspiration, i think, of most americans. and if someone is denied that chance for reason they believe is improper, one would recognize and understand their feelings. >> right. and, in fact, you ruled that her claim wasn't timely. rather than overlooking the procedural problems with the

case, you hold fast to the complicated rules that keep our system working efficiently, even if it meant that claims of discrimination could not be heard. we never got to whether she was actually discriminated against because she didn't file in a finally manner. is my summation there accurate? you want to elaborate? >> yes, in terms of the part of the claim that we held was barred by the statute of limitation. in my -- in a response to the earlier question, to an earlier question, i indicated that the law requires some finality, and that's why congress passes or state legislature passes statutes of limitations that require people to bring their claims within certain time frames. those are statutes. and they must be followed, if a situation -- if they apply to a

particular situation. >> this is a case called pappus versus giuliani. you considered claims of a police employee fired for distributing terribly bigoted and racist materials. first, what did you think of the speech in question that this officer was distributing? >> nobody, including the police officer, was claiming that the speech wasn't offensive, racist and insulting. there was a question about what his purpose was in sending the letter. but my opinion dissent in that case pointed out that offensiveness and racism of the letter, but i -- or i issued a dissent from the majority

affirmance of his dismissal from the police department because of those letters. >> right. as i understand it, you wrote that what the actual lit tour that the police officer was distributing was, quote, patently offensive, hateful and insulting. but you also noted that, quote, and this is your words in a dissent, where the majority was on the other side, quote, three decades of jurisprudence and the centrality of first amendment freedoms in our lives -- that's your quote -- the employee's right to speech had to be respected. >> the situation of that case, that was the position that i took because that's what i believe the law commanded. >> even though, obviously, you wouldn't have much sympathy or empathy for this officer or his actions. is that correct? >> i don't think anyone has sympathy for what was undisputedly a racist statement.

but the first amendment commands that we respect people's rights to engage in hateful speech. >> right. >> now i am just going to go to a group of cases here, rather than one individual case. we could do this all day long where sympathy, empathy would be on one side but you found rule of law on the other side and you sided with rule of law. and so, you know, again, to me, analyzing a speech and taking words maybe out of context doesn't come close to analyzing the cases as to what kind of judge you'll be. and that's what i'm trying to do here. my office conducted an anal sifs your record in immigration cases, as well as the record of your colleagues. and in conducting this analysis, i came across a case entitled chen v. board of immigration appeals where your colleague said something very interesting. this was judge john newman.

he's a very respected judge on your circuit. he said something very interesting when discussing asylum cases. specifically he said the following. this is judge newman. "we know of no way to apply precise calibers to all asylum cases so any particular finding would be viewed by any three of the 23 judges of this court as either sustainable or not sustainable. panels will have to do what judges always do in similar circumstances, apply their best judgment, guided by the statutary standard to the administrative decision and the record assembled to support it. in effect what judge newman is saying is these cases would entertain more subjectivity, let's say, because, as he said, you could side many of them as sustainable or not sustainable. so given the subjectivity that exists in the asylum cases, it's clear if you wanted to be, quote, an activist judge, you

could certainly have found ways to rule in favor of sympathetic asylum seekers, even when the rule of law might have been more murky and not have dictated an exact result. yet in the nearly 850 cases, you have decided in the second circuit, you ruled in favor of the government. that is against the petitioner seeking asylum. immigrant seeking asylum. 83% of the time. that happens to be the exact statistical median rate for your court. it's not one way or the other. this means that with regard to immigration, you were neither more libinal nor more conservative than your colleagues. you simply did what judge newson said. you applied your best judgment to the record at hand. now can you discuss your approach to immigration cases, explain to this panel and the american people the flexibility that judges have in this context and your use of this flexibility in a very moderate manner?

>> reasonable judges look at the same set of facts and may disagree on what those facts should result in. it harkens back to the question of wise men and wise women being judges. reasonable people disagree. that was my understanding of judge newson's comments in the quotation you made. in immigration cases, we have a different level of review because it's not the judge making the decision whether to grant or not grant asylum. it's an administrative body. and i know that i will -- i'm

being a little inact, but i think using old terminology is better than using new terminology. and by that i mean the agency that most people know as the bureau of immigration has a new name now, but that it's more descriptive than its new name. >> i.c.e. >> some think the new name is descriptive, but that's -- >> in immigration cases, an asylum seeker has an opportunity to present his or her case before an immigration judge. they then can appeal to the bureau of immigration and argue that there was some procedural default below or that the immigration judge or the bureau itself has committed some error of law. they then are entitled by law to appeal directly to the second circuit. in those cases, because they are

administrative decisions, we are required under the chevron doctrine and other tests in administrative law to give deference to those decisions. but like with all processes, there are occasions when processes are not followed and an appellate court has to ensure that the rights of the asylum seeker have been -- whatever those rights may be, have been given. there are other situations in which an administrative body hasn't adequately explained its reasoning. there are other situations where administrative bodies have actually applied erroneous law. no institution is perfect. and so that@@@@@@@@@ @ @ @ @

of flexibility here as judge newman said just because of the way the law is. and yet you were exactly in the middle of the second circuit. if empathy were governing you, i don't think you would have ended up in that position. but i'll let everybody judge whether that's true. but the bottom line here in the

