>> public support. >> can simard funded, i guess. >> private contributions? >> how is c-span funded? 30 years ago america's cable companies created c-span as a public service, a private

business initiative, no government mandate, no government money. >> supreme court nominee judge sonia sotomayor continue answering questions today from members of the senate judiciary committee. over the next two hours we are going to show you portions of the hearing including questions on interpreting the constitution, the second amendment and abortion. our coverage begins with republican senator tom coburn, democratic senator arlen specter and democratic senator al franken asks questions in one hour. >> welcome again and first of all let me apologize to you because i was not able to hear although i get to read some of your testimony yesterday. we have a schedule that says we must finish healthcare within a certain time, what do we get it wrong or right. i was involved with that and i apologize. number two, i apologize for the actors that occurred in this committee. anybody who values live like i do, who is pro-life recognizes

the will you change minds is not yell at people and you could care about their concerns and you bring them to a level of understanding, not condemnation so for that i apologize and i admire your composure and i think of the chairman and the ranking member for the way they handled that as well. i want to spend a few moments with you but i kind of want to change the tone here a little bit in terms of what we talk about. a lot of americans are watching this hearing and when i get together with a couple of doctors they don't understand half of what i say and when two lawyers, and, most of us who are not lawyers like i am not have trouble falling so i want us to use her words that the american people can truly understand as the both ask you questions and as you answer them. i will try to do that and i hope you will as well because i think it benefits our country to do that. you have been asked a lot of questions about abortion and he said roe v. wade has said all along, where are we today and

what is the settled law in america about abortion? >> i can speak to what the court has said in its precedent in planned parenthood versus casey, the court reaffirmed the court holding of roe versus wade, that it will and has a constitutional right to terminate her pregnancy in certain circumstances. in casey, the court announced that in reviewing state regulations that may apply to that right, that the court considers whether that regulation has an undue burden on a woman's constitutional right. that is my understanding. >> let me give you a couple of cases. let's say i am 38 weeks pregnant and we discovered a small spina bifida sat on the lower sacrum,

the lower part of the back and my baby and i feel like i just can't handle a child with that. would it be legal in this country to terminate that child's life? >> i can't answer that question in the abstract, because i would have to look at what the state of the state was on that? and what the state said with respect to that issue. why i can say that the question of the number of weeks that a woman is pregnant has been, the approach to looking at a woman's has changed by casey. the question is, it is the state regulation regulating what a woman does in undue burden, so i can't answer your hypothetical because i can't look at it as an abstract without knowing what state laws exist on this issue or not and even if i knew that,

it would probably put the prime, because i am sure that situation might weatherize before the court. >> does technology in terms of the advancement of technology, should it have any bearing whatsoever on the way we look at roe v. wade? for example published reports most recently of a 21 week, 21 we, that is 142 days, feed is alive and well it nine months of age with no apparent complications because technologies have a fan so far that we can-- chevette have any bearing as we look at the law? >> the law has answered a different question. it has talked about the constitutional right of women. in certain circumstances, and as i indicated the issue becomes one of what is the state regulation in any particular-- >> i understand that all i am

asking it should it have any bearing? >> i can't answer that in the abstract because the question, as it would come before me, wouldn't be, and in a way that you format as a citizen, it would come to me as a judge in the context of some action that someone is taking, whether it is the state, if it is a private citizen being controlled by the state, challenging that action, those issues are-- >> viability as a portion of a lot of that and a lot of the decision made on the basis of viability. if we now have viability at 21 weeks why would that not be something that should be considered as we look at the status of what can and cannot happen, in terms of this right to privacy that has been granted under roe v. wade cases?

>> all i can see is what the court is done and the standard of what the court has applied, what factors that may or may not look at within a particular factual situation can't be predicted in a way to say yes absolutely that is going to be considered, know this won't be considered. >> all i am asking is whether it should, should viability, should technology at any time be considered as we discuss these very delicate issues that have such an impact on so many people and your answer is that you can't answer it? >> i can't because that is not a question that the court reaches out to answer. that is a question that is created by a state regulation of some sort or an action by the state that may or may not, according to some claimants, place an undue burden on her. we don't make the policy choices in the court. we look at the case before us with the interest that are

argued by the parties. we have got are president and try to apply its principles to the arguments parties are raising. >> i am reminded of one of your quotes that say you to make policy and i will continue with that. i am concerned, and i think many others are, does the state legislature have the right under the constitution to determine what is the death? have we statutorily to find, and we have in 50 states and most of the territories, what is the definition of death? do you think that is within the realm of the constitution that states can do that? >> it depends on what they are applying that definition to, and so there are situations in which they might and situations where that definition would or would not have the applicability to the dispute before the court.

allstate action as look back within the context of what the state is attempting to do and what liabilities it is imposing. >> but, you would not deny the fact that states do have the right to set up statutes that the fine, to give guidance to their citizens, what constitutes death? >> as i said it depends on what context they are attempting to do that. >> they are doing it so they limit the liability of others with regard to that decision. which would inherently be derided the state legislature as i read the constitution, and you may have a different response to that and which brings me back to technology again. as recently as six months ago, we now record fetal heart beats at 14 days's conception. we record fetal brainwaves at 39 days's conception and i don't expect you to answer this but i do expect you to pay attention

to it as a contemplate these big issues. we have the rule of the law, where we have defined death as the absence of those but we refuse to define life as the presence of those, and all of us are dependent at different levels on the other people during all stages of our development from the very early in the womb, outside of the womb to the very late and it concerns me that we are so inaccurate or inaccurate is an improper turn, inconsistent in terms of our application. you said that roe v. wade was set upon yesterday, and i believe it settled under the basis of the right to privacy. which has been-- so the question i would like to turn to, in your ruling of the second circuit ruling, and i am trying to

remember the name of the case, maloney. the position was, is that there is not an individual, fundamental right to bear arms in this country. is that a correct understanding of that? >> yes sir. >> please educate me if you would. >> in the supreme court's decision in heller, it recognized an individual right to bear arms as a right guaranteed by the second amendment, an important right, and one that limited the actions the federal government could take with respect to the possession of firearms. in that case we are talking about handguns. the maloney case presented a different question. and that was, whether that

individual right would limit the activities that states could do to regulate the possession of firearms. that question is addressed by a legal doctrine. that legal doctrine uses the word fundamental but it doesn't have the same meaning that common people understand that word to mean, so most people the word biax dictionary term is critically important, central, fundamental, it is sort of a rok basis. those meanings that are not how the law uses that term when it comes to what the states can do or not do. the term has a very specific legal meaning, which means is that the amendment of the constitution inc. against the states?

>> through the 14th amendment. >> and others, but quite generally, through the 14th. the question becomes whether and how that amendment to the constitution, that protection, applies or limits the states to act. in maloney, the issue for us was a very narrow one. we recognized that heller held, and it is the love the land right now in a sense of precedent, that there is an individual right to bear arms as it applies to government, federal government regulation. the question in maloney was different for us. was that bright inc. against the states and we determined that in supreme court precedent, the president had addressed that precise question and said it is

not so it was not fundamentally and that legal doctrine cents. that was the court's holding. >> did the supreme court say in heller that it definitely was not or did they just failed to realize that? >> they failed to rule. >> there is a very big difference. >> i agree. >> let me continue with that. i am sitting in oklahoma in my home in abs we have today as you see it as i do not have a fundamental inc. right to bear arms. as you see the lots today,. >> it is not how i see the law. >> as you see the interpretation of the law, in your opinion of what the lot is today is my statement a correct statement? >> it is not my interpretation. i was applying both supreme court precedent deciding that question and second circuit precedent that had directly answered that question and said it is not incorporated.

the issue of whether or not it should be is a different question, and that is the question that the supreme court may take up, and that in his opinion, justice the lee's suggested it should, but it is not what i believe. it is what the law has said about it. >> so, what does the law say today about the statement? where do we stand today about my statement that i have? i claim to have a fundamental, guaranteed, spelled out right under the constitution that this individual and applies to me the right to own and bear arms. am i right or am i wrong? >> i can't answer the question of incorporation other than to refer to precedent. precedent says, as the second circuit interpreted the supreme

court's precedent, that it is not incorporated. it is also important to understand that the individual issue of a person bearing arms is raise before the court in a particular setting. and by that i mean what the court will look at is a state regulation of your right, and then determine, can the state to better not? even once you recognize their right, you are always considering what the state is doing to limit or expand that right and then decide is that okay constitutionally? >> it is very interesting to me, i went back and read the history of the debate on the 14th amendment. for many of you who don't know what generated most of the 14th amendment was in reconstruction, seven states for taking away the right to bear arms by free men. recently freed slaves and much of the discussion in the congress was to restore that

right of the 2nd amendment through the 14th amendment, to restore an individual rights that was guaranteed under the constitution so one of the purposes for the 14th amendment, one of the reasons it came about is because those rights were being abridged in the southern states post civil war. let me move on. in the constitution, we have the right to bear arms whether it is incorporated or not. it is stated in there. i am having trouble understanding how we get to a point where a bright to privacy, which is not explicitly spelled out but spelled out to some degree in the fourth amendment, which has set a lot and is fixed and some things such as the second amendment, which is spelled out in the constitution is not settled law. i don't want you to answer that specifically but i would like to hear you say, how did we get there?

how do begin to the point where something that is spelled out in our constitution and guaranteed to west but something that isn't spelled of specifically in our constitution is. would you give me your philosophically answer? idol want to tie you down on any future decisions but how do we get there, when we can read this book and it says certain things and those are guaranteed but the things it doesn't say aren't? >> one of the frustrations with judges and their decisions by citizens is that, and this was an earlier response to senator cornyn, what we do what is different then the conversation that the public has about what it wants the lot to do. we don't judges make love. what we do it is we get a particular set of facts presented to us. we look at what those facts are,

what in the case of different constitutional amendments is, what states are deciding to do or not to do, and then look at the constitution and see what it says in an attempt to take its words and the principles and the precedence that have prescribed those principles and apply them to the facts before you. in discussing the 2nd amendment as it applies to the federal government, justice scalia noted that there had been long regulation by many states on a variety of different issues related to possession of guns. and, he wasn't suggesting that all regulation was unconstitutional. he was holding in that case that d.c.'s particular regulation was illegal. at do you know, there are many

states that prohibit felons from possessing guns, so does the federal government, and so it is not that we make a broad policy choice in say, this is what we want. what judges do. what we look at is what the other actors in the system are doing, their interest in doing it is, and how that fits to whatever situation they think they have to fix, whether congress or the state legislature has to fix. all of that is the court's function, so i can't explain it philosophically. i can only explain it by its setting and what the function of judging is about. >> thank you. let me follow one other question. as a citizen of this country, do

you believe i neatly in my ability to have self-defense, personal self-defense? dui have a right to personal self defense? >> i am trying to think if i remember a case where the supreme court has addressed that particular question, is there a constitutional right to self-defense, and i can't think of one. i could be wrong but i can't think of one. generally, as i understand most criminal law statutes are passed by states, and i am also trying to think if there is any federal law that includes a self dispense provision or not. i just can't. what i was attempting to explain is that the issue of self-defense is usually defined in criminal statutes by the state's laws.

