claims from other judges. they get the petitions for rehearing. similarly, parties when they are dissatisfied with what circuit has done filed petitions for certiorari, which is a request for the supreme court to review a case, and so the court looks at that as well and so, regardless of how a circuit decided a case it's not a question of hiding it from others. with respect to the broader question that you're raising which is why do you do it by summary order or why do you do it in a published opinion or a per curium the question or the practice is 75% but circuit court decisions are decided by summary order in part because we

can't handle the volume of our work if we were riding along decisions in every case but more importantly because not every case requires a long opinion if a district court opinion has been clear and thorough on an issue. and in this case, there was a 78 page decision by the district court. it adequately explained the questions that the supreme court addressed and reviewed. and so, to the extent that a particular panel considers that an issue has been decided by existing precedent, that is the question the court above can obviously revisit as it did in ricci, where it looked at it and said well we understand what the circuit did. we understand the existing law is but we should be looking at this question and a new way.

that's the job of the supreme court. i would -- >> but, judge, even the district court admitted that a jury could rationally and for that city officials worked behind the scenes to sabotage the promotional examinations because they knew that the exams -- they knew that were the exams certified, the mayor would incur the wrath of reverend boise kimber and other influential leaders of the new haven's african-american community. so you decided based on their claim of potential gispert impact liability that there is no recourse that the city was justified in disregarding the exams and thus denying these firefighters many of whom suffered hardship in order to study and to prepare for these examinations and were successful only to see that hard work and effort to disregard it and not even acknowledged in the court's opinion. and ultimately, as you know the

supreme court said that you can't just blame potential disparate impact liability as a city and then deny someone a promotion based on the color of their skin. there has to be strong basis and evidence. but you didn't look to see whether there was a basis in evidence to the city's claim. you're summary opinion on published summary order didn't even discuss that. don't you think these firefighters and other litigants deserve a more detailed analysis and explanation for why you ultimately denied their claim? >> as you know, the court's opinion issued after discussions on bond recognized as i do and the hardship that the firefighters experienced that's not been made by anyone to read it was different than the one the district court addressed which is what decision the

decision makers made, not what people behind the scenes wanted the decision makers to make. but what they were considering and what they were considering was the state of law at the time and an attempt to comply with what they believed the law said and what the panel recognized as with the second circuit precedent said that they made a choice under that existing law. the supreme court, in its decision, set a new standard by which an employer and lower court should review what the employer is doing by the substantial evidence test. the test was not discussed with -- with the panel. it wasn't part of the arguments below. that was a decision by the court borrowing from other areas of law and saying we think this would work better in this situation.

>> my time is up, thank you. >> thank you. thank you very much. i note in the record we will put in their record a letter of support for judge sotomayor's nomination from united states hispanic chamber of commerce on behalf of its 3 million hispanic owned business members, 60 undersigned organizations including the el paso hispanic chamber of commerce, the greater dallas hispanic chamber of commerce, the houston hispanic chamber of commerce, the odessa hispanic chamber of commerce and a similar letter from the arizona hispanic chamber of commerce. i meant to put those in the record before. we will put them in the record now. >> mr. chairman i would offer a letter for the record from the national rifle association which expressed serious concern about the nomination of judge sonia sotomayor also i noticed that the head of the organization, mr. lapiere wrote an article

this morning raising increased concern after yesterday's testimony, and i would also offer for the record a letter from mr. richard land, the ethics and religious liberty commission on the southern baptist convention also raising concerns. >> and without objection those will be made part of the record. anything else? >> no. >> ausley yield to senator cardin. >> thank you, mr. chairman and judge sotomayor, good morning. welcome back to the committee. i just when you to know that the baseball fans of baltimore knew there was a judge somewhere that changed in a very favorable way. the reputation of baltimore for ever. you are a hero and they now know that it's judge sotomayor. you're a hero to the baltimore baseball fans. let me explain the major baseball league strike continued so cal ripken could become the

iron man of baseball in 75. so we just want to inflate you as a baseball fan we want to invite you to an orioles game and we promise it will not be when the yankees are playing so you can root for the baltimore orioles. [laughter] >> that is a great invitation. and good morning. you can assure your baltimore fans that i have been to camden yards. it's a beautiful stadium. >> we think it's the best. of course it was the beginning of the new trend of baseball stadiums and you're certainly welcome. before this hearing, the people of this country knew that the president had selected someone with incredible credentials to be the supreme court member. now they know the person is able and capable and understands the law and has been able to understand what the appropriate role is for a judge and interpreting the law and has done well in responding to the members of the united states senate, which i think bodes well for your interaction with attorneys and your colleagues on the bench and having a thorough

discussion of the very important issues the will affect the lives of all people in our nation. i do want to first start with the judicial temperament issue and the reference to the almanac on the federal judiciary. i just really want to quote from other statements that were included in that almanac where they were commenting about you and saying that she is very good. she is bright. she's a good judge. she is very smart. she is frighteningly smart. she is intellectually tough. she is very intelligent. she has a very good common sense approach to the law. she looks at the practical issues. she is good. she is an exceptional judge overall. she's engaged in oral argument. she is well prepared. she participates actively in oral argument. she is extremely hard-working and well prepared. i want to quote from one of the judges on your circuit, judge weiner, appointed by president

reagan, he said i don't think i go as far as to class fifer in one camp or another. i think she deserves the classification of an outstanding judge. i say that because maybe you would like to comment to these more favorable comments about -- [laughter] -- ogbar feels about your service on the bench. >> thank those who have commented in the way they did. i think that most lawyers to participate in arguments before me know how engaged i become in their arguments in trying to understand them. and as i indicated yesterday, that can appear tough to some people because active engagement can sometimes feel that way. but my style is to engage as much as i can so i can insure myself that i understand what a

party is intending to tell me. i am, in terms of what i do, always interested in understanding, and so that will make me an active participant in -- and argument. as i noted yesterday, i have colleagues who never ask questions. there are some judges on the supreme court who rarely asked questions and others ask a lot of questions. judge's approach issues in different ways with different styles and mine happens to be one and of this oil and others choose others. >> why thank you for that response. i agree with you that the constitution bill of rights are timeless documents and have served our nation well for over 200 years and in the of many other nations. there are many protections in the constitution but i would like to talk a little bit about the civil rights and the basic protections in our constitution and how we have seen a