air crash case, in washington, in boykin in this whole massive asylum cases, you probably had sympathy for many of the litigants if not all of them. ruled against them. the cases we've just discussed are just the sampling of your lengthy record, but they do an effective job of illustrating the fact that in your courtroom, rule of law always triumphs. and would you agree? that's seems to me that rule of law triumphing probably best characterizes your record as your 17 years as a judge. >> i firmly believe in the fidelity to the law. in every case i approach, i start from that working proposition and apply the law to the facts before it. >> and has there ever been a case in which you ruled in favor of a litigant simply because you

were sympathetic to their plight, even if rule of law may not have led you in that direction? >> never. >> thank you. >> let's go on here to foreign law, which is an issue that has also been discussed. your critics have tried to imply that you'll improperly consider foreign law and sources in cases before you. you gave a speech in april that's been quoted discussing 4 whether it's permissiblea to use foreign law or international law to use cases. american analytic principles do not permit us to do so. just so the record is 100% clear, what do you believe is the appropriate role of any of foreign law in the u.s. courts? >> american law does not permit the use of foreign law or international law to interpret the constitution. that's a given, and my speech explained that, as you noted, explicitly.

there is no debate on that question. there is no issue about that question. the question is a different one because there are situations in which american law tells you to look at international or foreign law. and my speech was talking to the audience about that. and, in fact, i pointed out that there are some situations in which courts are commanded by american law to look at what others are doing. so, for example if the u.s. is a party to a treaty, and there's a question of what the treaty means, then courts routinely look at how other courts of parties who are siginators are interpreting that. there are some u.s. laws that say you have to look at foreign law to determine the issue. so, for example, if two parties have signed a contract in

another country that's going to be done in that other country, then american law would say you may have to look at that foreign law to determine the contract issue. the question of use of foreign law then is different than considering the ideas that it may, on an academic level provide. judges, and i'm not using my words. i'm using justice ginsburg's words. you build up your story of knowledge as a person, as a judge, as a human being with everything you read. for judges, that includes law review articles and there are some judges who have opined negatively about that. you use decisions from other courts. you built up your story of knowledge.

it is important in the speech i gave, i noted and agreed with justices scalia and thomas that one has to think about this issue very carefully because there are so many differences in foreign law from american law. but that was the setting of my speech and the discussion that my speech was addressing. >> and you've never relied on a foreign court to interpret u.s. law, nor would you. >> in fact, i know that in my 17 years on the bench, other than applying it in treaty interpretation or conflicts of law situations, i've not cited to foreign law. >> right. >> and it is important. american judges consider many nonbinding sources when reaching a determination. for instance, consider justice scalia's well-known regard for dictionary definitions. in determining the meaning of

words or phrases or statutes being interpreted by a court. in one case, mci versus at & t. justice scalia sided not one but five different dictionaries to establish the meaning of the word modify in a statute. would you agree that dictionaries are not binding on american judges? >> they are tools to help you in some situations to interpret what is meant by the words that congress or legislature uses. >> so it was not improper for justice scalia to consider dictionary definitions, but they're not binding. same as a citing of foreign law, as long as you don't make it binding on the case. >> yes, well, foreign law except in the situation we spoke about, and even then is not binding. it's american principles of construction that are binding. >> right.

>> okay. good. now we'll go to a little easier topic since we're close to the end here. it's a topic that you like and i like. and that is we've heard a lot of discussions about baseball in metaphorical terms. judges as umpires. we had a lot of that yesterday. a little of that today. but i want to talk about baseball a little more concretely. first, am i correct you share my love for america's pastime? >> it's often said that i grew up in the shadow of yankee stadium. to be more accurate, i grew up sitting next to my dad while he was alive watching baseball. >> okay. >> it's one of my fondest memories of him. >> so given that you lived near yankee stadium and you're from the bronx, are you a mets or yankee fan? but i guess you've answered that, right? >> be careful. you want to keep the chairman on your side. >> oh, no. as much as judge scalia might want to be nominated, i don't think she would adopt the red

sox as her team as you have. >> judge sotomayor. >> who did i say? >> i don't know who judge scalia roots for, but i know who judge sotomayor roots for. >> i know many residents of washington, d.c. have asked me to look at the senators. >> i do want to ask you just about the 1995 players strike case which comes up, but it's an interesting case for everybody. and i don't think -- you won't have to worry about talking about it because i don't think the mets versus yankees will come up or the red sox versus the yankees will come up before the court, although the yankees can use all the help they can get right now. but could you tell us a little about the case and why you listed it in your questionnaire that you filled out as one of your ten most important cases? and that will be my last

question, mr. chairman. >> that wasn't -- people often forget how important some legal challenges seem before judges decide the case. before the case was decided, all of the academics and all of newspapers and others talking about the case were talking about the novel theory that the baseball owners had developed in challenging the collective bargaining rights of players and owners. in that case, as with all the cases that i approach, i look at what the law is, what precedent says about it, and i try to discern in a new factual challenge how the principles apply. and that's the process i use in

that case, and it became clear to me after looking at that case that that process led to affirming and the decision of the national labor relationships board that it could and should issue an injunction on the grounds that it claimed. so that, too is a case where there's a new argument, a new claim, but where the application of the law came from taking the principles of the law and applying it to that new claim. >> thank you very much, senator schumer. senator graham? >> thank you, mr. chairman. >> and then we'll go to senator durbin. >> okay. thank you, judge. i know it's been a long day and we'll try to keep it moving here. i think you are one senator away from me after taking a break. my problem, quite frankly, is that as senator schumer

indicated, the cases that you've been involved in, to me, are left of center but not anything that jumps out at me, but the speeches really do. i mean, the speech you gave to the aclu about foreign law, we'll talk about that probably in the next round, was pretty disturbing. and i keep talking about these speeches because what i'm trying -- and i listen to you today. i think i'm listening to judge roberts. i mean, you know, i'm listening to a strict constructionist here. so we've got to reconcile in our own minds here to put the puzzle together to go with that last mind is that you've got judge sotomayor who has come a long way and done a lot of things that every american should be proud of. you've got a judge who has been on a circuit court for a dozen years. some of the things trouble me that, generally speaking, left of center, but within the main stream, and you have these speeches that just blow me away.