and, i would think, although i haven't studied all of the state's laws. i am intimately familiar with new york. >> but do you have an opinion or can you give me your opinion of whether or not in this country i personally as an individual person have a right to self-defense? >> as i said, i don't know if that legal question has ever been presented. >> i am asking about your personal opinion. >> but, that is sort of an abstract question, with no particular meaning to the outside-- >> that is what the american people want to hear your honor. they want to know, do they have a personal right to self-defense does the 2nd amendment mean something under the 14th amendment? does how they take the constitution, not how are bright legal minds, but what they think is important, is it okay to

defend yourself in your home if you are under attack? in other words, the general theory is do i have that right and i understand if you don't want to answer that because it might influence your position that you might have in the case, and that is the finance it with me but those are the kinds of things people would like for us to answer and would like to know, not how you would rule or what you are going to rule and specifically what you think about it, but just yes or no, do we have that right? >> i know it is difficult to deal with someone like a judge who is though, whose thinking is so cornered by law, but. >> kind of like a doctor. i can't quit using dr. terms. >> that is exactly right, but let me try to address what you are saying in the context that i can, okay? which is what i have experience with, alright? which is new york criminal law because i was a former

prosecutor. i am talking in very broad terms but under new york lot if you are being threatened with imminent death or serious serious injury, you can use force to repel that. and, that would be legal. the question that would come up, and does come up before juries and judges, is how eminent is the threat? if the threat was in this room, i am going to come get you, and you go home and get, or i go home-- i don't want to suggest that-- [laughter] please, i don't want anybody to misunderstand what i'm trying to say. if i go home, get a done comecon back in shoot that may not be legal under new york club because he would have alternative ways-- >> you will have lots of

explaining to do. >> i would be in a lot of trouble then, but i couldn't do that under a definition of self defense. that is what i was trying to explain in terms of why, in looking at this as a judge, i am thinking about how that question comes up and how the answer can defer so radically, given the hypothetical facts before you. >> the problem is, is, wheat doctors think like doctors, judges think like judges, lawyers think like lawyers and what the american people want to see is inside, what you are that says in part of that is why-- i want to move to one other area. you been fairly critical of justice scalia's criticism of the use of foreign law in making decisions. and i would like for you to cite for me either in the

constitution or in the oath that you took outside of treaties, the authority that you can have to utilize foreign law in deciding cases in the courts of law in this country. >> i have actually agreed with justice scalia and thomas on the point that one has to be very cautious even in using foreign law with respect to the things american law permits you to, and that is in that treaty interpretation in conflicts of law because it is a different system of luck. >> but i accepted that and i said outside of those, in other areas where you will sit in judgment, can you cite for me the authority either given in your oath or the constitution that allows you to utilize laws outside this country to make the decisions about law inside this

country? >> my speech and my record on this issue, because i have never used it to interpret the constitution or to interpret american statutes, is that there is none. my speech has made that very clear. >> so, nechustan but this, there is no authority for a supreme court justice to utilize foreign law in terms of making decisions based on the constitution or the statute? >> unless the statute requires you or direct you to look at foreign law, and some do by the way, the answer is no. floren lots cannot be used as a holding or a precedent or to bind or to influence the outcome of a legal decision, interpreting the constitution or american law that doesn't direct you to that law. >> let me give you one of your

quotes. to suggest to anyone that you cannot law the use of foreign or international laws and sentiment based on a fundamental misunderstanding, what you would be asking american judges to do is to close the line to good ideas. nothing in the american legal system prevents us from considering those ideas. we don't want judges to have closed minds. just as much as we don't want judges to consider legislation and foreign law that is developed through bodies, elected bodies outside of this country to influence either rightly so or wrongly so, against what the elected representatives and constitution of this country says, so would you kindly explain the difference that i perceive them both of the statement versus the way you just answered? >> there is none. if you look at my speech you will see that repeatedly i pointed out both of the american

legal system was structured not to use foreign law. it repeatedly underscored that foreign law could not be used as a holding, as president or to interpret the constitution as a statute. what i pointed out in that speech is that there is the public misunderstanding of the word used and what i was talking about, one does not use those things in a sense of coming to a legal conclusion in a case. what judges do, and i cited justice ginsburg, is educate themselves because they build up a story of knowledge about legal thinking, about approaches that one might consider, but that is just thinking. it is an academic discussion, when you were talking about thinking about the idea is, then it is how most people think about the citation of foreign

law in a decision. they assume that if there is a citation to foreign law, that is starting the conclusion. seen other judges cite a foreign law, they're not using it to drive the conclusion, they're using just to point something out about a comparison between american law or foreign law, but they're not using it in the sense of compelling a result. >> i'm not sure i agree with that on the certain 8th amendment and 14th amendment cases. let me -- let me go to another area. i have just a short it's been said that we should worry about what other people think about cost in terms of how we interpret our own law,

and i'm paraphrasing not very well i believe so. is it important we look good to people outside of this country or is it more important that we have a jurisprudence that is defined correctly and followed correctly according to our constitution? and whatever the results may be, it's our result rather than a political correct results that might please of the people in the world? >> we don't render decisions -- we don't render decisions to please the home crowd or any of their crowd. i know that because i've heard speeches by a number of justices that in the past justices have indicated the supreme court hasn't taken any treaty cases and that maybe it should think about doing that because we are not participating in the discussions with countries on treaty provisions that are

ambiguous. that may be a consideration and to some justices some have expressed that as a consideration. my point is you don't rule to please any crowd. you do to get the ball right. under its terms. >> thank you. thank you, mr. chairman. over the next hour and a half more questions for supreme court nominee judge sonia sotomayor from members of the senate judiciary committee. democratic senator arlen specter is next followed by democratic senator al franken in half hour. than in an hour, republican senator, charles grassley. amol conversations [inaudible conversations]

[inaudible conversations] >> mcgeorge, what did you do with your mother? [laughter] >> she needed a short break but it wasn't because of senator specter or franken. >> i have a nice chat with amy klobuchar this morning. she was talking about when she first began comparing notes when why my wife both agreed -- now nurse is plus with advance in medicine. we will i just discussed this again with senator sessions, we will go first to senator

specter, then senator franken, and then we will recess and go into the other room. senator specter of course is former chairman of this committee. one of the most senior members of the senate and one of the most experienced. senator specter. >> thank you, mr. chairman. welcome back, judge sotomayor. you have held up very well all of the proceedings in the senate. this was the most exact among the witnesses. years ago as you dealt with the case of ashcroft versus tennessee they said it was unconstitutional to subject a suspect but that doesn't apply to nominees. and your family has been here

one. my wife, joan specter, who has been in office holder in her own rights as it has been a lot harder to listen to me than to make a speech herself. and you are engaged. i think beyond doing very well on stamina, you have shown intellect and the humor and prodded it and also modesty. so it's been a good hearing. notwithstanding all of those qualities the constitution says we have to decide whether the to consent. now that requires the hearing process and the questions. before going into a long list of issues which i have on the agenda -- separation of power, wireless wiretaps and secret cia

programs and voting rights and the americans for disabilities act and a woman's right to choose and environmental protection agency and clean water act and television and the second amendment -- i'd like to make an observation or two. there has been a lot of talk about a wise latino woman, and i think that this proceeding has tended to make a mountain out of a molehill. we have had a consistent life of people who make consistencies to their own backgrounds. we have our own perspective. justice o'connor talked about her life experience. justice alito talked about his family suffering from ethnic slurs. justice thomas pinpoint georgia emphasize talking about putting himself in the shoes of other people.

and justice scalia talked about being a racial minority. the expectation would be that a woman would want to say something to assert her confidence in a country which denied women the right to vote for decades, where the glass ceiling has limited people, where there is still disparagement of people on ethnic background. just this month in a suburb of philadelphia, hispanic children were denied access to a pool for whites only as were african-american children so i could see how someone would take in being a latino woman and assert that, assert herself. a lot has been made on the issue of empathy, but that the characteristic is not exactly out of place judicial

determinations. we've come a long way on the expansion of constitutional rights. oliver wendell holmes's famous statement that the life of the law is experience, not logic, the justice cardozo and palko connecticut talked about changing values. and the warren court changed the constitution practically every day, which i saw being of the district attorney's office which changes in search and seizure, confessions, miranda, right to counsel. who could have thought that it would take until 1963 to have the right to counsel gideon v.wainwright? we've heard a lot of talk about

the nomination proceeding of judge bork. and they tried to make bork into a verb. somebody being borked is credited welcome anybody who looks set the record will see that it's very, very different. we have a situation where george bork was an advocate on original intent from his days writing the law review article in the indiana law review. and how can you have our original intent with the 18th amendment was written by a senate of equal protection with the senate galleries which were segregated? or where you have judge bork who believed that equal protection applied only to the race and ethnicity? it didn't even apply to women. but it was a very thorough hearing. i spent beyond figuring days and three long sessions, five hours with judge bork. so it was his own approach which resulted. you've had an evolution of

constitutional law which i think it's empathy in an okay status, in an okay category. now, on to the issues. i began with an area of cases which the court has decided not to decide. and those cases can be even more important than many of the cases which the court decides. the docket of the court at the present time is very different from what it was a century ago. in 1886, the docket had 1,396 cases, decided 451. a hundred years later, there were only 161 signed opinions and 1985. in 2007, only 67 signed opinions during his confirmation

hearings, chief justice roberts said that the court, quote, could contribute more to the clarity and uniformity of all by taking more cases. judge sotomayor, do you agree with that statement by chief justice robert? >> i know, senator specter, that there are questions by many people, including senators and yourself, of justice roberts and other nominees about this issue. can the court take on more? and to the extent that there is concern about it, not that public opinion should drive the justices to take more cases just to take them, but i think what judge -- justice roberts was singing is the court needs to think about its processes to ensure that it's fulfilling --

>> judge sotomayor, how about more cases? >> well, perhaps i need to explain to you that i don't like making statements about what i think the court can do on tillite experienced the process. >> then let me move on to another question. [laughter] one case the court did not take involved the terrorist surveillance program, which i think, arguably, posed the greatest conflict between congressional powers under article 1 in enacting the foreign intelligence surveillance act, which provided for the exclusive wait to get wiretaps. the president disregarded that in a secret program called the terrorist surveillance program, didn't even tell the chairman of the judiciary committee, which is the required practice, or accepted practice, didn't tell the intelligence committees, where the law mandates that they

be told about such programs. it was only disclosed by the new york times. those practices confront us this day, with reports about many other secret case is not disclosed. the federal district court in detroit found the terrorist surveillance program unconstitutional. sixth circuit, in a 2-1 opinions said there was no standing. the dissent, i think pretty conclusively, had the much better of it on a serving standing. the supreme court of the united states certiorari. didn't even take up the case to the extent of deciding whether it shouldn't take it because of lack of standing. i wrote you a letter about this,

i wrote a series of letters, and gave you advanced notice that i would ask you about this case. so i'm not asking you how you would decide the case. but wouldn't you agree that the supreme court should have taken that kind of a major conflict on separation of powers? >> i know it must be very frustrating to use -- >> it sure is. all i was the chairman who wasn't notified. >> no, i'm sure -- >> and he was the ranking member who wasn't notified. >> i can understand not only colin chris's or your personal frustration, and sometimes of citizens when they are important issues that they would like the court to consider. the question becomes what do i do if you give me the honor to serve on the court. if i say something today, is that going to make a statement about how i'm going to prejudge

someone else's -- >> i'm not asking you to prejudge. i would like to know your standards for taking that case. if you have that kind of a monumental, historic conflict when the court is supposed to decide conflicts, but when the executive and legislative branches -- how can it possibly be justified want to take that case? >> there are often, from what i understand -- and that's from my review of supreme court actions and cases of situations in which they have or have not taken cases, and i've read some of their reasoning as to this, i know that with some important issues they want to make sure that there is into a procedural bar to the case of some type that would take away from whether they are, in fact, doing what they would want to do, which is -- >> well, was there a procedural barn? you have had weeks to mull that

over because i gave you a notice. >> senator, i'm sorry. i did all this over. my problem is that without looking at a particular issue and considering the cert briefs ogle, the discussion of potential colleagues as two reasons why a particular issue should or should not be considered -- >> well i can tell your not going to answer. let me move on. on a woman's right to choose circuit judge luttig in the case of richmond medical center said that casey versus planned parenthood was superstar decisis. do you agree with judge luttig? >> i don't use the word super. i don't know how to take that

word. all precedent of the court is entitled to the respect of the doctrine of the story decisis. >> do you think that roe versus wade has added weight on stare decisis to protect a woman's right to choose by virtue of casey versus planned parenthood has judge luttig said? >> that is one of the factors i believe courts have used to consider the issue of whether or not a new direction should be taken in the law. there is a variety of different factors the court use is not just one. >> that is one that would give extra weight. how about the fact the supreme court of the united states has had 38 cases after roe v. wade where it kind of reversed roe v. wade? would that add weight to the impact of roe v. wade 12 stare decisis to guarantee a woman's right to choose?