progression from the constitution, bill of rights to constitutional amendments and putting the 13th, 14th, 15th, and 19th through congressional action through the passage of such bills as the civil rights act of 1964, voting rights act of 1965, supreme court decisions that we've talked about that have changed the civil rights in america, made it possible for many people to have the opportunities of this country that otherwise would have been denied. and we made a lot of progress since the days of segregated schools and restrictions on people's opportunities to vote. but i think we all do well to remember that vice given to us by our colleague, senator edward kennedy, the former chairman of this committee as he talks about the civil rights struggle when he says, and i quote, the work goes on. the cause and worse, the hope still lives and the jury meshaal never die. so, i say that as an

introduction in one area of civil rights and that is the right to vote. fundamental right. my own experience and 2006, just a few years ago causes me to have concerns in my own election why found there were lines longer in the african-american precinct to vote than other precincts, and was curious as to why this place. they didn't have these many voting machines, there was a lot of irregularities and it cost a lot of people who had to get back to work to be denied their right to participate. we also found on the election day fraudulent sample ballots targeted to minority voters an effort to diminish their importance in the election. i mention that because that happened not 50 years ago but happened just a few years ago. congress renewed the voting rights act buy rather large boats, 93 to zero in the senate, 390 to 33 in the house of

representatives. there's clear intent of conagra's to continue to protect voters in this country. in the northwest austin municipal utility district number one versus holder one justice on the court challenged congress authority to extend the civil rights case. now, i say that knowing your view about giving due deference to congress particularly as it relates to expanding and extending civil rights protections. so my question to do is tell me a little bit about your passion for protecting the right to vote to make sure that the -- team are enforced as congress intended to guarantee to every american the right to participate at the voting place. >> when we speak about my passion, i don't think that the issue of guaranteeing each citizen the right to vote is unique to me or that it's

different imam any senator or a non-any group of people who are americans. it is a fundamental right and it is one that you recognize congress has addressed for decades and has done an amazing job in passing a wide variety of statutes in efforts to protect that right. the question that a court would face in any individual situation is whether an act of congress conflicts with some right of either the state or an individual with respect to the issue of voting. there could be other challenges for use on a variety of bases but each case would present its own unique circumstance. there is one case involving the voting rights act where i

address the issue of the right to vote and in that case i wish you'd a dissent on a ruling by my court, the public may not understand what on blunt ruling means, when the whole court is considering initio. in that case if it wasn't 13 it may have been 12 members of the court, .14 judges but right now i can't remember if we were a full complement at the time. considering initio the majority upheld a state regulation barring a group of people from voting. i dissented on a very short opinion, one opinion saying these are the words of congress in the statute it passed. and the words are that no state may impose -- and i'm paraphrasing now. i'm not trying to read the

statute -- no conditions or restrictions on voting that denies or a bridge as the right to vote on the basis of race. i noted giving the procedural posture of that case that the plaintiffs had alleged that exactly what the state was doing. and i said that's the obligation on the complaint. that's what a judge has to accept on the face of the complaint. we've got to give him a chance to prove that and that to me was the end of the story. to the extent that the majority believed -- and there was a lot of discussion among the variety of different opinions in the case is whether this individual could or could not prove his allegation -- and there was a suggestion by both sides he may never be able to do it -- my point was a legal one. these are congress words.

we have to take them at their word. and if there is an end result of this process that we don't like, then we have to leave that to congress to address the issue. we can't fix it by ruling against what i view as the expressed words of congress. >> let me use your quote there because i thought of as appropriate. you said i trust congress would prefer to make needed changes itself rather in to have the court do so. and i think the members of the committee would agree with you as you responded to senator grassley and regards to the river keeper case you said you give deference to congress. i think we all share that. one of my concerns is that we are seeing judicial activism in restricting the clear intent of congress and moving forward on fundamental protections. let me move to the environment

which is an area that is of great concern to all of us. the past 50 years congress passed important environmental laws including the clean air act, water act, environment national policy act, endangered species act, safe water drinking act. despite the progress over the years it's important we keep advancing the protections in our environment. during your testimony yesterday made it clear you understand senators and members of congress elected by the people are the ones making policy by passing laws. and you also made it clear that judges apply the laws enacted and that the should do so or at least they should do so with deference to the intent of congress. yet we've seen in recent decisions of the supreme court like the solid waste agency of northern cook county versus u.s. corps of engineers and rapino is versus the united states that the forced the epa to drop more than 500 cases against alleged polluters. these decisions have been -- has

impact and it's clear they have a longstanding legal interpretations in the federal clean water act done by the supreme court. and ignoring the science served as the foundations for the law passed by congress and intent of congress to protect american people by providing them with clean water, clean air and a healthy environment. as a senator from maryland i am particularly concerned about that as it relates to the efforts we are making on the chesapeake bay. now, i understand that these decisions are now precedent and binding and require the congress to pass laws further clarifying what we meant to say so we can get us back on track. i understand that. but i would like you to comment that in reaching decisions that come to the bench, whether they are environmental laws or other laws that protect our society,

you will follow the intent of congress and will not try to supplant individual judgment that would restrict the protections that congress has passed for our community. >> believe my case -- am i cases, my entire record shows that i look at the acts of congress, as i think the supreme court does, with deference because that is the bedrock of our constitutional system, whic is that each branch has a different set of constitutional powers. that difference must be given to the rights of each branch and the situation. that is exercising its powers. and to the extent that the court has a rule, because it does have a role to ensuring that the constitution is followed. it attempts to do that. when i say attempt it always

attempt sit with a recognition of the deference it goes to the elected branches in terms of setting policy and making law. >> for that response. let me turn if i might to our personal background. there's been a lot of discussion here about what each of us bring to opposition in public life. progress for women in this country has not come easily or quickly. at one time women could not vote, could not serve on juries, could not hold property. i sit here today wanting to hold confident that the supreme court and its justices to make key decisions on women's rights in society will act to ensure continued progress for e quality with men and women. now we all agree that in rendering an individual decision, a gender or ethnic background should not affect your judgment. there is an important to diversity which i think we've all talked about. each of us bring our life experiences to our job.