don't become a speechwriter if this law thing doesn't work out because these speeches really throw a wrinkle into everything. and that's what we're trying to figure out. who are we getting here. who are we getting as a nation? now legal realism, are you familiar with that term? >> i am. >> what does it mean for someone who may be watching the hearing? >> to me it means that you are guided in reaching decisions in law by the realism of the situation, of the -- it's less -- it looks at the law through the -- >> kind of touchy-feely stuff. >> not quite words that i would use because there are many academics and judges who have talked about being legal realists. i don't apply that label to myself at all. as i said, i look at law and

precedence and discern its principles and apply it to the situation. >> so you would not be a disciple of the legal realism school? >> no. >> all right. would you be considered a strict constructionist in your own mind? >> i don't use labels to describe what i do. there's been much discussion today about what various labels mean and don't mean. each person uses those labels and gives it their own sense. >> when judge rehnquist says he was a strict constructionist, did you know what he was talking about? >> i think i understood what he was referencing, but his use is not how i go about looking at -- >> what does strict constructionism mean to you? >> well, it means you look at the constitution as it's written or statutes as they are written

and you apply them exactly by the words. >> right. >> would you be an originalist? >> again, i don't use labels. and because -- >> what is an originalist? >> in my understanding, an originalist is someone who looks at what the founding fathers intended and what the situation confronting them was and you use that to determine every situation presented. not every, but most situations presented by the constitution. >> do you believe the constitution is a leaving, breathing, evolving document? >> the constitution is a document that is immutable to the sense that it's lasted 200 years. the constitution has not changed except by amendments. it is a process --n@@@rr))@ @ @' s

growing. >> do you think judges -- do you think judges have changed society by some of the landmark decisions in the last 40 years? >> well, in the last few years? >> 40 years. >> i'm sorry you seed. >> 40, i'm sorry.

4-0. >> do you think roe v. wade changed american society? >> roe vs. wade looked at the constitution and decided that the constitution is applied to a claims right applied. >> anything in the constitution that says a state legislator of a congress cannot regulate abortion or the definition of life in the first trimester? >> the holding of the court as -- >> i'm asking the constitution. does the constitution as written prohibit a legislative body, at the state or federal level from defining life or regulating the rights of the unborn or protecting the rights of the unborn in the first trimester? >> the constitution in the 14th amendment has a --

>> is there anything in the document written about abortion? >> the word abortion is not used in the constitution, but the constitution does have a broad provision concerning a liberty provision under the due process. >> and that gets us to the speech speeches. that broad provision of the constitution has taken us from no written prohibition protecting the unborn, no written statement that you can't voluntarily pray in school and on and on and on. and that's what drives us here, quite frankly. that's my concern. and when we talk about balls and strikes, maybe that's not the right way to talk about it, but a lot of us feel that the best way to change society is to go to the ballot box, elect someone

and if they are not doing it right, get rid of them through the electoral process. and a lot of us are concerned from the left and the right, that unelected judges are very quick to change society in a way that's disturbing. can you understand how people may feel that way? >> certainly, sir. >> now let's talk about you. i like you, by the way, for whatever that matters. since i may vote for you that ought to matter to you. one thing that stood out about your record is that when you look at the almanac of the federal judiciary, lawyers anonymously rate judges in terms of temperament. and here's what they said about you. she's a terror on the bench.

she's temperamental, excitable. she seems angry. she's overly aggressive, not very judicial. she does not have a very good temperament. she abuses lawyers. she really lacks judicial temperament. she believes in an out-of-control -- she behaves in an out-of-control manner. she makes inappropriate outbursts. she is nafty to lawyers. she will attack lawyers for making an argument she does not like. she can be a bit of a bully. when you look at the evaluation of the judges on the second circuit, you stand out like a sore thumb. in terms of your temperament. what is your answer to these criticisms? >> i do ask tough questions at oral arguments. >> are you the only one that asks tough questions at oral arguments? >> no, not at all. i can only explain what i'm doing, which is when i ask

lawyers tough questions, it's to give them an opportunity to explain their positions on both sides and to persuade me that they're right. i do know that in the second circuit, because we only give litigants ten minutes of oral arguments each, that the processes in the second circuit are different than in most othe circuits across the country. and that some lawyers do find that our courts, which is not just me, but our court generally is described as a hot bench. it's a term of art lawyers use. it means that they are peppered with questions. lots of lawyers who are unfamiliar with the process in the second circuit find that