>> the history of a particular holding of the court and how the court has dealt with it in subsequent cases would be a long one of the factors as many that a court board likely consider. each situation, however, is considered an 81 variety of different viewpoints and arguments, but most importantly factors the court applies to the question of should precedent be altered in a way. >> well, wouldn't 38 cases lend a little extra support to the impact of roe and casey where a court could have overruled? >> and pc itself -- >> just a little impact? >> kc-x of applied or by opinion

offered by justice souter, talked about the factors that the court thinks about and whether to change precedent. and among them were issues of whether or not or how much reliance society has placed in the prior precedent, what are the costs that would be occasioned by changing it? was the rule workable or not? have the -- either factor or doctrinal basis of the prior precedent altered either from developments in related areas of law or not to counsel a re-examination of the question eight >> i'm going to move on. go ahead. >> and the court has considered in other cases the number of times the issue has arisen and what actions the court has or not taken with respect to that. roe -- pc did reaffirm the cord

holding out the roe and so my understanding would be the issue would be addressed in light of casey on the stare decisis today. >> do i hear you saying it will be at least a little bit of that story? let me move on. let me move on to another separation of powers argument, and that is between congress and the court. in 1997 in the case called boerne, suddenly the supreme court of the united states found a new test called congruence and proportionality. up to that time, judge karlan's judgment on a rational basis for what congress would decide would be sufficient and here for the benefit of our television audience, we are talking about a record that the congress maintains we are taking the

americans for disabilities act for example where there was a task force of a field of hearings every state attended by more than 30,000 people, including thousands who experienced discrimination with roughly 300 examples of discrimination by state governments. notwithstanding the fact vast record, the supreme court of the united states in alabama v. garrett found title ii what the americans with disabilities act unconstitutional. justice scalia in dissent said that it was a, quote, flabby test, that it was, quote, an invitation to judicial arbitrariness and policy driven decision making. the other, title i of the americans with disabilities act

in lane v. tennessee the court found unconstitutional on the same record pity in the second round if we have time i will ask you, give you some advance notice of the white wrote you about these cases -- if you can find the distinction on the supreme court's determination. but my question to you is looking at this brand new standard of proportionality and congruence, for whatever those words mean -- and if we have time in the second round lie will ask you to define than -- do you agree with justice scalia that it's a flabby test and that, with having such a vague standard, the court can do anything it wants and really engages in policy driven decision making, which means the court, in effect, legislates? >> senator, the question of

whether i agree with a view of a particular justice or not is not something i can -- i can say in terms of the next case. in the next case that the court will look at and a challenge to a particular congressional statute -- >> well, not the next case, this case, you have these two cases they have the same facts will record and the supreme court in affect legislates, tells us what is right and what is wrong the standard that nobody can understand. >> as i understand the conference and proportionality test, it is the supreme court's holding on that test, as i understand it, that there is an obligation on the court to ensure that congress is working

-- working -- is legislating with its legislative powers. the issue is not -- and these are section 5 cases, essentially -- which are the clauses of the constitution under the 14th amendment that permits congress to legislate on issues involving violations of the 14th amendment. the court in those cases has not said that congress can't legislate. what it has looked at is the form of ramadi koln chris can order and what -- >> but it doesn't tell us how to legislate. let -- let -- let me move on to the voting rights act and just pose the case. and i will ask you about it in the next round. when chief justice roberts testified in his confirmation hearings, he was very differential to the congress, not so, i might add, when he decided the voting rights case.

but when he appeared here three years ago, he said this. and it's worth -- worth reading. i appreciate very much the differences in institutional competence between the judiciary and the congress when it comes to basic questions of fact finding, development of a record, and also the authority to make the policy decisions about how to act on the basis of a particular record. it's now just disagreement over a record. it's a question of whose job it is to make a determination based on their record. as a judge, you may have a beginning to transgress in to the area of making a law is when you are in a position of revaluating legislative findings because that doesn't look like a judicial function. well, that's about as differential as you can be when

your a nominee. but when chief justice roberts presided over the voting rights case, he sounded very, very different. my question to you is do you agree with what chief justice roberts said when he was just judge roberts, that it's an area of making laws to a transgress into what congress has done by way of finding the facts. >> i would find it difficult to agree with someone else's words. i can tell you how much my understand the difference that congress is owed. and i can point to you at least two cases, and there are many more that shows how much i value the fact that we are the courts that must give deference to congress in the fields that are within its constitutional power.

>> well, do you agree with chief justice robert? i sent you that quotation a long time ago and told you i would ask about it. do you agree with him or not? >> i agree to the extent that one is talking about the difference that congress is owed. i can't speak for what he intended to say by that. i can speak -- >> well, not what he intended to say but what he did say. >> i herd what he said, sir, but i don't know what he intended in that description. i do know what i can say, which is that i do understand the importance to congress's the actual findings, that my case and my approach in my cases reflect that. i've had any number of cases were the questions was difference to congressional findings, and i have upheld statutes because of that difference. >> is their anything the senate or congress can do if a nominee says one thing and does something exactly the opposite?

>> once they walk across the street? >> bet in fact is one of the duties of our constitutional system which is -- >> duty in the eyes of the beholder. it's only constitutional -- constitutionality there. [laughter] >> well the only advantage you have in my case is that i have a 17 year record that i think demonstrates how i approach the wall and the speed with which -- or the -- i give to other branches of government. >> i think your record is exemplary, judge sotomayor, xm party. i'm not commenting about your answers, but your record is exemplary. [laughter] let me -- and you will be judged by more on your record in on your answers, judge sotomayor.

[laughter] your preparation is very careful. they call them murder boards at the white house. i don't know what you did and i'm not asking. we've had a lot of commentary, and you've studied the questions and you studied the record and your qualifications as a witness is terrific in accordance with the precedents. you're following the president's very closely. let me move to television and the courts. and it's a question that many of us are interested in. i always ask it. i introduced legislation twice, out of committee twice -- to require the court to televise. the court doesn't have to listen to congress. the court can say separate powers precludes our seeing anything. but the congress does have administrative, procedural jurisdiction.

we decide the court convenes the first monday in october. we decide there are nine justices and we try to make it 15. six justices to the core, etc., speedy trial act telling the courts how they have to move a certain speed, habeas corpus on time limits. justice stevens has said that it is worth a try. justice ginsburg at one time said that if it was gavel-to-gavel it would be fine. justice kennedy said it was inevitable. the record the justices appearing on television next extensive. chief justice roberts and justice stevens were on prime time abc, justice ginsburg on cbs, justice breyer on fox news, and so forth down the line.

we all know that the senate and the house are televised, and we all know the tremendous, tremendous interest in your nominating process. and it happens all the time. there's a lot of public interest. but the court is the least accountable. in fact you might say the court is on accountable. when bush versus gore was decided then senator biden and i wrote to chief justice rehnquist asking television be permitted and got back a prompt answer, no. that was quite a scene across the screen. television trucks were enormous all over the place. you had to be the chairman of the committee to get a seat inside, inside the chamber. the supreme court decides all the cutting edge questions of the day -- the right of a woman to choose, abortion, the death

penalty, organized crime, every cutting edge question. and bush verses corps was probably the biggest -- was one of the biggest cases, arguably the biggest case. more than 100 million people voted in the election and the presidency was decided by one vote and justice scalia had this to say about irreparable harm. the counting of votes that are of questionable legality does in my view through to an irreparable harm to referring to president bush and to the country by casting a cloud upon which he claims to be the legitimacy of the election permit the court to recede on that is erroneous basis will present an account, and accurate to recount from being conducted on a proper basis leader.

hard to understand what true -- recount there was going to be. i wrote at the time saying i thought it was an dutrow slash -- atrocious accounting of irreparable harm, hard to calculate, hard to calculate that, and my question, judge sotomayor, shouldn't the american people have access to what is happening in the supreme court, to try to understand it, to have access to what the judges do by way of their work load? by way of their activities when they adjourn in june and reconvene in october and here in september? wouldn't it be more appropriate in a democracy to let people take a look inside the court through television? the supreme court said in the

richmond newspapers case decades ago that it wasn't just the accused that had a right to a public trial; it was the press and the public as well. and now it's more than newspapers. television is really paramount. why not televise the court? >> as you know, when there have been options for me to participate in cameras in the courtroom i have. and as i said to you when we met, senator, i will certainly relay those positive experiences if i become fortunate enough to -- to be there to discuss it with. and that question is an important one, obviously. there's legislation being considered both by -- or has been considered by congress at various times. and there's much discussion between the branches on that issue. it is an ongoing dialogue.

it is important to remember that the court, because of the issue, has over time made public the transcripts of its hearings quicker and quicker. if i'm accurate now, it used to take a long time for them to make those transcripts available, and now they do it before the end of the day. it's an ongoing process of discussion. >> thank you, judge sotomayor. thank you, mr. chairman. >> in the last of our -- in this round of questioning will be senator franken, the newest member of the committee. senator, i didn't officially welcome to the other day as i should have when we have new members, but welcome to the committee. i offer you congratulations and condolences at the same time. [laughter] >> i will take the congratulations. >> that was most heartfelt. i'm glad you're here.

please go ahead. >> thank you, mr. chairman and thank you, judge sotomayor for sitting here so patiently and for all of your thoughtful answers throughout the hearing. before launch our senior senator from minnesota, amy klobuchar, asked you why you became a prosecutor, and you mentioned perry mason. i was a big fan of perry mason. i watched peery maysan every week with my dad and my mom and my brother and we watched the clock when we knew there was two minutes to the half hour that the murderer would stand up and confess. it was a great show. and it amazes me that you wanted to become a prosecutor based on the show because, in a perry mason, the prosecutor, burger, lost every week. [laughter]

with one exception to which we will get to later. [laughter] but i think that says something about your determination to defy the odds. and while you're watching perry mason in the south bronx with your mom and your brother, i was watching perry mason in suburban minneapolis with my folks and my brother of the united states supreme court. i think that's pretty cool. [laughter] as i said in my opening statement, i see these proceedings both as a way to take a judgment of you and any nominee suitable for the high court, but also as a way for

americans to learn about the court and its impact on their lives. right now people are getting more and more of their information on the internet. we are getting newspapers and television and blogs and radio. americans are getting all of it on line. it plays a central role in our democracy by allowing anyone with a computer connected to the internet to publish their ideas, their thoughts, their opinions, and reach a worldwide audience of hundreds of millions of people in seconds. this is free speech, and this is essential to our democracy and to democracy. we saw this in iran not long

ago. now, judge, you're familiar with the supreme court's 2005 brand x. decision, are you? >> i am. >> then you know that brand x deregulating internet access services allowing service providers to act as gatekeepers to the internet, even though the internet was originally government-funded and build on the notion of common carriage and openness. in fact, we've already seen examples of these companies blocking access to the web and discriminating on certain uses of the internet. this trend threatens to undermine the greatest engine of free speech and commerce since the printing press. let's say you're living in duluth minnesota, and you only have one internet service provider. it's a big mega corporation, and not only are they the only internet service provider, but they are also a content

provider. they provide -- they owned newspapers. the owned tv networks. de -- or network -- they have a movie studio. they decide to speed up their own content and slowdown other content. the brand x decision by the supreme court allows them to do this. and this isn't just duluth. it's more had minnesota, its rochester, minnesota, its youngstown, ohio. it's denver. it's san francisco. and yes, it's new york. this is frightening. it's frightening to me and to millions of my constituents or lots of my constituents. internet connections use public resources; the public airwaves, the public rights of way.