your life experience at princeton, i think, serves as an example. you attended the school at as scott fitzgerald 90 years called the plus interest country club in america with a very restrictive policies as to who could attend the princeton university. by 1972 your freshman class it was a different place, but still far from where it should be. you -- and i admire your efforts to change that at princeton and directly involved in improving diversity at that school and princeton is a better place today because of your efforts. i think of my own experiences at law school, university of maryland law school which denied and admission to thurgood marshall and in my case had very few women. times have changed. justice ginsburg said, referring to the importance of women on the bench, says i think the presence of women on the bench made it possible for the courts to appreciate earlier than they

might otherwise it sexual harassment belongs under title vii. so, on behalf of myself and on behalf of my daughter and two granddaughters, i want to hear from you the importance of different ways is in our schools, and what congress, and then on the supreme court of the united states as to how having diversity, the importance of diversity, your views as to what steps are appropriate for government to take in helping to improve diversity. >> your comment about your daughter and granddaughter makes me remember a letter i received when i was being nominated to the circuit court. it was from a woman who said she had 19 daughters and grandchildren and how much pride she took in knowing that a woman could serve on a court like the second circuit. and i realized then how important the diversity on the bench is to making people feel and understand the great

opportunity america provides to all its citizens. and that has value. that's clear. with respect to the issue of the question of what role diversity serbs and the society, it harkens back almost directly to your previous question. it's been over using that word, "park in -- hearken," sorry it almost comes around to your earlier question, which is that issue as one that starts with the legislative branches and the government, the executive body, and employ years to look at their work force, that look at the opportunities in society,

and make policy decisions about what promotes that equal opportunity in the first instance. the court then looks at what they have done and determines whether that action is constitutional or not. and with respect, that leads to the education field, and a very recent set of cases, the supreme court looked at the role of diversity in educational decisions as which students they would admit, and the court upheld the university of michigan's law school admissions policy which -- because the school believed that it needed to promote as wide a body of and diverse a body of students to ensure that life perspectives, that the experience of students would be as folsom as they

wished. as they used race as one of the many factors, but not one that compelled individual choices of students. the court upheld that. and justice o'connor, and the opinion she wrote -- author -- expressed the hope that in 25 years race wouldn't even need to be considered. in a separate case, the university of michigan's undergraduate admissions policy, the court struck that down. and it struck it down because it viewed the use of race as a form of an permissable quota because it wasn't based on an individual assessment of the people applying but as an impermissible violation of the equal protection clause and of the

law. these situations always looked at individually and, as i said, in the context of the choices that, chris, the executive branch, an employer is making and the interest that it's a searching and the remedy that it's creating to address the interest it's trying to protect. and all of that is an individual question for the courts. >> well, and you need to look at all the facts and reaching those decisions, which you have stressed over and over again. i want to -- a justice who will continue to move the court forward in protecting those important civil rights. i want a justice who will fight for people like lawrence king who at age 15 was shot in school because he was openly gay. i want a justice who will fight for women like a 28-year-old

californian who was gang raped by four people because she was a lesbian. i want a justice who will fight for people like james burke because he was beaten and dragged by a truck for 2 miles because he was black. so we need to continue that focus. and you talked about race, a 6-year-old black child who was removed from school and was treated rather harshly with racial harassment. and in your descent you stated that the treatment this lone black child encountered during his free time in cook's hills first grade to have been not merely are doable, unusual and indisputable discussion but unprecedented and contrary to the schools established policy. justice blackmun spoke in order to get beyond race we first must take race into account of race. and if you ignore race completely, aren't you ignoring

facts that are important in a particular case? >> well, it depends on the context of the case that you're looking at. in the gann case there were a variety of challenges brought to the plaintiffs by the conduct that was alleged the school had engaged in. i joined the majority in dismissing some of the claims as not consistent with law. but in that case, there was a disparate treatment element, and i pointed out onto the set of facts that showed or presented evidence of that district treatment. that's the quote that you were reading from, that this was a child treated completely different than other children of a different race and the services that he was provided with and in the opportunities he was given to remedy or to receive remedial help.

that is obviously different, because what you're looking at is the law as exists, and the promise the law makes to every citizen of equal treatment in that situation. that situation. @ @ @ @ @ @ @ @ @ @ @ @ @ @ @ @ the facts. let me talk about privacy. the right to be left alone. if we must restrict this right it must be minimal. the supreme court has advanced the rights of privacy in the myers case, loving case, which established fundamental rights of persons to raise families and marry whom they please

regardless of race. i just would like to get your assessment of the role the court faces on privacy issues in the 21st century. recognizing that our constitution was written in the 18th century and the challenges today are far different than they were when the constitution was written as relates to privacy. the technologies are different today in the circumstances of life for different. how do see privacy challenges being confronted in the 21st century in our constitution and in the courts? >> of the right to privacy has been recognized, as you know, in a wide variety of circumstances for more than probably 90 years now, close to 100. that is a part of the court's precedents.

in applying the immutable principles of the constitution, the liberty provision of the due process clause and recognizing that that provides a right to privacy in a variety of different settings, you mentioned that line of cases and there are many others in which the court has recognized that as a right. in terms of the coming century, it is guided by those cases because of those cases provide the court's precedents and framework and with other cases and to look at how we will consider a new challenge to a new law or to a new situation. that is what presidents do. they provide a framework. the constitution remains the same, society changes, the situations and bring before quartz change, but the principals are in -- are the

words of the constitution guided by how president kiss or has applied to those principles to each situation and then you take that and you look at the new situation. >> in the time that i have remaining out like to talk about pro bono. i enjoyed our conversation when you're in my office talking about your commitment to pro bono. i think as attorneys we all have a special responsibility for equal justice and that requires a black access. is not just those who can afford a lawyer. the legal aid lawyers per capita are about 61 per 6800 and for private attorneys one per 525. this is not equal justice under the law as promised by the edging on the entrance to the u.s. supreme court. now, it makes a difference if you have a lawyer, if you have a lawyer you're more likely to be able to save your home, get the health care you need it and be

able to do with consumer problems and i have the honor of chairing the maryland legal services corporation and chaired the commission of legal services and i'm proud of the fact we help establish university law school and required clinical experiences for our law students so they not only get the experience handling a case but understand the need to deal with people who otherwise cannot afford an attorney. congress needs to do it more in this area, there is no question and i'm hopeful we will reauthorize the legal service act and provide additional resources but i'll try to get your view as to what is the individual responsibility of a lawyer for equal justice under the law including pro bono and how you see the role of the courts in helping to establish the efforts among the legal community to carry out our responsibility. >> i know that there's been a lot of attention paid to one speech and its variants that i've given. if you look at the body of my

speeches, public service and pro bono work is probably the main topic i speak at -- speak about. in virtually every graduation speech i gave to law students, speeches i have given to new immigrants being sworn in as citizens coming to community groups of all types is the importance of participation in bettering the conditions of our society, active involvement in our communities and a dozen have to be active involvement in politics. i tell people that. just get involved in your unity. work on your school boards. working your churches. work in your community to improve its. the issue of public service is a requirement under the code of the american bar association. virtually every state has a requirement that lawyers

participate in public service in some way. i have given multiple speeches in which i've talked to law school of bodies and said it, make sure your students don't leave your school without understanding the critical importance of public service and when they do as lawyers. and that we are in full agreement, senator. to me that's the core responsibility of lawyering. our founding fathers, and they became a what they became, our founding fathers because of their fundamental belief of involvement in their society and public service and to me in is the charge of the legal profession because that is what we do, we help people in a different way than doctors do been helping people receive justice under the law is a critical importance of our work. >> a very well said. i look for to working in

congress in the courts in advancing a strategy. thank you mr. chairman. >> thank you, senator cornyn. senator coburn. >> alan like unanimous consent for an article in the washington times. >> without objection, will be placed in the record can and let me apologize because i get to read some of your testimony. we have a schedule that says we must finish held within a certain time whether we get right or wrong with god to get it done in eastern time so i was involved with that and i apologize. number two is i apologize to you for the outburst occurred in this committee. anybody who values live like i do it is pro-life recognizes the when you change minds is not yell at people, you love them and care about their concerns and you create a level of understanding, not condemnation and seven that i apologize and admire your composure and think the chairman for the way they handle that as well.