tough bench difficult and challenging. >> if i may interject, judge, they find you difficult and challenging more than your colleagues. and the only reason i mention this is it stands out. there are many positive things about you and these hearings are designed to talk about the good and the bad. and i never liked appearing before a judge that i thought was a bully. it's hard enough being a lawyer, having your client there to begin with without the judge just beating you up for no good reason. do you think you have a temperament problem? >> no, sir. i can only talk about what i know about my relationship with the judges of my court and with the lawyers who appear regularly from our circuit. and i believe that my reputation is such that i ask the hard

questions, but i do it evenly for both sides. >> in fairness to you, there are plenty of statements in the record in support of you as a person that do not go down this line. but i would just suggest to you for what it's worth as you go forward here that these statements about you are striking. they're not about your colleagues. the ten-minute rule applies to everybody. and that, you know, obviously, you've accomplished a lot in your life. but maybe these hearings are time for self-reflection. this is pretty tough stuff that you don't see from -- about other judges on the second circuit. let's talk about the wise latina comment yet again. and the only reason i want to talk about it yet again is that i think what you said -- let me just put my vices on the table here. one of the things that i constantly say when i talk about the war on terror is that one of the missing ingredients in the mideast is the rule of law that

senator schumer talked about. that the hope for the mideast, iraq and afghanistan is that there will be a courtroom one day that if you find yourself in that court it would be about what you allegedly did, not who you are. it won't be about whether you are a sunni shia, a kurd or a pashtun. it will be about what you did. and that's the hope of the world, really, that our legal system, even though we fail at times, will spread. and i hope one day that there will be more women serving in elected office and judicial offices in the mideast. i can tell you this from my point of view. one of the biggest problems in iraq and afghanistan is the mother's voice is seldom heard about the fate of her children. and if you wanted to change iraq, apply the rule of law and have more women involved in having a say about iraq. and i believe that about

afghanistan. inside i think that's true here. i think for a long time a lot of talented women were asked, can you type? and we're trying to get beyond that and improve as a nation. so when it comes to the idea that we should consciously try to include more people in the legal process and the judicial process, from different backgrounds, count me in. but your speeches don't really say that to me. along the lines of what senator kyl was saying, they kind of represent the idea. there's a day coming when there will be more of us -- women and minorities -- and we're going to change the law. and what i hope we'll take away from this hearing is they need to be more women and minorities in the law to make a better

america. and the law needs to be there for all of us, if and when we need it. and the one thing that i've tried to impress upon you through jokes and being serious is the consequences of these words. and the world in which we live in. we're talking about putting you on the supreme court and judging your fellow citizens. and one of the things that i need to be assured of is that you understand the world as it pretty much really is. i can't find the quote but i'll find it here in a moment. the wise latina quote. do you remember it? >> yes. >> say it to me.

can you recite it from memory? >> i got it. all right. i would hope that a wise latina woman with the richness of her experience would more often than not reach a better conclusion than a white male. and the only reason i keep talking about this is that i'm in politics. and you got to watch what you say because, one, you don't want to offend people you are trying to represent. but do you understand, ma'am, that if i had said anything like that and my reasoning was that i'm trying to inspire somebody, they would have had my head. do you understand that? >> i do understand how those words could be taken that way,

particularly if read in isolation. >> well, i don't know how else you could take that. lindsey graham said that i will make a better senator than x because of my experience as a caucasian male makes me better able to represent the people of south carolina and my opponent was a minority. it would make national news, and it should. having said that, i am not going to judge you by that one statement. i just hope you'll appreciate the world in which we live in that you can say those things meaning to inspire somebody and still have a chance to get on the supreme court. others could not remotely come

close to that statement inside survive. whether that's right or wrong, i think that's a fact. does that make sense to you? >> it does, and i would hope that we've come in america to the place where we can look at a statement that could be misunderstood and consider it in the context of the person's life. and the work they have done. >> if that comes of this hearing, the hearing has been worth it all. that some people deserve a second chance when they misspeak. and you would look at the entire life story to determine whether this is an aberration or just a reflection of your real soul. if that comes from this hearing, then we've probably done the country some good. now let's talk about the times in which we live in. you're from new york. have you grown up in new york all your life? >> my entire life.

>> what did september the 11th, 2001, mean to you? >> it was the most horrific experience of my personal life and the most horrific experience in imagining the pain of the families of victims of that tragedy. >> do you know anything about the group that planned this attack, who they are and what they believe? have you read anything about them? >> i follow the newspaper accounts. i've read some books in the area, so i believe i have an understanding of that. >> what would a woman's life be in their world if they can control a government or a part of the world? what did they have in store for women? >> i understand that some of

them have@@@@@@@ @ @ @ @ @ @ @ decisions in this area. i've, obviously, examine d by referencing cases some of the procedures involved in military law.