doesn't the american public have a compelling first amendment interest in ensuring that this can't happen and that the internet stays open and accessible? in other words, that the internet stays the internet? >> many describe the telephone as a revolutionary invention, and it did change our country dramatically. so did television. and its regulation of television and the rules that would apply to it were considered by congress, and those regulations have -- because congress is the policy to search on how items related to interstate commerce and communications operate. and that issue was reviewed by the courts in this context of

the policy choices congress made. there is no question in my mind as a citizen that the internet has revolutionized communications and the united states. and there is no question that access to that is a question that society is -- that our citizens as well as yourself are concerned about. but the role of the court is never to make the policy. it is to wait until congress acts and then determine what congress has done and its constitutionality in light of that ruling. brand x, as i understood, was a

question of which government agency would regulate those providers. and the course, looking at the congress's legislation in these two areas, and determined that it thought it fit in one box not the other, one agency instead of another. >> is this title one and title ii? or as i understand, title ii is subject to a lot of regulation and title i is sent. >> exactly. but the question wasn't so much stronger regulation or not stronger regulation. it was which set of regulations given congress' choice controlled. obviously, congress may think that the regulations the court has, in its holding interpreting conquer's intent, that congress thinks the court got to wrong.

we are talking about statutory interpretation and koln chris's ability to alter the court's understanding by amending the statute it chooses. this is not to say that awfully minimize the concerns expressed. access to internet, given its importance in everything today -- most businesses depend on it, most individuals find their information. the children in my life virtually live on it now. and so its importance implicates a lot of different questions. freedom of speech, freedom with respect to property rights, government regulation. there's just so many issues that get implicated by the internet

that with the court can do is not choose the policy. to go by interpreting each statute and try to figure out what congress intends. >> by understand that that isn't very compelling first amendment right for people? no matter what congress does, and i would urge my colleagues to take this up and write the legislation that i would like. but isn't there a compelling, overriding first amendment right here for americans to have access to the internet? >> rights by a court are not looked at as overriding in the sense that i think a citizen and not -- a citizen but think about it. should this go first or should a competing right go second? rights are rights and with the court looks at is how conagra's balanced those rights in a

particular situation and then judges whether that balance is within constitutional boundaries calling one more compelling than the other suggests that there's sort of, you know, property interests are less important than first amendment interests. that's not the comparison a court makes. the comparison a court makes starts with what balance did con chris choose first? and then we will get that and see if its constitutional. >> so we've got work to do on this. i want to get into judicial activism. i brought this up in my opening statement. as i see it, there's kind of fan and paul fer impoverishment of political discourse when it comes to the judiciary. i'm talking in politics when candidates or office holders talk about what kind of judge they want it's very often just

reduced to i don't want an activist judge. i don't want a judge that's going to legislate. that is sort of eight. a 32nd sound bite. as i and a couple of their senators mentioned during our opening statements judicial activism has become a code word for judges that you just don't agree with. judge, what is your definition of judicial activism? >> it's not a term mauney use. i don't use the term because i don't describe the work judges do in that way. i assume the good faith of judges and in their approach to the law, which is each one of us is attempting to interpret the law according to principles of statutory construction and other guiding legal principles.

and to come in good faith to an outcome that we believe is directed by law. when i say we believe, hopefully we all go through the process of reasoning it out and coming to a conclusion in accordance with the principles of law. i think you're right that one of the problems with this process is that people think of activism has the wrong conclusion in light of policy. but hopefully the judges -- and i know i don't approach judging in this way at all -- are not opposing policy traces in their views of the world or fair view of how things should be done. that would be judicial activism and in my sense if a judge was doing something improper like that.

but i don't use that word because that's something different than what i consider to be the process of judging, which is each judge coming to each situation trying to figure out what the law means. applying it to the particular fact before that judge. >> okay, you don't use that -- that word or that phrase. but in political discourse about the role of the judiciary, that's almost the only phrase that's ever used. and i think that there has been an ominous increase in what i consider judicial activism of lead, and i want to ask you about a few cases and see if you can shed some light on this for us and the people watching at home in the office. i want to talk about northwest austin utility district number one, the holder of the recent

voting rights act case and senator cardin mentioned it, but he didn't get out his pocket constitutional as i am. the 15th amendment was passed after the civil war. is specifically gave congress the authority to pass a law to protect all citizens right to vote and is said section 1 amendment number 15. the right of citizens of the united states to vote shall not be denied or abridged by the united states or by any state on account of race, color or previous condition of servitude. section two, this one's important, the congress shall have power to enforce this article by appropriate legislation -- the congress. well, congress used that power vested in them under section 2 when it passed the voting rights act of 1965. now the voting rights act is an especially strong provision.

section five, that requires states with a history of discrimination to get pre-approval from the justice department on any changes that day make in their voting regulations. congress has real authorized this four times as recently as last time was 2006. and the senate supported by a vote of 98 to zero. every single senator from the state covered by section v voted to reauthorize. so now it is 20 online and we have this case northwest austin utility district number one. and justice thomas votes to hold section 5 on constitutional. he said it went beyond the mandate of the 15th amendment because it wasn't necessary anymore. that's what he said. now, when i read the 15th amendment, it doesn't say -- it doesn't contain any limits on congress's power. it just says that we have it. it doesn't say if necessary the

congress shall have power to enforce this article. it just says that we have the power. so it is my understanding that the 15th amendment contains a very strong, very explicit and unambiguous grant of power to the congress and because of that, the courts should pay greater deference to it. and my question is is that your view the? >> as you know, some of the justices in that recent decision expressed the view a court should take up the constitutionality of the voting rights act and review its continuing necessity. justice thomas expressed his view. that very question given the decision and the fact that it left that issue open is a very

clear indication that that is a question that the courts are going to be addressing if not immediately the supreme court certainly the lower courts and so expressing a view to agreeing with one person in that decision or another which is just i have made a prejudgment on this question -- >> so that means you're not going to tell us? [laughter] i didn't mean to finish your sentence. >> all i can see to you is i have one decision on many but one of the voting rights act, and not their recent reauthorization by congress, but a prior amendment, where i suggested that these issues needed issues of changes in the voting rights act should be left to congress in the first

instance. my jurisprudence shows the degree to which i give deference to colin chris's findings whether in a particular situation that compels or doesn't or leads to a particular result is not something i can opine on because particularly the issue your addressing right now is likely to be considered by the courts. the aba rule says no judge should make comments on the merits of any pending or in a pending case, and this clearly would be an impending case. >> it's fair to say in your own decision you gave deference to congress just like mine at neutrality thing saying it's up to congress. it feels like this is very explicitly up to congress. >> i gave a speech to the language congress had used in

the voting rights act and how it applied to a challenge in that case. >> okay. now, voting to overturn federal legislation to me seems to be one definition of what people understand as judicial activism. but i want to talk about some cases that i have seen that i think show judicial activism functioning on a more precious level. first let's take a look at caisse called gross v. fbl financial services the court issued last month. are you familiar? >> i am. >> gross involved in age discrimination act or a dea, before gross, you could bring up an age discrimination suit whenever you could show that age was one of the factors and employer considered in choosing to fire you. when the supreme court agreed to hear the case it said it would consider just one question, whether you needed direct

evidence of age discrimination to bring this kind of lawsuit or rather indirect evidence would suffice. that's the issue, they said they would consider when they took the case. but when the supreme court handed down its decision it ruled on a much larger matter colin tell whether a worker could bring a suit under a dea if age was only one of several reasons for being fired. the supreme court barred fees six saying that only suits alleging that age was the determinant factor for the firing, only those could be brought under the adea. this change has significantly eroded workers' rights when making it much harder for workers to defend themselves from age discrimination including any firing just before they would have seen a large increase in their pensions. you weren't fired because you were told, you are fired because your pension is planned to increase soon.

so this is a big deal. when you go to court to defend your right, you have to know what rights you are defending. the parties in the gross the case felt they were talking about what kind of evidence was necessary and discrimination suit, then the court just said no, we are banning the that kind of suit altogether. i think that's on a fair to everyone involved. it's especially on fair to the man who's trying to bring the discrimination suit. so let me ask you a couple questions on this. first, as an appellate court judge, how often have to decide a case on an argument or a question that the parties have not briefed? >> i don't think i have because to the extent that the parties have not raised an issue, and the circuit court, for some reason, the panel has thought that it was pertinent most often

that happens on questions of jurisdiction, can the court here this case at all? then you issue, or we have issued, a direction to the parties to brief that question. so it is briefed in part of the argument raised. there are issues that the party's brief, that the briefing itself raises the issue for the court to consider its generally the practice, at least on the second circuit, is to give a party an opportunity to be heard on a question. and we also have a procedure on the circuit that would give a party to be heard that they can also filed the petition for a hearing, which is the panel enters a decision that the party disagrees with and thinks the court has not given it an adequate opportunity to present its argument.

then it can file that at the circuit. i don't have -- i am familiar with the northwest case. i am familiar with the holding of that case. i'm a little less familiar and didn't pay as much attention -- to the briefing issue. i do know that like brand x case, says it was attempting to do is to discern what koln chris's intent was under the adea whether it intended to consider mixed motive or not as a factor in applying the statute and the majority as i and understood it was, look, congress amended title vii to set forth the mixed motive to

frame work and directed the courts to apply that framework in the future, but having amended that, it didn't supply that amendment to the age discrimination statute. and so that blood and up in a similar situation to the brand x case, which is to the extent that congress determines that it does want mixed motive to be a part of that analysis, that it but have the opportunity and it does have the opportunity to do what it did in title vii, which is to amend the act. .. because they had to. they were forced to, right? congress was compelled to in a sense. but not on the aeda. >> i don't like characterizing the reasons for why congress

acts or -- >> okay, okay. let me jump ahead to something. yesterday a member of this committee asked you a few times whether the word abortion appears in the constitution. >> and you agreed that no, the word abortion is not in the constitution. are the words birth control in the constitution? >> no,sir. >> are you sure? >> yes, sir. >> are the words privacy in >> the word privacy is not. >> okay. senators kohl, feinstein and cardin all raised the issue of privacy but i want to hit this on the head. do you believe that the constitution contains a fundamental right to privacy? >> it contains as has been recognized by the courts for over 90 years, certain rights under the liberty provision of the due process close that

extends to the right to privacy in certain situations. this line of cases started with a recognition that parents have a right to direct the education of their children and that the state could not force parents to send their children to public schools or to bar their children from being educated in a blaze at a state found objectionable. obviously, states to regulate the content of education, at least in terms of requiring certain things with respect to education that i don't think the supreme court has considered, but the basic right to privacy has been recognized and was recognized. and, there have been other decisions. >> so, the issue of whether a word actually appears in the constitution is not really relevant, is it?