i want to spend a few moments with a but i want to change the tone of little bit in terms of what we talked about. a lot of americans are watching this hearing and when i get to gather with doctors then understand of what have i say and when to lawyers talk most who are lawyers have trouble falling. i want us to use words that the american people can truly understand it as i 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 usn that roe vs. wade set them all. where are we today? what is the settle all in america about abortion? >> i can speak to what the court has said in its president. planned parenthood vs. casey, the court reaffirmed the core

holding of roe v. wade, that a woman as a constitutional right to terminate her pregnancy in certain circumstances. incase see the court announced that in the reviewing state regulations that may apply to that right that the court considers whether that regulation as an undue burden on the woman's constitutional right. that is my understanding of what the law is. >> let me give you a couple of cases. let's say i am 38 weeks pregnant and we discovered a small spina bifida sack on the lower sacrum, lower part of the back on 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 with the state of the state's law was on that question and went to the state said with respect to that issue. i can say that the question of the number of weeks that a woman is pregnant, that approach to looking at a women's activist change in that casey, the question is the state regulation in regulating what a woman in an undue burden so i can answer your hypothetical because i can't look at it as an abstract without knowing what the state laws exist on this issue or not and even i knew that there probably couldn't apply because i'm sure that situation might well rise before the courts. >> okay. does technology in terms of the advancement of technology, shouldn't have any bearing whatsoever on the way we look at

roe v. wade? for example published reports most recently of the 21 weeks m-1 hundred 42 days, fetus is alive and well at nine months of age with no apparent complications because the technologies that insofar that we can now save children who are born prematurely at that level -- should that have any bearing as we look at the law? >> the law has answered today in question. it is talked about the constitutional rights of women in certain circumstances and as i indicated in the issue becomes one of what is the state regulation and in a particular -- >> i understand that all i am asking is 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 in the way that you formant as a citizen.

become to me as a judge in the context of some actions that someone is taking, whether it is in the state to say, if it is a private citizen and being controlled by the state, challenging that action. those issues are -- >> but viability is a portion of a lot of that and a lot of the decision's been made on the basis of viability and if we now have it at 21 weeks, why would that not be something that should be considered as we look at and the status of what can and cannot happen in terms of this right to privacy that has been granted under roe v. wade? >> all i can say to you is what the court has done and the stares the court has applied, what a practice that may or may not look at within a particular faction will situation can't be predicted in a way to say yes absolutely that is going to be considered, no, this won't be.

>> all i am asking is whether it should. should it viability, should technology at any time be considered as we discuss these very delicate issues that have such an impact on some laypeople? you're answer is that you can answer it's. >> i can't because that is not a question that the court reaches out to answer. that is a question that that is created it by a 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 policy choices in the courts. we look at the case before us with the interests that are given by the parties, about our president and try to apply is principles and the arguments parties are raising. >> i am reminding that one of them that's a you to make policy and i will continue that. i am concerned and i think many

others are coming does the state legislature have the right under the constitution to determine what is death? have a statutory lead to finding and we have in 50 states and most of the territories what is the definition of death? you think that is within the realm of the constitution that states can do that? >> depends on what they are applying that definition to. and so there are situations in which they might in situations where that definition would or would not have a applicability to dispute before the court. allstate action is a look that within the context of what the state is attempting to do and what the liability to oppose it. >> but she would not indict the fact that states do have the right to set up statutes that

define and to give guidance to their citizens of what constitutes death? >> as i said, it depends in what context they are attempting to do that. >> they are doing is of a limit the liability of others with regard to that decision which would inherently be the right of state legislature as i read the constitution, you may have a different response to that. which brings me back to technology again. as recently as six months ago we now record fetal heart beats and 14 days pose conception. we record it fetal brain waves at 39 days post conception, and i don't expect you to insist but i do expect you to pay attention to it as to contemplate these big issues. we have a schizophrenic role of a law where we have defined death as the absence of those, but we refuse to define life as the presence of those. all of us are dependent at

different levels of other people during all states of development from the very early in the womb, outside the womb to the very late, and it concerns me that we are so inaccurate -- it is in proper term -- inconsistent in terms of our application of the logic. you said that roe v. wade is a set of law yesterday. and i believe it is settled under the basis of the right to privacy, which has been there. so the question i would like to turn to next is in you're ruling 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 search. >> please educate me if you would. >> in the supreme court's decision in heller it recognized individual rights 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 position of fire arms and in that case we are talking about handguns. the milan case presented a different question and that was whether that individual right would limit to the activities that states could do to regulate the possession of firearms. that question is addressed and by a legal doctrine.

that legal doctrine uses fundamental but it doesn't have the same meaning that common people understand that word to mean so most people of the word buys dictionary term is critically important central. and it is sort of a broad basis. those meetings are not how using 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 amendment of the constitution inc. against the state. >> to the 14th amendment. >> and others but the question generally, the the 14th, the question becomes whether and how

the question that the protection of playas or limits the states to enact. in milan the issue for us is a very narrow one. we recognize that heller held ended is a lot of the land right now in this set the precedent that there is an individual right to bear arms as it applies to a government, federal government regulation. the question in that maloney was different, was that right inc. against the state in a week determined that a given it supreme court precedent that had addressed in that a precise question and said it is not so wasn't fundamental in that legal doctrine sense, that was a court's holding. >> did the supreme court say in heller that definitely was not or did they fail to rule on it? >> they failed to rule. >> is a big difference there.