but i'm not personally familiar with military law. i haven't participated -- >> i understand. from what you've read and what you understand about the enemy that this country faces, do you believe there are people out there right now plotting our destruction? >> given the announcements of certain groups and the messages that have been sent with videotapes, et cetera, announcing that intent and the answer would be based on that? yes. >> under the law of armed conflict, and this is where i may differ a bit with my colleagues, it is an international concept, the law of armed conflict. under the law of armed conflict, do you agree with the following statement -- that if a person is detained who is properly identified through accepted

legal procedures under the law of armed conflict as a part of the enemy force, there is no requirement based on a length of time that they be returns to the battle or released. in other words if you capture a member of the enemy force, is it your understanding of the law that you have to at some period of time let them go back to the fight? >> it's difficult to answer that question in the abstract of the reason that i indicated later. i've not been a student of the law of war other than to -- >> we'll have another round. i know you'll have a lot of things to do. but try to look at that. look at that general legal concept and the legal concept i'm expousing is that under the law of war, article five specifically of the geneva

convention requires the detaining authority to allow an importiant decisionmaker to determine the question of status. whether or not your a member of the enemy force. and see if i'm right about the law that if that determination is properly had, there is no requirement under the law of armed conflict to release a member of the enemy force that still presents a threat. i'd like you to look at that. now let's talk about your time as a lawyer. the puerto rican legal defense fund is that right? is that the name of the organization? >> it was then. i think -- i know it has changed names recently. >> okay. how long were you a member of that organization? >> nearly 12 years. >> okay. if not 12 years. >> during that time, you were involved in litigation matters. is that correct? >> the fund was involved in litigations. i was a board member of the

fund. >> okay. are you familiar with the position that the fund took regarding taxpayer funded abortion? the brief they filed? >> no inever reviewed those briefs. >> in their brief they argued that if you deny a low-income woman medicaid funding, taxpayer funds to have an abortion, if you deny her that, that's a form of slavery. and i can get the quotes. do you agree with that? >> i wasn't aware of what was said in those briefs. perhaps it might be helpful if i explain what the function of a board member is and what the function of the staff would be in an organization like the fund. >> okay. >> in a small organization as the puerto rican legal defense

fund was back then, it wasn't the size of other legal defense funds like the naacp legal defense fund or the mexican-american legal defense fund, which are organizations that undertook very similar work. in an organization like prld ef, the member's main responsibility is fund-raising. i'm sure a review of the board meets would show that's what we spent the most of our time on. to the extent that we looked at the organization's legal work, it was to ensure that it was consistent with the broad mission statement of the fund. >> is the mission statement of the fund to include taxpayer funded abortion?

was that one of the goals? >> our mission statement was broad like the constitution. which meant that its focus was on promoting the equal opportunities of hispanics in the united states. >> well, judge, i've got, and i'll share them with you and we'll talk about this more. a host of briefs for a 12-year period where the fund is advocating to the state court and the federal court that to deny a woman taxpayer funds, low-income woman taxpayer assistance in having an abortion is a form of slavery is an unspeakable cruelty to the life and health of a poor woman. was it -- was it or was it not the position of the fund to advocate taxpayer funded abortions for low-income women? >> i wasn't and i didn't as a board member review those

briefs. our lawyers were charged -- >> would it bother you if that's what they did? >> well, i know that the funds during the years i was there was involved in public health issues as it affected the latino community. it was -- >> is abortion a public health issue? >> well, it was certainly viewed that way generally by a number of civil rights organizations. >> do you personally view it that way some. >> it wasn't a question of whether i personally viewed it that way or not. the issue was whether the law was settled on what issues the fund was advocating on behalf of the community it represented. and so the question would become, was there a good-faith basis for whatever arguments they were making as the fund's

lawyers were lawyers. they had an ethical obligation. >> and quite frankly lawyers are lawyers and people who have causes that they believe in have every right to pursue those causes. and the fund, when you look -- you may have been a board member, but i'm here to tell you that file brief constantly for the idea that taxpayer-funded abortion was necessary and to deny it would be a form of slavery challenged parental consent is being cruel and i can go down a list of issues that the fund got involved in that the death penalty should be stricken because it is a form of racial discrimination. what's your view of the death penalty in terms of personally? >> the issue for me with respect

to the death penalty is that the supreme court since breg has determined that the death penalty is constitutional under certain situations. >> right. >> i have rejected challenges to the federal law and its application in the one case i handled as a district court judge but it's a reflection of what my views are on the law. >> as an advocate, did you challenge the death penalty as being an inappropriate punishment because of the effect it has on race? >> i never litigated a death penalty case personally. the fund -- >> did you ever sign a memorandum saying that? >> i signed the memorandum for the board to take under consideration what positions on behalf of the latino community

the fund should take on new york state reinstating the death penalty in the state. it's hard to remember because so much time has passed. >> i want you to be aware of what i'm talking about. let me ask you this. we've got 30 seconds left. if a lawyer on the other side filed a brief in support of the idea that abortion is the unnecessary and unlawful taking of an innocent life and public money should never be used for such a hain yeinous purpose, wo that disqualify them, in your opinion, from being a judge? >> advocate advocates on behalf of the client they have so that's a different situation than how a judge has acted in the cases before him or her.

>> the only reason i mention this, judge, is that the positions you took or the fund took i think, like the speeches, tell us some things and we'll have a chance to talk more about yo , but i believe the opportunity to talk to you. >> thank you, senator graham. senator durbin. >> thank you, mr. chairman, judge, good to see you again. >> hello, senator. thank you. and i thank you again for letting me use your conference room when i was as hobbled as i was. >> you were more than welcome there and there was more traffic of senators in my conference room than i've seen since i was elected to the senate. this has been an interesting exercise today for many of us who have been on the judiciary committee for a while because the people new to it may not know but there's been a little bit of a role reversal here. the democratic side is now largely speaking in favor of our

president's nominee. the other side is asking questions more critical. and in the previous two supreme court nominees the tableses tab turned. there were more critical questions coming from the democratic side. and there's also another contrast, obvious contrast. the two previous nominees that were considered while i was on the committee as chief justice roberts as justice alito were, are, white males and, of course, you come to this as a minority woman candidate. when we ask questions of the white male nominees of a republican president, we were basically trying to find out to make sure that they would go far enough in understanding the plight of minorities because, clearly, that was not in their dna. the questions being asked of you, from the other side, primarily are along the lines