>> certainly, there are some very specific words in the constitution that have to be given direct application. there are some direct demands by the constitution. you know, senators have to be a certain age to be a senator. so, you have got to do what those words say but the constitution is written in broad terms. and what a court does that does look at how those terms apply to a particular factual setting before it. >> okay. in roe v. wade, the supreme court found a fundamental right to privacy included the right to decide whether or not to have an abortion. and, as senator specter said, that has been upheld or ruled on many times. do you believe that this right to privacy includes the right to have an abortion? >> the court has said in many cases, and as i think has been

repeated in court's jurisprudence in casey, that there is a right to privacy that women have with respect to the termination of their pregnancies in certain situations. >> okay. we are going to have round two, so i will ask you some more questions there. what was the one case in perry mason, the burger one? >> i which i remembered the name of the episode, but they don't. i was always struck there was only one case where his client was actually guilty. >> and you don't remember that case. >> i know that i should remember the case but i don't remember the episode. >> didn't the white house prepare you for that? [laughter] >> you are right but i was

spending a lot of time on reviewing cases. but, i do have that stark memory because like you i watched it all the time, every week as well. i just could not interest my mother then there's and my brother the doctor to do it with me. >> our whole family watched it, and because there was no internet at the time you and i watching at the same time, and i thank you and i guess i will talk to you in a follow-up. >> thank you. >> is the senator from minnesota going to tell us what the episode that was? >> i don't know. that is why i was asking. if i knew, i wouldn't have faster. [laughter] >> alright. so, because of that, judge we will not hold your inability to answer the question against you. [laughter] now, on one of the-- i just

discussed this with senator sessions, but i will make the formal request, is there any objection for the committee now proceeding to a closed session, which is a routine practice we follow for every nominees since back when senator biden was the chairman of this committee? >> mr. chairman, thank you. i think that's the right thing to do and there'll be no objection that i know of. >> thank you very much. i appreciate the comments. so, hearing none the committee will proceed to a closed session and we will resume public hearings later this afternoon. and, for the sake of those who have to handle all the electronic kinds of things, we will try to give you enough of a heads up. we will stand in recess. [inaudible conversations]

[inaudible conversations] >> today's confirmation hearing for supreme court nominee, judge sotomayor included questions from republican senator, charles grassley. he is next. the third day will re-air in its entirety in a little less than an hour. before that we will discuss the sotomayor nomination with wade henderson, head of the leadership conference on civil rights. >> now, i believe i am going to ask you something you have never been asked before during this hearing, i hope. i would like to be original on something. i want to say to you that there

is a supreme court decision called baker versus nelson, 1972. it says the federal courts lacked jurisdiction to hear due process and equal protection challenges to state marriage was "for one of substantial federal question which obviously is an issue the courts deal with quite regularly. i mean, the issue of whether it is a federal question or not a federal question, so do you agree that marriage is a question reserve for the states to decide based on baker versus nelson? >> that also is a question that is the impending in many courts. as you know, the issue of marriage and what constitutes it is the subject of much public

discussion, and there is a number of cases in state courts addressing the issue of who regulates it, under what terms. >> can i please interrupt you? i thought i was asking a very simply-- simple question based upon a precedent that baker versus nelson is, based on the proposition that yesterday in so many cases, whether it was griswold, the weather was roe v. wade, whether was chevron or a whole bunch of other cases he made reference to, the casey case, the gonzalez case, the league in creative leather products case, the kelo case, he made that case to me. you said these are precedent. are you saying to me that baker versus nelson is not a president? >> no sir. i just haven't reviewed baker in

a while. and so, i actually don't know what the status is. it if it is the court precedent, as i have indicated and all of my answers, i will apply that precedent to the facts of any new situation that implicates it. what was the first question? >> tell me, what sort of a process, if you might go through, if a marriage case came to the supreme court, whether baker versus nelson is president or not because it i assume if it is president, based on everything you told us yesterday, you are going to follow it. >> the question on a marriages issue will be two sides will come in. one will say baker applies. another will say this court precedent applies to this factual situation, whatever the factual situation as before the court. they will argue about what the meaning of that precedent is, how it applies to the regulation

that is at issue, and then the court will look at whatever it is that the state has done, what law it has passed on this issue of marriage and decide, okay, which president controls this outcome? it is not that i am attempting not to answer your question, senator grassley. i am trying to explain the process that would be used. in this question of how and what is constitutional or not or how a couric will approach a case and what precedent to apply to it is going to depend on what is the issue before the court? could these they do what it did? >> can i interrupt you again? following what you said yesterday, that certain things are precedent, i assume you with answered a lot of questions before this committee about even after dew said that certain

things are president, of things that are going to come before the court down the road, if you are on the supreme court. you didn't seem to compromise or hedge on those things being president. why are you hedging on this? >> i am not on this, the holding of baker versus nelson, as it is holding. as a holding it would control any similar issue that came up. it has been a while since i looked at that case so i can't, as i could with some of the more recent precedent of the court or the more core holdings of the court on a variety of different issues, answer exactly what the holding was and what the situation that it applied to. i would be happy, senator, as a follow-up to a written letter or to give me the opportunity to come back tomorrow and just address that issue. i have to look at baker again. >> i would appreciate it.

>> it has been too long since i have looked at it. it may have been as far back as law school. >> oh, you were probably-- >> 30 years. >> probably in grade school you work, at that time. >> i want to go on but i would like to have you do that. but i would like to suggest you answer me further after you studied it. i have a question the kind of relates to the first question. in 1966 congress passed and president clinton signed into law the defense of marriage act, which defined marriage for the purpose of federal law as between one man and woman. it also prevents the state of territory from giving effect to another state that recognized the same sex marriages. one is the wilson case and one is the bishop case. we dissed record-- yes, district court. do you agree with federal courts, which have held that the

defense of marriage act does not violate the full faith and credit clause and is an appropriate exercise of congress's power to regulate conflicts between the laws of a different state? >> that is very similar to the austin situation, but the aba rules would not permit me to comment on the merits of the case that is pending or am pending before the supreme court. the supreme court has not addressed to the constitutionality of that statute and to the extent that lower courts have addressed it and maid holdings, it is an impending case that could come before the supreme court. so, i can't comment on the merits of that case. >> have you ever make any rulings on the full faith and credit clause?

>> i may have, but if your specific question is have i done it with respect to a marriage related issue, no. >> one any thing on the full faith and credit clause? >> i actually have no memory of doing so. >> that is okay. no, you can stop there. now i am going to go to a place where senator had left off but i am not going to repeat any of the questions that he asked, but there is one that i want to ask and i feel a little bit guilty of this. my dad used to have a saying to us kids that we are harping on something. he says, when are you going to quit beating a dead horse? but, i want to ask you anyway. you also wrote, "i wonder whether achieving that goal is possible in all or even in most cases. and i wonder whether my-- by

ignoring our differences as women and men of color, we do a disservice both to the law and to society less ." so, the concern i have about this statement is it is indicating that you believe judges should and must take into account and gender, ethnic background, or other personal preferences in their decision-making process. is that what he meant? and i want to follow it up so i don't have to ask two questions. al is being impartial a disservice to the law and society? isn't just the supposed to be blind? >> no, i do not believe that judges should use their personal feelings, beliefs orville use systems, or to influence their outcomes and neither do i believe that they should consider the gender, race or

ethnicity of any group that is before them. i absolutely do not believe that. with respect to, yes, is the goal of justice to be impartial? that is the central role of a judge. the judge is the impartial decision-maker between parties who come before them. my speech was on something else, but i have no quarrel with the basic principles that you have asked me to recognize. no coral sounds equivocal. i do believe in those things, absolutely, and that is what i have proven i do as a judge. >> and the last one on this point of another remark he made. you also stated that you "further accept that our

experiences that swim in and people of color affect our decisions let's go then den further quote, personal experiences affect the facts that judges choose to see and that further quote, there will be some differences in my judging, the differences in judging in parentheses, based on my gender and latina heritage. do you believe it is ever appropriate for judges to allow their own identity, politics to influence their judging? >> no sir, absolutely not. >> then i want to move onto another area. this question comes from your 1992 senate questionnaire. you wrote in response to a question about judicial activism that quote, intrusions by a judge upon the functions of other branches of government should only be done as a last

resort, and limited. it is this still your position, and let me follow up, when it would such an intrusion be justified? for example, what is an example of last resort? what is an example of limited, of limited? >> the answer is, judges and the manner in which that question was responded to, was to the extent that there has been a violation of the constitution and whatever manner of court identifies in a particular case, it has to try to remedy that situation in the most narrow way in order not to intrude on the functions of other branches or actors in the process. the case that i was discussed in

my history has been the case in which i joined the panel decision, where the district court had invalidated a statute found unconstitutional, a statute that the legislature had passed on national security letters. our panel review that situation, and attempted to discern in did discern congress's intent, that despite an isolated provision that might have to be narrowly construed to survived constitutional review, it held that the other provisions of the act were constitutional so the vast majority to what the district court did, and i have not suggesting it was intending

to violate what i am describing, but the court took a different view than the circuit did. we upheld the statute in large measure to the extent that we thought there were and found that there were two provisions that were unconstitutional. we narrowly construed them in order to assist in effecting congress' intent. that is what i talked about limited glee in that answer. >> a little bit along the same line. in your law review articles he wrote that quote, our society would be straightjacketed or not the courts, with the able assistance of the lawyers constantly overhauling and i don't know whether that is your emphasis or mine, but i have got it underlined. overhauling the law and-- maybe i had better start over again. our society would be straight jacketed were it not, were not

the courts with the able assistance of the lawyers constantly overhauling the law and adapting it to the realities of the ever-changing social, industrial and political changes. explanation of the statement from you. i think you are saying that judges can twist to the law regardless of what the legislature, the elected branch of government has enacted into law, is kind of my interpretation of that. obviously i think you tell me you don't mean that but these chino where i am coming from. >> no, that interpretation was clearly not my intent. i don't actually remember those particular words but i do remember the speech. i am assuming you are talking about returning majesty to the law. dare i was talking about a broader set of questions, which was how to bring the public's respect back to the function of

judges, and i was talking about the judges that lawyers have an obligation to explain to the public the reasons why what seems unpredictable in the law has reasons, and i mentioned in that speech that one of the big reasons is that congress makes new laws. that was the very first reason i discussed, and also that there is new technology, there is new developments in society, and what lawyers do is come in and talk to you about, okay, we have got these laws, how you apply them to this new situation? and what judges do, and that is why i was talking about the assistance of judges-- of lawyers, is what you do is look at the court's precedence, you look at what they statute says and try to understand the principles that are in issue and

apply them to what the society is doing. and that was the focus of my speech, which was talked to the public about the process. don't feed into their cynicism that judges are active as, that judges are making law. working at explaining to the public what the process is. i also talked to part of my speech is what the judges can do to help improve respect of the public and the legal process. >> so, the use of the word over hall does not-- overhauled the law, it does not in any way imply usurpation of legislative power by the courts? >> no, and if you look at what i was talking about, it was the society develops. we are not today what we were