>> i agree. >> let me continue with that. so i said in oklahoma in my home and what we have today as long of the land as you see it is i do not have a fundamental inc. and right to bear arms? as you see the law today? >> it is not how i see the law in mack as you see the interpretation to be coming your opinion of what the law is today is my statement a correct statement? >> note id is not my interpretation. i was applying both supreme court precedent deciding that question and the second circuit precedent that had directly answer that question and said it is not in incorporated. the issue is a different question and that is the question that of the supreme court may take up. in fact, in his opinion justice

scalia suggested it shouldn't, but it is not what i believe, it is what the law has said about. >> so what does the law say today about the statement? where do we stand today about my statement that i have a? i claim to have a fundamental in guaranteed is spelled out ride under the constitution that is individual and applies to me the right to own and bear arms, am i right or am i wrong? >> i can answer the question of the incorporation of the van to refer to president. as the second circuit interpreted the supreme court precedent is not incorporated and it's also important to understand that the individual issue of a person of bearing arms is raised before the courts in a particular setting and by

that i mean what the court will look at and the state regulation of you're rights and then determine case they do that or not. so even once you recognize a right you're own is considering what the state is doing to limit or expand that right and then decide is that okay constitutionally. >> 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, which generated much of the 14th amendment was in reconstruction of seven states taking away the right to bear arms by free man. the recently freed slaves. and much of the discussion in the congress was to restore that right of the second amendment to the 14th amendment to restore 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. it let me move on. in the constitution we have the right to bear arms whether it is in corporate -- incorporated or not it is stated there. i'm having trouble understanding how we got to the right to privacy which is not explicitly spelled out but is spelled out to some degree in the fourth amendment, which has settled law and is fixed and something such as the second amendment which is spelled out in the constitution is not settled law and fixed. i know what to do is two that specifically, what i would like to hear you say is how did we get there? had we get to the point where something that is spelled out in our constitution and guaranteed to us but something that isn't spelled out specifically in our constitution is? would you give me your philosophical answer? i now want to tie you down in any future decisions, but how do we get there were we can read

this book and says certain things and those aren't guaranteed by the things that it doesn't say our? >> one of the restoration's with judges and their decisions by sissons -- and this was an early response to senator cornyn -- what we do is different than the conversation and that the public has about what it wants the law to do. judges don't make law. what we do is we get a particular set of facts presented to us. we look at what those facts are, what in the case of a different constitutional amendments is, what states are deciding to do or not do, and then look at the constitution and see what it says in a tent to take its words

and the principles and the precedents that have described those principles and apply them to the tax before you. in in discussing the second amendment as it applies to the federal government, justice scalia noted that there have been a 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 dc particular regulation was illegal. as you know, there are many states that prohibit felons from possessing guns, so does the federal government. and so is not a bad we make a broad policy choice and say this is what we want, what judges do.

what we look at is what other actors in this system are doing, what their interest in doing is, and how that bids to whenever a situation they think they have to fix, what congress or state legislature has to fix. all of that is the court's function. so i can't explain it philosophically, i can only explain its 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, i do believe in a leading my ability to have self defense of my cell? personal some defense. do i have a right to personal self defense? >> i am trying to think i

remember a case with 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 in most criminal law statutes are passed by states and i'm also time to think if there is any federal law that includes a substance provision or not, i just can't. what i was attempting to explain was to the issue of self-defense is usually defined in criminal statutes by the state's law. and i would think although i have not studied all of the state's laws. i'm 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

citizen have a right to self-defense? >> as i said, i don't know if that legal question has been ever presented. >> i wasn't asking about the legal question, your personal opinion. >> but that is sort of an abstract question with no particular meaning to me outside -- >> i think that is what the american people want to hear, your honor. they want to know do they have the right to personal self defense. does the the second amendment needs something under the 14th amendment? does how they take the constitution, not how are brightening legalize but what they think is important committees and okay to defend yourself in your home? if you are under attack. in other words, of the general theory is two have that right and i understand if you don't want to is that because it might influence their position that she might have in a case and that's a fine the answer with me, but those of the kind of

things people would like for us to answer and would like to know. not how he would rule or what you're 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 so, who's thinking is cornyn by law. >> i know, kind of like a doctor. i can't quit using dr. terms. >> that's exactly right but let me try to address which you are saying in the context that i can, okay? this is what i have experience with. which is new york criminal law because i was a former prosecutor and i am talking in very broad terms, but under new york long if he were being threatened him with eminent death or a very serious injury, you can use force to repel that. and that would be legal.

the question and that would come up and does, before jerry's 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 -- or ig go home -- i don't want to suggest anything. [laughter] i don't want anybody misunderstanding what i'm trying to say. if i go home and get a gun and come back and she laughed that may not be legal under new york law because he may have alternative ways. >> you have lots of explaining to do. >> i would be in a lot of trouble then. but i cannot be hundred definition of self defense and so that is what i was trying to explain in terms of 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 fax before you can add the problem is -- >> the problem is, it is hard to get out of the doctors can, lawyers think like lawyers and what americans is want to see inside what your dad says in part of that is why we're having this. i want you to move to one other area. you have been fairly critical of justice scalia, a criticism of the use of foreign law in making decisions. and i would like for you to site for me either in the constitution or in the oath that you took out sign a treaty is the authority that you can have to utilize foreign law in deciding cases in the courts line 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 ed. and that is an entry the interpretation before in conflict of law because it is a different system of law. >> but i accepted that. 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 of this country to make the decisions about was inside of 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 in.

my speech has made that very clear give axa you stand by, there is no authority for a supreme court justice to utilize for a lot in terms of making decisions based on of the constitution or statutes? >> unless the statute requires you or direct you to a foreign law and some do by the way. the answer is no. of foreign law cannot be used as a holding or a precedent or to a pint or to influence the outcome of a legal decision, interpreting the constitution, or american law that doesn't directly to that law. >> well, let me give you one of your quotes. to suggest anyone that you can outlaw the use of foreign or international law as a sentiment based on a fundamental misunderstanding, which would be asking the american judges to do is to close in their mind 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 for all along that is developed through bodies, and antibodies outside of this country to influence either rightly so or wrongly so against what the elected representatives and constitution of this country says, would you kindly explain the difference and that i received -- proceed in both the same press is the way you just answered? >> there is none in. if you look of my speech you will see that repeatedly i pointed out both of the american legal system was structured not to use former law. in repeatedly underscored that foreign law could not be used as a holding, as precedent or to interpret the constitution and the statute. what i pointed out to in that

speech is that there is a public misunderstanding of the word to use and what i was talking about, one does not use those things in this sense of coming to a legal conclusion in a case. what judges do and i cited the justice ginsburg, is educate themselves, build up a story of knowledge about legal thinking, and about approaches that one might consider but that is just thinking. it is an academic discussion when you're talking about thinking about ideas. it then is how most people think about the citation of for a long in a decision that. they assume the that there is a citation to foreign law, that is driving the conclusion. in my experience when i have seen other judge assigned to the foreign law, they are not using it to drive the conclusion. they are using just to point

something out about a comparison between the american law or for a long. but they are not using it in the sense of compelling a result mack i am not sure i agree with that on a commitment and 14th amendment cases. let me go to another, a short time. the you feel -- it has been said that we worry about one other people think about us in terms of how we interpret our own law and i'm paraphrasing not very well i believe we, is it important that 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 whenever the results maybe it is our results rather than a politically correct result that might, please other people in the world? >> we don't render decisions to please, the home crowd of or in the other crown will. i know that because i for the speeches by a number of justices that in the past justices have indicated the supreme court hasn't taken any treaty cases and that it to think about doing that because we're not participating in the discussion among countries on treaty provisions that are ambiguous. and that may be a consideration to some justices and some have expressed that as a consideration and my point is you don't go to please any ground. you rolled to get the law right under its terms.