of, will you go too far in siding with minorities? it's an interesting contrast as i watch this play out. and two things have really been the focus on the other side, though a lot of questions have been asked. one is one or two speeches. i took a look here. i think you've given over 500 speeches. so they would only find fault in one or two to bring up is a pretty good track record from this side of the table, if as politicians all we had were two speeches that would raise some questions among our critics, we would be pretty fortunate. and when it came down to your cases, it appears you've been involved at least as a federal judge in over 3,000 cases and it appears that the ricci case is really the focus of more attention than almost any other decision. i think that speaks pretty well of you for 17 years on the bench. and i'm going to join as others

have said in commending the other side because, although the questions have sometimes been pointed, i think they've been fair and i think you've handled the responses well. i would like to say that on the speech which has come up time and again, the wise latina speech, you know, the next paragraph in that speech i don't know if it has been read to the members but it should be because after you made the quote, which has been the subject of many inquiries here, you went on to say, let us not forget that wise men like oliver wendell holmes and justice correspond doze saturday voted on cases which upheld both race and sex discrimination in our society. until 1972 no supreme court case ever upheld the claim of a woman in a gender discrimination case. you went on to say, i like professor carter believe that we should not be so myopic to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people@@@ rr d b

areas if i might to follow up on because they're areas of particular interest to me. i'll return to one that senator graham just touched on, and that is the death penalty. a book which i greatly enjoyed and i don't know if you ever had a chance to read "becoming justice blackman," a story of

justice blackman's career. and many of the things that happened to him. now, late in his career he decided that he could no longer support the death penalty, and it was a long, thoughtful process that brought him to this moment. and he made the famous statement, maybe the best-known line attributed to him, in a decision collins versus collins. from this day forward i no longer shall tinker with the machinery of death. the opinion said, and i quote, 20 years have passed -- this is 1994 -- since this court declared that death penalty must be imposed fairly and with reasonable consistency or not at all. and despite the effort of the state courts to devise legal formulas and procedural roles to meet this daunting challenge,

the death penalty remains fraught with arbitrariness, discrimination, caprice, and mistake. judge sotomayor, i know that you've thought about this issue. senator graham made reference to the puerto rican legal defense education fund memo that you once signed on the subject. what is your thought about justice blackman's view that despite our best legal efforts the imposition of the death penalty in the united states has not been handled fairly? >> with respect to the position the fund took in 1980-81 with respect to the death penalty, that was, as i noted, a question of being an advocate and expressing views on behalf of the community on a policy choice new york was making, should we with or should we not

reinconstitute the death penalty? as a judge, what i have to look at and realize is that in 30 years or 40, actually, there has been -- excuse me. oh, i'm sorry. >> it's all right. >> enormous changes in our society. many, many cases looked at by the supreme court addressing the application of the death penalty, addressing issues of its application and when they're constitutional or not. the state of this question is different today than it was when justice blackman came to his views. as a judge, i don't rule in an abstract. i rule in the context of the

case that comes before me and a challenge to a situation and an application of the death penalty that arises in an individual case. i've been and am very cautious about expressing personal views since i've been a judge. i find that people who listen to judge judges express their personal views on important questions that the courts are looking at, that they have a sense that the judge is coming into the process with a closed mind, that their personal views will somehow influence how they apply the law. it's one of the reasons why, since i've been a judge, i've always been very careful about not doing that. i think my record speaks more loudly than i can. >> it does. >> about the fact of how careful

i am about ensuring that i'm always following the law and not my personal views. >> well, and the one death penalty case that you handled as district court judge, united states versus hately, this is after a 1983, i believe it was -- 1981 that you signed on to the puerto rican legal defense education fund memo recommending that the organization oppose reinstituting the death penalty in new york, after you had done that, some years later you were called on to rule on a case involving the death penalty. despite the policy concerns that you and i share, you denied the defendant's motion to dismiss and pave the way for the first federal death penalty case in manhattan in more than 40 years. now, the defendant ultimately accepted a plea bargain of life and you rejected his challenge to the death penalty and found that he had shown no evidence of discriminatory intent.

so that makes your point. whatever your personal feelings, you in this case at the district court level ruled in a fashion that upheld the death penalty. i guess i am trying to take it a step beyond, and maybe you won't go to where i want to take you and some nominees don't. but i guess the question that arises in my mind is how a man like justice blackman after a life on the bench comes to the conclusion that, despite all our best efforts, the premise of your 1981 memo is still the same, that ultimately the imposition of the death penalty in our country is too arbitrary. minorities in america today account for a disproportionate 43% of executions. that's a fact since 1976. and while white victims account for about one-half of all murder victims, 80% of death penalty cases involve victims who are

white. this raises some obvious questions we have to face on this side of the table. i'm asking you if it raises dwe questions of justice and fairness on your side of the table. >> in the heatly case, it it was the first prosecution in the southern district of new york of a death penalty case in over 40 years. mr. heatly was charged with being a gang leader of a crack and cocaine enterprise who engaged in -- the number wasn't 13, it it was very close to that, 13 murders to promote that enterpri enterprise. he did challenge the application of the death penalty charges against him on the ground that the prosecutor had made its decision to prosecute him and