100 years ago in terms of technology, medicine, so many different areas. there are new situations that arise and the courts look at. you apply the law to those situations that that is the process of judging, which is sort of trying to figure out what does the law say about a set of facts that may not have been imagined at a time of the founding of the constitution, but it is what the judge is facing then. how you apply it to that? >> i want to go back to didden based on my opportunity to reflect on some things that you said yesterday. the time limit to file a case in didion was three years. mr. didden was approached for what he classified as extortion in november, 2003. two months later in january 2004 he filed his lawsuit. but, under your ruling, mr. didden was required to file

this lawsuit in july, 2002, close to a year and a half before he was actually exported. so, that doesn't make sense, to require someone to file a lawsuit on a perceived chance that an order might occur. you also testified that the supreme court's kelo decision was not relevant to the didden holding, but your opinion in cursory fashion, which is a problem that we have addressed yesterday, states that if there was no statute of limitation issue, kelo would have permitted mr. dayton's property to be taken. it is hard to believe that an individual's property can be seized when he refuses to be exported without any constitutional violations taking place. it is even harder to believe that under these circumstances mr. didden, mr. didden did not deserve his day in court or at

least some additional legal analysis. could you please explain how mr. didden could have filed his lawsuit july 2002 before he was exported in november 2003? and also, please explain why a july 2002 filing would not have been dismissed because there was no proof that mr. didden had suffered an injury, only an allegation that he might be injured in the future. >> the basis of mr. dayton's lawsuit was, the state can't take my property and give it to a private developer, and because that is not consistent with the takings clause of the constitution. to the extent he knew the state, and there is no dispute about this, that the state had found a public use for his property, that it had a public purpose, that it had an agreement with

the private developer to let that developer take the property, he knew that he was injured. it was his basic argument, the state can't do this. it can't take my property and give it to a private developer. the supreme court in kelo addressed that question and said, under certain circumstances, the state can do that if it is for a public use and for a public purpose. and so, his lawsuit essentially addressing that question, came five years after he knew what the state was doing. the issue of extortion was a question of whether the private developer in settling in a lawsuit with them, was engaging in extortion and extortion is an unlawful asking of money with no basis. but, the private developer had a

basis. he had an agreement with the state, and so that is a different issue than the timeliness of mr. didion's complaint. >> coverage of the confirmation hearings for supreme court justice nominee judge sonia sotomayor continues on c-span3. c-span radio and on the web at c-span.org. you can also watch every ear of the proceedings weeknights on c-span2 and on the weekend on c-span. tomorrow morning the first half-hour of the hearing will be simulcast on c-span treen c-span beginning at 9:30 eastern. >> you are watching public affairs programming on c-span2 pick up created by america's cable tv companies, offered is a public service. the third day of the confirmation hearings for supreme court nominee judge sonia sotomayor will air in its entirety and a half hour. before that it look at her nomination with wade henderson,

head of the leadership conference on civil rights. >> i gave a very-- variant of my speech to a variety of different groups. most often to groups of women lawyers or to groups most particularly, of young latino lawyers and students. asthma i speech made clear in one of my quotes that you reference, i was trying to inspire them to believe that their life experiences with enrich the legal system, because different life experiences and backgrounds all these two. i don't think that there is a quarrel with that in our society. i was also trying to inspire them to believe that they could become anything they wanted to become, just as the head. the context of the words that i spoke have created a

misunderstanding and i want the misunderstanding and to give everyone assurances, i want to state up front, unequivocally and without doubt, i do not believe that any ethnic, racial or gender group has an advantage in sound judgment. >> host: we are joined by the president and ceo of the conference on civil rights who is scheduled to testify in support of the-- mr. henderson white do you support her? >> good morning to c-span. let me start with one quick observation because as you know i do support the judge's confirmation. the american people are witnesses and something very special. this is about the majesty of american government. we are looking at a process that was designed by the founders to help perpetuate american democracy in the best way. the president nominated and extraordinarily well qualified

individual to be the next associate justice on the supreme court and our senate is that engaging in its advice and consent process and you are seeing the dignity, the solemnity of the process that really serves the american people's interests and you were looking at an individual who is extraordinarily well qualified for the job, with the academic record and background that speaks eloquently about the power of hard work in what it means to achieve. you are looking at an individual who has more experience as a judge, both on the federal court in the court of appeals as well as having worked as the district attorney and one of the repronounce district attorneys in a darkened that is robert morgenthau. this is a person with extraordinary qualifications almost unmatched by any current sitting justice. lastly you are looking at an individual whose personal story embodies the american dream. this is a woman from humble beginnings, good demonstrated that with hard work you can achieve and can be recognized.

academic performance at princeton and yale law school speaks volumes about what she was able to do. her public service center commitment to the rule of law i think has been demonstrated so well during the last two days that i am proud we support your. one last point, what you are seeing over the past two days, both with the statements of the senate, members of the committee but also yesterday with her response to questions, is an individual with a superb command of what it means to be a lawyer and a judge. someone who understands the importance of the constitution, someone who has a temperament that is extremely well-suited for the job ahead. and someone who brings a level of quality and understanding to our work and i think it makes it extremely well qualified to be the next associate justice of our supreme court. >> host: why we selected to speak on her behalf and what are you going to tell the committee this week? >> guest: i am privileged to head an organization known as

the leadership conference on civil rights which is the nation's premier human rights coalition. we have over 200 national organizations that work to advance civil and human rights in our country and our model is that we are trying to make an america that is as good as its ideals and what that means is we believe in the constitution and the rule of law and we believe that it applies to everyone here in the united states and we want to make that a reality. i was asked i think to speak to both her qualifications but more importantly white the broad civil and human rights community would support judge sotomayor to be an associate justice on the supreme court and because i have a coalition of organizations, a coalition of groups working to advance yeatman rights i was chosen i think to represent that sector of our public interest community. i am very honored to do that because the organizations are on the front lines of progressive social change in our country and i am very pleased to be its

president. >> host: i wanted to get your reaction, there was a series of tough republican questioning on the herring a we have a clip from south carolina senator lindsay graham in his exchange from sotomayor. let's take a look at that and get your reaction. >> 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, there are plenty of statements in the record in support of u.s. a person that do not go down this line, but i would just suggest to you for what it is worth judge as you go forward here, that these statements about you are striking.

they are not about your colleagues. the ten minute rule applies to everybody, and obviously you have accomplished a lot in life, but maybe these hearings are time for self reflection. this is pretty tough stuff. >> guest: well, you know, i have a great respect for senator graham. obviously he is a long serving member of the judiciary committee. he has a responsibility to probe deeply into the believes in the philosophy of any judge or judicial nominee who comes before him. i thought his question was direct but it was also respectful and i think it is totally appropriate. i think the judge's response i thought was a reflection of the values that she brings to the table. she was judicious in her response, she was temperate in her response. she talked about you know what her relationship is with the judges who serve with her. i point out, she is in a unique position because i think as the

first hispanic women, hispanic american to be nominated to the court but also with the long serving judge, she has faced many challenges i am sure. i know that it has been difficult for many women to a dance in the block because of the existing structure and stereotypes that often affects them so someone who is occasionally blunt and direct with her colleagues, someone who challenges intellectually the issues that are on the table can sometimes i suspect be seen as rude and imprudent in their comment, but i think the judge threw out her career has demonstrated a commitment to stability, a commitment to the rule of law and an ability to apply the law to the fact that hand and that is what makes her i think it's superb judge and that is what will make her a superb associate justice. >> host: let's take our first call from james on the democratic line from atlanta. james, are you there? >> caller: yes.

>> host: do you have a question? >> caller: yes, first of all, i would just like to make this point and then i would like to hear your response. okay, people in the united states, they look at things like race has nothing to do with it but the republicans nominated clarence thomas. clarence thomas does not represent the interests of black people period. he does not represent the interests of those people. we as blacks, we need a representative on the supreme court to speak out. i have no problem with judge sonia sotomayor of being nominated, but we also feel like the next nomination should be a black person, but a man that represents the interests of the black community. she is speaking up for that. that is what she is supposed to do. she is supposed to do that. just like the 110th for hers

spoke up and kept all of these things in place in the united states. the final thing i would like to say-- he was not on the judiciary committee because of his race. you could see it coming out in his questioning and what he was leading up to. i would like to hang up and get you to respond to why he was denied in his past and alabama and all of the ones who oppose her are southern, white, caucasian males. >> guest: thank you james for your question. let me answer the first part of your question, which really talks about the importance of diversity on the supreme court. you know, i think we can all celebrate as americans the evolution of american democracy. we know that when the republic was founded in 1787 we were not the perfect union that we strive to be today. we have had a civil war, we have had a struggle involving racial

discrimination but we have made progress as a nation and it is because of our commitment to fundamental values under the constitution and the hard work of the american people. certainly african-americans and latinos but also white americans committed to a fair play for all. so, i think what we celebrate with this nomination is really a historic milestone that represents. the first african-american president nominating the first hispanic american member of the supreme court speaks volumes about the evolution of american democracy. one of the things that it says, which i find needs to be underscored, is that excellence in preparation and diversity are not only compatible, they are readily achievable. we have individuals like judge sotomayor as extraordinary as she is, really in all walks of life, so we now have for the first time in our history and ability to integrate the supreme court and its legacy with the voices of other americans who

previously have not been represented. as you say there are 110 people who have been appointed to the supreme court of the the last centuries of our country and yet only, only, only two of them have been women and only three of them or rather to have been members of color. so, people of color, what we are saying is that america is a diverse country, a wonderful country and we are celebrating that diversity in one of the best ways possible. your question about senator sessions. senator sessions is the ranking member of the judiciary committee. d2 has a responsibility to pursue questions regarding the character in the fitness of the nominee who comes before him. i don't think his questions are out of line. certainly he does have the history. i think it's history is well-known. he reported james on his sister and i don't want to introduce that history here other than to say i think he is making an effort to try to keep these

issues on a fairly high plain. i recognize however that questions are bias-- of bias really need to be tempered by the reality of the situation at hand. i think it is in credibly inappropriate and unfair to imply that somehow judge sonia sotomayor has an inherent bias that it's affected her judicial decision-making and that is what some of the questions that he and others have raised will try to imply. i think the reality is when you have a record as extensive as hers, over 17 years in federal decisions in the court, you should look at them, he should make that evaluation and he should stick to the merits. i think that principle applies to senator session and anyone else who would fear across the line in inappropriate ways. let's go from chicago we have steve on the independent line. >> caller: hi there, how are you guys this morning? well, first of all want to tell you how very much i appreciate

mr. henderson. you are in an extremely articulate and wonderful person to listen to. thank you sir, and i just wanted to point out that it looks to me like the sotomayor thing is going to happen the way many of us would like to happen, and i also want to make an observation about president obama having played chess with lindsay graham out there and the just session's out there. he has lured them into a swamp of self defamation. and, they have gone ford, lock, stock and barrel. they have shown themselves to be anti-hispanic and anti-woman, and abbas ali we have been watching them do this. >> guest: steve, thank you so much for your call. >> host: mary on the republican line from michigan? >> caller: no, i am steve. let's go sorry, next colletti on the democratic line from floral

park, new york. leni, are you there? >> caller: i am here. good morning mr. anderson. >> guest: good morning sir. >> caller: my comment is just a comment. my comment is this, it is just a comment. now, everyone that comes before the supreme court basically is qualified. that is not the issue. the thing that the democrats and republicans are not really looking at is that a lifetime appointment is just what it is. you will see that judge sotomayor will follow the law and as many times as you think that she will be voting along liberal lines so to speak, she will be siding with the conservatives and you will see 6-3 many times as much as you will see 5-4.