>> thank you mr. chairman. >> sender tear white house. >> thank you mr. chairman and welcome again, your honor. i have to say before why i get into the questions that i have for you that i like many americans feel enormous pride in that you are here today and i was talking with some friends in providence -- home about your nomination would assume would and i said it actually gives me goose bumps to think about with the past that has brought you here today and more importantly to think about, not about you,

more important to think with that things about america. they say you can't say goosebumps, you have to say [speaking spanish] and so i promised them i was so i am keeping that promise now, but i want to tell you that i think in the way you handled yourself in this committee so far and have done nothing but to vindicate in reenforce the pride that so many people feel a new and i hope that as this process continues, this can be a bit of an ordeal, i hope that you very much feel buoyed and sustained by that private and that optimism and that confidence the people across this country feel for you in that summit people in this room feel for you. so i wanted to say that. i also want to fulfill another promise which is one i made to

you in my opening statement that i would ask you to make this simple pledge and that simple plant is that you will decide cases one in the what and the facts before you that you will respect the role of congress as representative of the american people, and that he will not prejudge any case but will listen to every party that comes before you and that you will respect president and limit yourself to the issues that the court must decide. and ask you to make that pledge? >> that is the pledge and take that i took as a district court judge, as a circuit court judge and if i am honored to be confirmed by this body that i would take as a supreme court justice. >> thank you. some of my colleagues have

raised questions about churro as a supporter rican legal defense and education fund and the many years ago before you left that organization to become a federal trial judge in 1992i guess it was. i just want to clarify and that was clearly a part of your history and your package that came to the senate at the time of those conversations with your confirmed both in 1992 and 1997 so this is nothing new to the senate, is that correct? >> that's, correct. >> and in terms of the way that the porter rican legal defense and education fund operated you were a member of the board, is that correct? >> i was. >> did the attorneys for the poor rican legal defense and education fund make it a

practice to get two there they go filings with the board first? did the board approved arguments that are made by attorneys for the organization? >> no because most of us on the board didn't have solarize experience. i have actually when i was a prosecutor in private practice that was my specialty of law even if they tried to show it to me i don't know that i could have made of the judgment even if i tried the. that was not our function. >> i think that is customary in charitable organizations for the board and not to sign a specifically on other legal filings that the attorneys make in certainly in the years i have spent on the boards of organization have not been presented to me so i appreciate that. and in 1992 and 97 when the senate was fully aware of all of

that, was there to your recollection the objection made in those conformations? >> i don't believe any question was asked about my service, porter rican legal defense and education fund and. the fun is an organization that has and has been considered in the mainstream of civil rights organizations like the naacp and the mexican american legal defense and education fund promotes the civil-rights of its community. >> let me turn to some more general questions if i made and one has to do with the role of the jerry. not just in trials. obviously you are eminently familiar with the role of juries in trials. i think he will be the only

member of the united states supreme court if you are confirmed two actually have had federal trial judge experience which i think is valuable attribute but i am not a thinking so much about the role of the jury in the courtroom. as i am about the role of the jury in the american system of government. when the constitution was set up as you know so well the founders made great efforts to disaggregate power, to create checks and balances in the matrix of separated powers that they treated has served us very well. in the course of that or as a part of that the founders also revealed some very strongly felt concerns about the hazards of

both of unchecked power end of the vulnerability of the legislative and executive branches to and their corruption and or to be consumed and overwhelmed by passing passions and love to hear your socks -- and your thoughts on the importance of the jerry quote in that american system of government and if you could with particular efforts to the founders about the vulnerabilities of the elected branches. >> like you and perhaps because i was the state prosecutor and have been a trial judge and so i have had very extensive experience with the jury trials in the american criminal law context. i have had less in it as a

private practitioner, but much more as a district court judge. i can understand why our founding fathers believed in the system of jerry's. i have found in my experience with juries that virtually every juror that i dealt with after having experienced it word-processing came away hard and, more deeply committed to the fundamental importance of their role as citizens in that process. every juror i ever dealt with shown great attention to what was going on, took their responsibilities very seriously. i have had a juror who is in the middle of the liberations on her way to my courtroom, on her way

home from court on the previous day when, broker legate, was in the hospital the entire night, came in the next morning on time in a wheelchair with a cast that one of to her hip. when a testament both to that woman into the importance of jury service to our citizens. i was very active in ensuring that. the sissons was recognized by our court. and has a central role. it is important to remember that it hasn't been fully incorporated against the states.

many are in different ways and so the questions of what cases require a jury trial in what film is still someone within the discretion state quarterback, but it is a very important part of a sense of the protection for defendants accused in criminal cases and one that i personally value from my experience with it. >> into the founders' concern about the potential owner abilities or liability is about the elected branch eliminate the importance of the jury system? >> senator, as i see the jury system i don't know exactly -- i

have read the federalist papers and have run other historical accounts, the jury system was i thought the basic premise to ensure that a person subject to criminal liability would have a group of his or her peers pass judgment on whether that individual had violated the law or not. to the extent that the constitution looked to the courts to determine whether a particular act was the was not constitutional it seems to me that that was a different function and what the jury was intended to serve. the jury as i understood it was to ensure that a person's guilt or innocence was determined by a group of peers to the extent that that has a limit on the elected branches to ensure that someone is prosecuted under the law and the law is applied to

them in the way that the what is written not walk or intended. >> and where did jury requirement applies to civil trials the argument would be the same, correct? >> yes. >> again on the question of the american system of governments, how would you characterize the founders knew what of any exercise of a unilateral or unchecked power by any of the three branches of government in the overall scheme? >> the constitution by its terms supports the garrison limits of each branch of government and so to the extent that there are limits recognize in the constitution that is clearly