refused him a cooperation agreement on the basis of his race. the defense counsel, much as you have senator, raised any number of concerns about the application of the death pena y penalty. and in the response to his argument, i held hearings not on that question but on the broader question of what has motivated on the specific legal question what has motivated this prosecutor to enter this prosecution and whether he was denied the agree the he sought on the basis of race. i determined that that was not the case and rejected his challenge. with respect to the issues of concerns about the application of the death penalty, i noted for the defense attorneys that in the first instance one fact

question of the effects of the death penalty, how it should be done, what circumstances warrant it or don't, in terms of the law, that that's a legislative question. and, in fact, i said to him, i acknowledged his concern. i acknowledged that many had expressed views about that. but that's exactly what i said, which is, i can only look at the case that's before me and decide that case. >> and this is a recent case before the supreme court i'd like to make reference to. d.a.'s office versus osborn involving dna. it turns out there are only three states in the united states that don't provide state legislative access to dna evidence that might exonerate someone who is in prison. i am told that since 1989 240

post-conviction dna exonerations have taken place across this country. 17 involving inmates on death row. now, the supreme court in the osborn case was asked, what about those three states? is there a federal right to access to dna evidence for someone currently incarcerated? the question is whether or not they were properly charged and convicted. and the court said no, there was no federal right. but it was a 5-4 case so though i don't quarrel with your premise that it's our responsibility on this side of the table to look at the death penalty, the fact is in this recent case, this osborn case, there was a clear opportunity for the supreme court right across the street to say, we think this gets to an issue of due process as to whether had someone sitting on death row in alaska, massachusetts, or oklahoma where their state law gives them no access, under the law, to dna evidence. so i ask you, either from the

issue of dna or from other perspectives, isn't it clear that the supreme court does have some authority in the due process realm to make decisions relating to the arbitrariness of the death penalty? >> the court is not a legislative body. it is a viereviewing body of whether a particular act by a state in a particular case is constitutional or not. in a particular situation, the court may conclude that the state has acted unconstitutionally and invalidate the act, but it's difficult to answer a question about the role of the court outside of the functions of the court, which is we don't make broad policies. we decide questions based on cases and the principles

implicated by that particular case before you. >> i follow you. and i understand the limitations on policy-related questions that you are facing. i'd like to go to another area relating to policy and ask your thoughts on it. we have. on occasion, every two years here a chance to go across the street for a rather historic dinner. members of the united states senate sit down with the members of the u.s. supreme court. we look forward to it. it's a tradition that's maybe six or eight years old, i don't think much older. great tradition. we get to meet them. they get to meet us. i sat down with one supreme court justice -- i won't name this person -- i said at the time that i was chairing a crime subcommittee in judiciary and said to this justice, what topic do you think i should be looking into as a senator when it comes to justice in the united states?

and this justice said, our system of corrections and incarceration in america. it has to be the worst. it's hard to imagine how it could be much worse if we tried to design it that way. today many the united states 2.3 million people are in prison. we have the most prisoners of any country in the world as well as the highest per capita rate. african-americans are incarcerated six times the rate of white americans. there's one significant reason for this, and you have faced at least an aspect of it as a judge, and that is the crack powder disparity in sentencing. i will readily concede i voted pour it, as did many members of the house of representatives, frightened by the notion of this new narcotic called crack that was so cheap and so destruct arive that we had to do something dramatic. we did. we put 100-1 ratio in terms of

sentencing. now we realize we made a serious mistake. 81% of those convicted of crack offenses in 2007 were african-american only about 25% of crack cocaine users are african-americans. i held a hearing on this, and a judge walton associate director of the office of national drug control policy testified. he basically said that this sentencing disparity between crack and powder has had a negative impact in courtrooms across america, specifically he stated that people come to view the courts with suspicious as institutions that mete out unequal justice and the moral authority of not only the federal courts but all courts is diminished. i might say for the record that this had administration has said that they want to change this and make it 1-1. we are working on legislation on a bipartisan basis to do so. you face this as a judge, at least some aspect of it.

you sentenced louis gomez, a nonviolent drug offender, to a five-year mandatory minimum and you said when you sentenced him, you do not deserve this, sir. i am deeply sorry for you and rrrr family,@@@@@@uárr i know for you and probably the other senators when a nominee to the court doesn't engage

directly with the societal issues that are so important to you, both as citizens and senators. and i know they're important to you because this very question you just mentioned to me is part of bipartisan efforts that you're making. and i respect that many have concerns on lots of different issues. for me as a judge, both on the circuit or potentially as a nominee to the supreme court, my role is a very different one. and in the luis gomez case, we weren't talking about the disparity. we were talking about the quantity of drugs and whether i had to follow the law on the statutory minimum that congress required for the weight of drugs

at issue. in expressing a recognition of the family situation and the uniqueness of that case, it was at a time when congress had not recognized the safety valve for first-time offenders under the drug laws. that situation had motivated many judges in many situations to comment on the question of whether the law should be changed to address the safety valve question. then make a statement making any suggestions to congress. i followed the law. but i know that the attorney general's office, many people spoke to congress on this issue and congress passed the safety valve. with respect to the crack

cocaine disparity, as you may know, the guidelines are no longer mand as a resuatory as a a series of supreme -- not so recent but supreme court cases probably in the last ten years. i think the first one was in 2000 if my memory is serving me right, or very close to that. at any rate, that issue was addressed recently by the supreme court in a case called u.s. versus kimbro. and the court noted that the sentence i sentencing recommendations was not based on its considered judgment that the 100-1 ratio was an appropriate sentence for this conduct, and the court recognized that sentencing judges could take that back into

consideration in fashioning an individual sentence for a defendant. and, many fact, the sentencing commission in very recent time has permitted defendants who have been serving prior sentences in certain situations to come back to court and have the courts reconsider whether their sentences should be reduced in a way specified under the procedures established by the sentencing commission. this is an issue that i can't speak further about because it is an issue that's being so actively discussed by convigres which is controlled by law. but, as i said, i can appreciate why not saying more would feel unsatisfying. but i am limited by the role i have.