remember that hugo black, when he was appointed years ago as a former member of the ku klux klan, who then became a liberal. the same thing with judge souter. you have got to remember it is a lifetime appointment and you were dealing with people that are of high intellect and will votes and think along those lines. she will-- with judge scalia. thank you. >> host: what kind of jurist do you think sotomayor will make on the court? >> guest: i think the best evidence of how judge sotomayor will approach the job as a justice is based on the record we have before us. i think if you look at her trial court record, i think if you look at her court of appeals record you see someone who is a real commitment and fidelity to the rule of law, someone who respects president and believes in following the precedence of the courts above her. someone you recognize his principles of settled law, but

someone who also has a fairness and understanding that the facts determine the outcome, but you applies the law to the facts. i think that she is careful. i think that she is extremely scholarly. i think that she is extraordinarily fair and i think if you look at reports that have been prepared that have examined the record before us, the courts like that of the brennan center and in new york, or the legal defense, the naacp defense fund, they all approach this issue as one of an examination of the record and i think the record speaks for itself. i also think, again and this has been pointed out, she is extraordinarily bright and i think that her intellectual capability comes through in her writing so i think you are going to see someone who is featured on the supreme court is reflected in the kinds of responses she gave yesterday to some pretty tough questions.

let's go on the republican line we have george from san diego. >> caller: hello? good morning. >> guest: good morning. >> caller: i am talking to democrats and republicans here in san diego, and they are scared of this woman. they are just scared of her because of for comments. now, come on. the first latino would have been the guy that the democrats filibustered. now, if they turned around and did this to this woman, it is a double standard for these democrats. they are running our country. >> host: george, what cummins are you referring to? >> caller: sotomayor for one of them. there when in the country. they need to call congress and tell them we don't want any of this stuff. >> guest: george, let me respond to what i think was one of the points he breadmaking, which is that judge sotomayor

has been reported to have made this comment in a speech that a wise latina brings the certain better understanding of the issues then someone else might bring to the table and i think she address that question directly yesterday in a number of ways as a result of questions asked by members of the committee. i think she backed away from the statement and saying the following, that look was an awkward moment in an artful freezing. she was trying to make a rhetorical point and it fell flat in she concedes that. the larger question is this, what she is saying is everybody brings part of their cultural background to the table and in examining any work that they do. as the judge she is committed to the rule of law and applying the rule of law and she will not apply in her personal views or her cultural experiences either indirectly or in some way that might influence the outcome in a properly. her comment was really no different than the, the clarence thomas made years ago in his

confirmation, when he said that a judge needed to be able to walk in the shoes of another. it is the different than what justice samuel alito said when he offered-- referred to as emigrant experience. his parents were italian immigrants and also his emigrant beck renslo you see i think to try to make more of judge sotomayor's comment, particularly after her clarifications yesterday would be the unfairness that you refer to george because it would be treating her differently than we have anyone else. as for people who have fears about the judge and how she will be at the justice, again i can only commend this to you. look at the record. the record speaks eloquently of her modest comcare end-strength and i think you examine the decisions that she is put before you you will see a judge who approaches her work with great care in fidelity to the law, and that from my standpoint is what the american people want most. >> host: from pine bluff

arkansas on the independent line. >> caller: hello, the first thing i want to do is think of mr. henderson for bring some sanity to the hearing process. i have respected him for years. i am 62 and have been involved in the naacp. the thing that i would say just as he as said, is a record. the lady has already been confirmed twice but look at her record and listen to what he is saying. i have stayed up at night listening over and over to what she is saying. she is very sound minded and she is very, to say justice oriented and that those comments that she says shows our commitment to applying the law, and i appreciate c-span for giving us this opportunity. >> guest: dorothy, thank you so much for miracle and i expect to hear from you. vezina the naacp is celebrating its centennial this year which

is really remarkable. sonia sotomayor was first appointed as a judge by george herbert walker bush. she was then appointed to the court of appeals by president clinton. she has now been nominated to be an associate justice on the supreme court by president obama, three separate presidents. dorothy, as you point out there is a record for confirmation in both prior and essences of that should provide additional insight, both to senators and to the public about her views. but i think what you are seeing now in response to requests and and what you are likely to hear from the statements of those supporters and perhaps even division created by those who are critics is that this is a woman who is extremely well rounded, respected by lawyers and judges alike, the highest rating of the american bar association in someone whose qualifications are beyond question, so this is what i find it bit disturbing about some of the, not comments this morning

by any means but some of the sidebar comments you hear in judiciary that somehow her qualifications don't really speak as importantly about her ability to do this job as many of us believe. i think that is a double standard because this is a woman with such a remarkable level of achievement, that it really defies comparison. pustka let's go to the on the democratic line from detroit. >> caller: heidi mr. henderson. i am so glad to hear you this morning and thank you c-span for taking my call. some of the recent callers, one in particular, also referenced what i wanted to say, that judge alito when he was going through a confirmation hearing said essentially the same thing, that judge sotomayor said. but, no one asked him many questions about it. it was the-- and how can you

not? how can you not bring to your life experiences with the were black, spanish, italian, whatever the color or-- we bring it all to the table and what they understand, which is good for the country and good for the world is that america and all the good things that it has done is still stuck in the corridor of racism. it can't get past racism. they would rather take this woman through heche and high water, because of her cultural differences, as they would president-- our president. i am getting kind of nervous so please bear with me. we lived in america. sna one forgotten we are supposed to be the land of the free and the home of the brave? we are supposed to treat each

other equally. there is no, there is no standard that says someone else is better than the next person. and i am going to tear off for just a minute. this also comes to me relative to the healthcare reform. these folks do not realize and do not care about all of the folks out here who do not have healthcare insurance, where they have a cadillac of healthcare experience. >> host: on the republican line from st., maryland. >> caller: i have a question. the democrats say she is going to be confirmed, note if's and passmore's. what is the purpose of this hearing other than it is just a political ploy to discredit the republicans because they ask questions and it is terrible and all. it should not matter what color she is.

everybody, if you somebody's finger everybody leaves read. >> guest: you were right. you are very bright about that. let me say that the process we are seeing the forest is a process required by the constitution and that is what i was speaking about earlier. i think this entire experience celebrates the majesty of american democracy in the best way. secondly, i think the thing again judge sotomayor considered to be the first hispanic american to be appointed to the supreme court should not be undervalued. you are absolutely right, people are concerned about being judged fairly and race and ethnicity and national origin and gender in disabilities status and the rest should not be a determinant in factors in deciding who to choose, and they-- here is a woman who as they said qualification speak for themselves but i also think it

is important to recognize that the country as diverse as ours is strengthened by a recognition that when you have people from all aspects of the american political system serving our government, we are better served and we are a stronger nation and i think judge sotomayor springs the kind of values and skills and background that really will add to the tapestry of what makes this country so great. >> host: barred from new orleans. >> caller: this country is so great. what is so great about it, sir? i want to know that. we have got a president that this light to us about every single thing he has campaigned on. we are stiller at war. he pushed this disaster is bailout on us when people were calling 1,000 against one against it, so he does not listen to the people. this program does not allow me the time to list all of the things this president has lied

about. we are still expanding war, the military commission act, the patriot act is still in place. they are still being sign. i could go on and on and on, so why should we, what makes this country so great? >> guest: actually, you have fest the very important question so i'm going to take a stab at it. i corrupt right here in washington d.c., and when i lived for the first 15 years of my life, i lived under a formal system of legal segregation. i can tell you that being denied basic rights of the constitution, it was personally painful for me. i have lived long enough to have seen evolution in american democracy to have participated in the change that by now celebrate and i have seen this place become a more perfect union because of the hard work of the guests, members of the

black community but certainly all communities of conscience who have been concerned about making change so i have seen that happen and i know that growing up in a country that provides opportunity certainly that allows individuals to overcome the circumstance of their birth as the greatness that needs to be celebrated. i also recognize that we are the world's largest representative democracy and while other countries are struggling with trying to manage issues of tension, whether political, racial, ethnic tension we are actually overcoming that tension and i think offer real lessons for the world. now, i am not trying to celebrate in a naïve way. where this country stands and i understand that there are hard, tough issues involving war and the economy and the like. the climate and where we are going as a nation but i also know that have been witness to the election of a president who is committed to these values and

changing the way the world works today is evidence enough for me that this is a great nation and that we have seen chains so i'm quite proud to say that. >> host: we are talking about the nomination of sonia sotomayor. if you have a question you can call the democratic line or the republican line and independent line. let's go to birmingham, alabama. birmingham, are you there? >> caller: i am still here. >> host: do you have a question? >> caller: yes, my question is, i am so sick and tired of all the futzing in fighting going on over the nomination. >> host: why is that? >> caller: my reason is if you look to the previous elections, the democrats did not argue as much as republicans are.

they are just grandstanding as far as i'm concerned. they need to ask more pertinent questions and with the record that she has that stands as far as most of us are concerned, i guess it is not really a question, it is a statement. >> host: i think we are going to have to leave it there. >> live coverage of the confirmation hearings for supreme court justice nominee judge sotomayor continues this week on c-span3. c-span radio and on the web at c-span.org. you can also watch a reader of the proceedings weeknights on c-span2 end on the weekend on c-span. ..

the third day of the confirmation hearing for supreme court nominee, sonia sotomayor included questions on constitutional issues as well as her judicial decisions and speeches. this is six hours. >> good morning, everyone.

judge, it's good to see you back and your family. judge sotomayor, yesterday you answered questions from the 11 senators. frankly i feel you demonstrated your fair and impartial application of the law and certainly demonstrated your composure and patience and extensive legal knowledge. today we will have questioning from the remaining eight members of the committee and then just to the eckert justice of the schedule. once we finish that question and we will arrange time to go into the judicial -- something we do every time of the supreme court nominee -- traditional closed door session, which is usually not very lengthy and then go back to others. i've talked with senter sessions. we will then go to a second

round of questions of no more than 20 minutes each. i've talked with a number of senators who told me the world not used anywhere near that 20 minutes, although every senator has a former member of the texas supreme court, former attorney general and senator cornyn, it's yours. >> thank you mr. chairman. good morning, judge. >> good morning senator. it's good to see you. >> i recall when we met in the office you told me you enjoy the back-and-forth lawyers and judges do, and i appreciate the good humor and attitude that you brought to this and i very much appreciate your -- your willingness to serve on the highest court in the land. and i'm afraid that sometimes in

the past these hearings have gotten so downright nasty and contentious that some people are just dissuaded from willingness to serve, which i think it's a great -- is a great tragedy. and of course some have been filibustered. they have been denied the opportunity to have an up or down vote on the senate floor. i told you when we visited in my office that's not going to happen to you if i have anything to say about it. you will get the of or down vote on the senate floor. but i want to ask your assistance this morning to try to help us reconcile the two pictures that i think have emerged during the course of this hearing. one is of course as senator schumer and others have talked about your lengthy tenure on the federal bench as a trial judge and court of appeals judge. and then there's the other picture that has emerged from your speeches and your other

ridings and i need your help trying to reconcile those two pictures because i think a lot of people have wondered about that. and i guess the reason why it's even more important that we understand how you reconcile some of your other ridings with your judicial experience and tenure as a fact that, of course, now you will not be a lower court judge subject to the appeals to the supreme court. you will be free as a united states supreme court justice to basically do what you want with no court reviewing those decisions, harkening back to the quote we started with during my opening statement about the supreme court being infallible only because its final. so, i want to just start with the comments that you made about the wise latina speech that, by my count, you made at least five

times between 1994 and 2003. you indicated that this was really -- and please correct me if i'm wrong. i'm trying to quote your words, quote, failed rhetorical flourish that fell flat. i believe at another time you said they were, quote, words that don't make sense, and of quote and another time you said, quote, it was a bad idea, and of quote. am i accurately characterizing your thoughts about the use of that phrase that has been talked about so much? >> yes, generally. but the point i was making was that justice o'connor's words, the ones that i was using as a platform to make my point about the value of experience generally in the legal system, was that her words literally and

mine literally made no sense, at least not in the context of what judges do or -- what judges do. i didn't and don't believe that justice o'connor intended to suggest that when two judges disagreed one of them has to be on why is, and if you read her literal words that wise old men and wise old women would come to the same decisions in cases that's what the words would mean that that's clearly not what she meant and if you listen to my words, it would have the same suggestion that only latinos would come to wiser decisions but that wouldn't make sense in the context of my speech either because i pointed out in the speech that eight, nine white men had decided brown versus board of education. and i noted in a separate paragraph of the speech that --

that no one person speaks in the ways of any group. so my rhetorical flourish, just like hers, can't be read literally. it had a different meaning in the context of the entire speech. >> but, judge, she said a wise man and a wise woman would reach the same conclusion. you said that a wise latino woman would reach a better conclusion than a male counterpart. what i'm confused about -- are you standing by that statement or are you saying that it was a bad idea and you -- are you disemboweling that statement? >> it is clear from the attention that my words have gotten and the manner in which ed has been understood by some people that might words failed. they didn't work.