what the constitution intends. the bill of rights, the amendments set forth their are often viewed as limits on government action so it is a question of ways of looking at what the constitution says what kind of scope it is for a government action at issue. >> would you feel in my of the attention very careful and thoroughly thought out attention that the constitution gives to establishing and enforcing a whole variety of different checks and balances among the different powers of government with, that a judge who is presented with an argument that a particular branch of a government should exercise or have the authority of exercise

unilateral unchecked power in a particular area, and should approach that argument with a degree of heightened caution or attention? with. >> the best performer that has been set out on this question of a unilateral act by one a branch or another, but usually it is the challenges raised in the executive is doing something with the executive and executes the law and it takes the action typically. the best on how to approach those questions was done by justice jackson in his concurring opinion in the youngstown a case. that opinion laid down a free-market bad generally is applied to all questions of

executive action which is you have to look at the powers of each branch together. you have to start with what congress has said express explicitly. an authorized to do something to let the president do something and the president is acting at the height of his powers. ming and congress has implicitly primitive and expressly or implicitly for him it's something then the president's hanting and the lowest ebb of his powers. and there is a zone of twilight which is the zone in between which has congress said something or not said something. in all of the situations once you have looked at what congress has done or not done in that are directed to look at what the

president's powers may be an end of the constitution -- one ever powers congress has in that area. no so the whole exercise is really in terms of congress and executive and the two working together. and perhaps a basic structure of our government, that is why the congress makes the long, the president can be done them but can't make them. you can regulate if congress gives him the authority to do so and then her and their delegated authority use what oration to use the word delegated because it has a legal meaning, but the point is that the question is always looked at in that line of congress said on the issue and in light of congress's power specified in the constitution. >> let me change to a more law

enforcement oriented topic. i appreciate, first of all, their immature service and district attorney office. is an office that prosecutors and around the country looked at with great pride in sense of a long tradition, is a very proud of the sun and delighted that she served there and i think it's is a great deal about to that coming out of law school and college would it be stellar academic record and that you had an entire it world of opportunity is open to you. you choose that rather poorly paid and off us and since you have met 89 of us and does she remember all of our conversations, but we knew and i had the chance who compared the

worst offices as a prosecutor and i thank you one. [laughter] and so when it was a very important moment at that point quite new lawyer to make a very significant statement about who you were and what your purpose was so i very much appreciate you made that choice. i think prosecutors and my colleague senator klobuchar and many others around the country, senator leahy, made that choice of the years and is one that merits a salute. one of the things the prosecutors have to do with all the time is search and seizure and warrants. my question has to do the warrant requirement under the constitution. i see the constitution is being changeless, time as an

immutable. with changes in society. as you pointed out in your testimony earlier in technology and some new questions arise. i would be interested in your reaction to the difference between him and the experience of society and now, the technology is deciding when the other set up the warrant requirement originally today. with the souter set up the requirement when the share for somebody went to seize property and as evidence for trout are condemning as contraband that was sort of the end of it. but it was evidence it was done and what was return it went back particularly papers returned and that was the end of its. then came the xerox machine and now the government could make copies of what they took and it was returned to as always just as the founders had intended, but copies were sprinkled

throughout government files. very often was that ended up in archivist, buildings and dusty boxes that have taken enormous effort to locate but nevertheless they remained available and nowadays with electronic data bases and electronic search functions, matters that once would have been returned to the individual and the envelope of privacy opened by the warrant would have been close again and there are internally available to government. internally searchable and it raises some very interesting privacy questions that we will have to face in this congress and senate as we begin to take on issues particularly of cyber security, cyber attacks and cyberterrorism and a definitive technology can bring to bear in

the continued struggle against terrorist extremists. so i would be interested in your thoughts and how the constitution which is unchanged to all of that, what analysis you would go through to see whether the change in a month from quickly opening and closing privacy to one that it essentially is now open season for ever, how would you go about analyzing that as a judge given that the constitution is a fixed document? web. >> i think if i understand your question senator that there are two issues if not more, but the two and that i note as more starkly for me in your question is of the one of the search and seizure and the fourth amendment as it applies to taking evidence

from an individual and use it against him or her and anchor proceeding. . proceeding. >> yes, which is a constant. that stayed the same. >> the structure. not so long ago the supreme court dealt with a technologically new situation which was whether an individual had a right to expect the warrant to be gotten before law enforcement blew over -- i think it was a his in that case, his home and took readings of the thermal energy emanating from his home and then going in to see if the person was growing >> the flir case. >>

in that case, the reason for that case is that apparently, i am not an expert in marijuana growing, but apparently when you were growing marijuana there is a certain heating like do you need, at least that is what the case was describing and it generates this enormous amount of heat that wouldn't generate-- generally come from a home unless you were doing something like this. and what the court did there come a in an opinion by justice scalia i believe it was, if it looked at the embedded questions of privacy in the home that underlie the unreasonable search and seizure and the court there, as i mentioned, determined that acts taken in the privacy of one's home would commonly not be expected to be intruded upon, unless the police secured a

warrant. and, to the extent that the law had generally recognized that if you work actively to keep people out of your home, you lock your windows, you lock your doors, you didn't let people walk by and peeks through, you didn't stand at your front door and show people what you were doing, then you are exhibiting your expectation of privacy, and to the extent that new technology had developed that you wouldn't expect to intrude on that privacy, then you were protected by the warrant clause and the police said an obligation to explain to them what their evidence was and let the magistrate, i use the magistrate in that more global sense, but he would let a judge decide whether there was probable cause to issue the warrant, reasonable

suspicion, the probable cause, a probable cause to issue the one. that is how the courts address the, or have addressed, the supreme court has addressed the in usual siege-- search and seizure and balance the new technology with the expectations, the privacy that is recognized in the fourth amendment. you asked i thought a separate question, which in my mind is different than their rights to privacy with respect to personal information that could be otherwise available to the public as a byproduct of the criminal action, or as a byproduct of your participation in some regulated activity of the government. there are situations in which it your industry is regulated you are going to make disclosures to the government and then the

question becomes how much and what circumstances can then government make out of this come up put it in the electronic database or use it in another situation. so much of that gets controlled by the issues you are saying congress is thinking about, which is what our people's rights to privacy in their personal information? should we as congress, as a matter of policy, regulate that use? the courts itself have been commanded by congress to look at certain privacy information of the individuals and guarded from public disclosure in the databases you are talking about, so we have been told, don't go using somebody's social security number and putting it in a database. that is part of a public

document that we have been told don't do that, and there is the reason for that because there is not only the reasons of identity theft but other arms that could come to people from that situation. so, that broader question, as with many, it is one that one could talk about a philosophy about, at the judge. you have to look at the situation at issue, think about what congress has set about that in the laws and then consider what the constitution may or may not say on that question, depending on the nature of the claim before the court. >> your honor, i thank you. i wish you well, and back in gretel leche lakeview on your appearance before this committee so far. >> thank you, sir. >> senator whitehouse, thank you. i appreciate the comments getting into the area of

criminal law and of course senator white mac-- whitehouse concerned as a u.s. attorney and an attorney general in brings a great depth of knowledge is to several on both the democratic and republican side, to this committee. judge, i appreciate taking your time and hope maybe will be setting a standard as we go forward. we will take a 15 minute break. [inaudible conversations] [inaudible conversations]