>> one last question i'll ask you. i'd like to hear your perspective on our immigration courts. two years ago judge richard pozner from my home state of illinois brought this problem to my attention. in 2005 he issued a scathing opinion criticizing our immigration courts in america. he wrote, i quote, the adjudication of these cases at the administrative level has fallen below the minimum standards of legal justice, end of quote. for those who don't know this judge pozner, he is an extraordinary man. i wouldn't know where to put him exactly on the political spectrum because i'm not sure what his next book will be. he has written so many books. he is very gifted and thoughtful. in 2002, then-attorney general john ashcroft issued streamlining regulations that made dramatic changes in the immigration courts reducing the size of board of appeals from 23 to 11. this board stopped using

three-member panels and board members began deciding cases individually, often within minutes and without written opinions. in response, immigrants began petitioning the federal appellate court in large numbers. in 2004, immigration cases constituted 17% of all federal appeals, up from 3% in 2001. the last year before the regulations under attorney general ashcroft. i raised this issue with justice alito during his confirmation hearing. he told me, i agree with judge p pozner. that the way the cases are handled leaves a lot to be desired. what has been your experience on the circuit court when it came to these cases and what is your opinion of judge pozner's observation in his 2005 case? >> there's been four years since judge pozner's comments, and they have to be placed somewhat in perspective.

attorney general ashcroft, what you described as stream diagnosis lining procedures have been by i think all of the circuit courts that have addressed the issue affirmed and given chevron deference. so tquestion is not whether the streamline procedures are constitutional or not. but what happened when he instituted that procedure is that with all new things there were many imperfections. new approaches to things create new challenges. and there's no question that courts based with large numbers of immigration cases, as was the second circuit -- i think we had the second largest number of new cases that arrived at our

doorstep, the ninth circuit being the first, and i know the seventh had a significantly large number -- or reviewing processes that, as justice alito said, left something to be desired in a number of cases. i will say that that onslaught of cases and the expreconcerns expressed many a number of cases by the jublgs judges in the dia goes on in court cases with administrative bodies, with congress, resulted in more cooperation between the courts and the immigration officials in how to handle these cases, how to ensure that the process would be improved. i know that the attorney

general's office devoted more resources to the handling of these cases. there's always room for improvement. the agency is handling so many matters, so many cases, has so many responsibilities, making sure that it has adequate resources and training is an important consideration, again, in the first instance byyou set budg budget. in the end, all we can do is make sure due process is applied in each case. >> do you feel that it's changed since 2005 when judge pozner said the adjudication of these cases at the administrative level has fallen below the

minimum standards of legal justice some. >> well, i'm not endorsing his views because he can only speak for himself. i do know that in i would say the last two or three years the number of cases questioning the processes in published circuit court decisions has decreased. >> thank you very much. thank you, mr. chairman. >> thank you very much, senator durbin. i have discussed this with sa senator sessions and as i told him earlier also at his reque request -- we haven't finished the first round, but once we do, we'll have 20-minute rounds in the second. i'm going to urge senators that they don't feel the need to use the whole round, just as senator durbin just demonstrated that they not. here will be the schedule.

we will break for today. we will have -- we will begin at 9:30 in the morning. we will finish the first round of questions. the last round will be asked by senator franken. and then we will break for the traditional closed-door session with the nominee. so for those who have not seen one of these before, we do this with all supreme court nominees. we have a closed session just for the nominee. we do over the fdi report. we do it with all of them. we generally say it's routine. and with chief justice roberts and justice alito and justice breyer and everybody else. then we'll come back for a round of 20 minutes each.

during that round i will encourage senators, if all questions have been asked -- i realize sometimes all questions have been asked but not everybody has asked all the questions -- that we try to ask at least something new to keep up the interest. and then we can determine whether we're prepared, depending on how late it is, due to the panels or whether we have to do the panels on thursday. >> thank you, chairman leahy. i do think that the scheme you arranged for this hearing is good on the way we've gone forward. i thank you for that. we've done our best to be ready in a short timeframe and i believe the members on this side are ready. talking of questions, there ain't no harm in asking. isn't that our legal rule? to get people to produce their time? there's still some important questions and i think we will

certainly want to -- most members would awant to use that 20 minutes. appreciate that and look forward to being with you in the morning. >> i probably violated the first rule that i learned as a trial lawyer. you shouldn't ask a question if you don't know what the answer is going to be. but then i also had that other aspect where hope springs eternal. as we have a whole lot of other things going on, i would hope that we might -- senator cardin and senator specter and senator franken, i am sorry we didn't get to you yet. we will before we do the closed session. judge, thank you very much. >> thank you. >> we stand in recess.