the message of the entire speech attempted to deliver, however, remains the message i think justice o'connor meant. the message of nominees including justice alito meant when he said his italian ancestry -- he considers when he's deciding discrimination cases. i don't think he meant -- i don't think justice o'connor meant that personal experiences compel results in any way. i think life experiences generally, whether it's that i'm a latina or was a state prosecutor or have been a commercial litigator or have been a trial judge and an appellate judge, but the mixture of all those things, the amalgam of them helped me to listen and understand. but all of us understand, because that's the kind judges we have proven ourselves to be.

we rely on the law to command the results in the case. so when one talks about life experiences, and even in the context of my speech, my message was different than i understand my words have been understood by some. >> so you -- do you stand by your words of yesterday and when you said it was a failed rhetorical flourish that fell flat, that there are words that don't make sense and that they are a bad idea? >> i stand by the words. it fell flat. and i understand that some people have understood them in a way that i never intended, and i would hope that in the context of the speech that they would be understood. >> you spoke about law students to whom these comments were frequently directed and your desire to inspire them.

if in fact the message they heard was the quality of justice depends on the sex, race and ethnicity of the judge -- is that an understanding that you would regret? >> i would regret that because for me the work i do with students -- and it's not just in the context of those six speeches. as you know, i give dozens more speeches to students all the time and two lawyers of all backgrounds. and i give -- and have spoken to community groups of all type. and what i do in each of those situations is to encourage both students and, as i did when i spoke to new immigrants that i was at matane as students, to try to encourage them to participate all levels of our society. i tell people that that's one of the great things about america

that we can do so many different things and participate so fully in all the opportunities america presents. so the message that i deliver repeatedly as the context all my speeches as i've made it. so can you. work hard at it. pay attention to what you're doing and participate. >> led me ask about another speech you gave in 1996 that was published suffolk university law review. where you wrote what appears to be an endorsement of the idea that judges should change the law. you wrote, quote, "change, sometimes radical change can and does occur in the legal system that serves society whose social policy itself changes." you noted, quote "changes may develop an awful approach to."

can you explain what you meant by those words? >> the title of that speech was returning majesty to the law. as i hope i communicated in my opening remarks on impassionate about the practice of law and judging. passionate in the sense of respect in a world law so much. the speech was given in the context of talking to young lawyers and say don't participate in the cynicism that people l'express about our legal system. >> what kind of -- i'm sorry, i didn't mean to interrupt you. >> and i was encouraging them not to fall into the trap of calling decisions that the public disagrees with, as they sometimes do. activism or using other labels. but to try to be more engaged

and explaining all and the process of the ball to the public. and in the context of the words that he quoted to me, i pointed out to them explicitly about devolving social changes, that what i was referring to is congress is passing new laws all the time and, and so what ever was viewed as settled law previously will often get changed because congress has changed something. i also spoke about the fact the society evolves in terms of technology and other developments, and so the law is being applied to a new set of facts. in terms of talking about different approaches in law i was talking about the fact that there are some cases that are viewed as radical and i think i mentioned just one case brown versus board of education and

explaining and encouraging to them to explain the process, too. and there are new directions until all in terms of the court. the court -- supreme court -- is often looking at its precedent set and considering whether, in certain circumstances -- this precedent is owed deference for different reasons that the court takes a new direction and those new directions rarely if ever come at the initiation of the court. they come because lawyers are encouraging the court to look at a situation in a new way to consider it in a different way. what i was telling those young lawyers is don't play into people's skepticism about law. look to explain to them the process. i also, when i was talking about returning majesty to the law, i spoke to them about what the

judges can do. and i talked about, in the second half of that speech, that we had an obligation to ensure that we were monitoring the behavior of lawyers before us so that when questionable, ethical or other conduct could bring disrepute to the legal system, that we monitor our lawyers, because that would return a sense -- >> judge, if you let me -- i think we are straying away from the question i had been talking about oversight of lawyers. would you explain how, when you say judges should -- or, i'm sorry, let me just ask. do you believe that judges ever change the law? i take it from your statement that you do. >> de change -- they can't change law. we are not lawmakers. but we changed our view on how

to interpret certain laws based on new facts, new developments of doctrinal theory, considerations of whether the reliance of society may be in an old rule. we think about whether a rule of law has proved unworkable. we look at how often the court has affirmed a prior understanding of how to approach an issue. but in those senses, there's changes by judges in the popular perception that we are changing the. >> in another speech in 1996, you celebrated the uncertainty of the law. you wrote that the law is always in a, quote, necessary state of flux, and of quote. you wrote that the law judges declared is not quoted definitive capital l that many would like to exist, closed

quote and, quote, the public feels to appreciate the importance of indefinite ennis -- indefinite in the law. can you explain those and what you think indigenous is so important to the law? >> it's not that it's important to lacasa that is what legal cases are about. people bring cases to the courts because they believe that presidents don't clearly answer the fact situation that they are presenting in their individual case. that creates uncertainty. that is why people bring cases and say look the losses this but i am entitled to that. i have this set of facts that in title me to release on deval. the entire process of law. if law was always clear we wouldn't have judges.

it's because there is indebtedness knocking with the law is but its application to new facts, that people sometimes feel it's unpredictable. that speech as others live given is an attempt to encourage judges to explain to the public more of the process. the role of judges is to ensure that they are applying the law to those new facts, that they are interpreting that law with congress's intent being informed by precedent say about the law and congress's intent and applying it to the new facts. but that is what the role of the court is. and obviously the public is going to become impatient with that if they don't understand that process, and by encouraging

lawyers to do more work in explaining the system, in explaining why we are doing as courts. >> in a 21 speech at berkeley, you wrote, quote, weatherboard from experience or in harry inherent physiological or cultural differences a possibility i discount listen my colleague judge cedar bomb our gender and national origins may and will make a difference in our judgment, and of quote. the difference, a difference is physiological with it relates to the mechanical physical or biochemical functions of the body as i and understand the word. what do you mean by that? >> i was talking just about that. there are in the law there have been upheld in certain situations certain job positions have a requirement or certain amount of strength or other characteristics that may be a

person who fits that characteristics and have that job, but there are differences that may affect a particular type of work. we do that all the time. you need to be a pilot who has good eyesight. >> we are not talking about pilots. we are talking about judging, right? >> no, no, no. benign -- was talking about there because the context of that was talking about the difference in the process of judging. the process of judging, for me, is what life experiences bring to the process. it helps you listen and understand. it doesn't change the law is or what the law commands. a life experience as a prosecutor may help me listen and understand and argue in a criminal case. it may have no relevancy to what happens in an antitrust suit. it's just a question of the

process of judging. it improves both the public's confidence that there are judges from a variety of different backgrounds because better at least addressed, not that it's better addressed, but that it helps that process of feeling confident that all arguments are going to be listened to and understood. >> so you stand by the comment or the statement that inherent physiological differences will make a difference in judging? >> i'm not sure -- i'm not sure exactly where that would play out, but i was asking a hypothetical question in that paragraph. i was saying look, we just don't know. if you read the entire part of that speech, what i was saying is let's ask the question. that's what all these studies are doing. ask the question if there's a difference. ignoring things and saying, you

know, it doesn't happen isn't an answer to a situation consider it. consider it as a possibility and think about it. but i certainly wasn't intending to suggest that there would be a difference that affected the outcome. i talked about there being a possibility that it could affect the process of judging. >> as you can tell i'm struggling a little bit to understand how your statement about physiological differences could affect the outcome or affect judging and your stated commitment to fidelity to the law as being your sole standard and how any litigant can -- can know where that will end. but let me ask you on another topic. there was a "washington post" story on may the 29th, 2009, where -- that starts out saying

the white house scrambled yesterday to assuage worries from liberal groups about judge sonia sotomayor's scant record on abortion rights. and white house goes on to say, white house press secretary said the president did not ask sotomayor specifically about abortion rights during their interview. is that correct? >> yes. it is absolutely correct. i was asked no question by anyone including the president about my views on any specific legal issue. >> do you know them on what basis, if that's the case -- and i accept your statement -- on what basis the white house officials would subsequently sent a message that abortion rights groups do not need to worry about how you might rival in a challenge to roe versus wade? >> no, sir. because you just have to look at my record to know that -- in the cases that i addressed on all

issues i follow the law. >> on what basis what george pavia, that hired you as a corporate litigator, on what basis would he say that he thinks supported abortion rights would be in line with your general liberal instincts? he's quoted in his article, quote, i can guarantee she will be for abortion rights, *close quote*. on what basis what mr. pavia say that, if you know? >> i have no idea since i know for a fact i never spoke to him about my views on abortion, frankly on any social issue. george was the head partner of my firm, but our contact will set on a daily basis. i have no idea of that conclusion because if you look at my record i have ruled

according to law in all cases addressed to the issues of the termination of abortion rights of women's rights to terminate the pregnancy and i voted in cases in which i have upheld the application of the mexico city policy, which was a policy in which the government was not funding certain abortion related activities. >> do you agree with his statement that you had generally liberal instincts? >> if he was talking up the fact that i served on a particular board that promoted the quote opportunity for people, the poor rican legal defense and education fund, then you can talk about that being a liberal instinct in the sense that i promote equal opportunity in america and the attempts to ensure that. but he has not read my

jurisprudence for 17 years, i can assure you. he's a corporate litigator. and my experience with corporate litigators is the only look at the law when it affects the case before them. [laughter] >> well, i hope as you suggested, not only liberals endorse the idea of equal opportunity in this country -- that's a -- that's a big rock doctrine that undergirds i think all of our law. but that brings me in the short time i have left to the new haven firefighter case. as you know there's a number of the new haven fire fighters who are here today and will testify tomorrow. and i have to tell you, your honor, as a former judge myself, i was shocked to see that the sort of treatment that the three judge panel usurp don gave to the claims of these firefighters

by an unpublished summary order which has been pointed out in the press would not likely to be reviewed or even called by other judges on the second circuit except for the fact that judge cabranes read about a comment made by the lawyer representing the firefighters in the press that gave cord short shrift to the claims of the firefighters. judge cabranes said the core issue presented by this case, the scope of a municipal employers's authority to disregard examination results based solely on the successful applicant is not addressed buy any president of the supreme court or out were circuit -- looking at the on published summary order, this three judge panel of the circuit doesn't cite any legal authority whatsoever to support its conclusion.

can you explain to me why you would, well, dismissive, mabey too strong a word, but maybe to avoid the important claims the supreme court ultimately reversed you want there were raised by the firefighters appeal? >> senator, i can't speak to what brought this case to judge cabranes' attention. i can see the following, however. when parties are dissatisfied with a panel decision, they can file a petition for a rehearing and in fact that is what happened in the ricci case. those briefs are routinely reviewed by judges. and so, publishing by summary order or addressing an issue by summary order or by