[inaudible conversations] >> there is then a interest expressed by, i was going to say by all of the senators but most of the senators have left the hearing. don't think that as a mean they are not going to be more questions, judge, because there will be this ground and above the ground and if it is a case of all the questions haven't been asked but not everybody have asked all of the questions, some will come back and ask them again. what we are going to do, we are going to have said that klobuchar and senator kaufman

will ask questions and we will then break for lunch. we will then have the senator specter and senator frank and ask questions, and i am saying this for the purpose of those who have the schedule and plan. we will take a break for lunch after these two senators. we will then go into the traditional closed-door session, which will be held in the senate judiciary committee room, so senator klobuchar, we seem to be heavy on prosecutors here. she is also a former prosecutor and the yield to you. >> thank you mr. chairman. good afternoon judge. thank you again for all of your patience and your thoughtful answers. everyone has been focusing on you. i have been focusing on how patient your mother has been

through this because i ran into her in the restaurant just that i can tell you she has a lot she would like to say. [laughter] she has plenty of stories that she would like to share about you. i thought i might miss my question in opportunity. >> don't give her the chance. [laughter] >> i was thinking, she is much more-- [laughter] she is much more patient than my mother has been, who has been waiting for this moment for me to ask these questions and leaving messages like, how long did these guys have to go on? my favorite one, the reason was i watch senator feinstein and she was brilliant. what are you going to do? [laughter] so, let's move on. >> we should introduce our mothers. >> exactly. i have some quick questions at the beginning just to follow-up on some of the issues raised by my colleagues. senator coburn was asking you about the heller case and the second amendment issues and i personally agree with the heller

case, but i remember that yesterday you said in maloney, your second circuit case, do you were bound by precedent in your circuit but that he would keep an open mind if the supreme court takes up the question of whether the 2nd amendment can be incorporated against the states, is that right? >> yes senator, i take every case case-by-case in my mind is always open and i make no prejudgment as to conclusions. >> okay commandante a follow up on a question that senator whitehouse was asking about the peurto rican legal defense when you were on the board. when might follow up, isn't it true that the aba, that their code of contact, the american bar association code of conduct bars members from medichian litigation because of a lack of a natural lawyer clint relationship? >> yes. >> finally, just one point. we have heard so much about your speech when she used the phrase wise latina and i'm not going to

go for that again, but i did want to note for the record, that you made a similar comment in another speech you gave that in 1994, which you have provided not only in this proceeding but you also have provided it when you came before the senate for confirmation to the circuit court in 1997, in 1998. no senator at that time, do you remember them asking about it or making any issue about it at the time? >> now. >> alright, thank you. nally comeau bun to what i want to talk about what is your work as a criminal prosecutor in senator whitehouse initially of the few questions about that. you were quoted in "the new york times" a while back about your time there and use of the one thing i have found is that if you come to the criminal justice system on a prosecutorial or defense level, thinking that you can change the ills of society you are going to be sorely disappointed. this is not for those kinds of changes have to be made.

do you want to elaborate on that a little? >> by the time a criminal defendant ends up in court, they have been shaped by their lives. if you want to give people the best opportunity at success at liford, it is a message i deliver frequently to my community, it has to be through early childhood. if you are waiting to do that once they are before a judge in court, your chances of success have diminished dramatically. and, so, one of my messages in many of my speeches to my community groups is pay attention to education. it is the value mom taught me but her lesson was not lost on me when i became a prosecutor. and it is a lesson that i continue to promote because i so

fervently believe it. the success of our communities depends on us improving the quality of our education, of our children and of parental participation in ensuring that that happens in our society. >> it also reminded me about the comment about some of the comments you have made about the limited role that a prosecutor has one goal in the limited role that a judge may have to respect that judicial role of not making the laws but interpreting the laws. would that be correct? >> that is, and the statement made to the newspaper article, i was focusing on eight different part of that, but it is. as a prosecutor my role is not to look at what i thought the punishment should have been. because that was said in law. sentences are set by congress within statutory ranges and my role was to prosecute on behalf

of the people of the state of new york, and that role is different than one that i would do if i were a defense attorney whose charges to do something else, to ensure that a defendant is given a fair trial and that the government has proven its case beyond a reasonable doubt. but, we cannot limit the ills of society in a courtroom. we can only apply the loss to the facts before us. >> yeah i think justice ginsburg made a similar comment in an interview she did. she was talking about, this was our exec quote, the legislature can facilitate the change as laws like the family medical leave act did. she was talking about family arrangements, but it is not something a court candy crete. a court can't tell the man she said, you of that to do more than carry out the garbage. i thought that was another way and you don't have to comment on that but it was another way of making the same point.

the devitt thing that i want to focus on which is that will let the prosecutor, some of the difficult decisions you to make about charging cases for instance. sometimes you up to make it difficult decision to charge a family member may be in a drunk driving case where someone kills their own child because they were drunk or because you have to make a decision when the public opinion has already decided someone is guilty but you realize you don't have enough evidence to charge the case. do you want to talk about maybe a specific example of that in your own career as a prosecutor or what goes into your thinking in charging? >> i was influenced so greatly by a television show, igniting the passion i had as being a prosecutor it and it was perry mason. for the young people behind all of you, they might not even know who perry mason was but perry mason was one of the first

lawyers portrayed on television and his story line is that, in all of the cases he tried, except one, he proved his client's innocence and got the actual murderer to confess. in one of the episodes, at the end of the episode, perry mason, the character who played the prosecutor in the case or meeting up after the case and perry said to the prosecutor, it must cause you some pain having expended all that effort in your case to have the charges dismissed. and, the prosecutor looked up and said, no, my job as a prosecutor is to do justice and justice is served when the guilty man is convicted and when

an innocent man is not. and, i thought to myself, that is quite amazing to be able to served that role, to be given a job, as i was by mr. morgan thought, a job i am internally grateful to him four, in which i could do what it just as required in an individual case. and, it was not without bounce, because i served the role of society and that role was to ensure that the public's safety and public interest were fully represented, but prosecutors in each individual case, at least in my experience particularly under the tutelage of mr. morgenthau was, we did what the law required within the bounds of understanding that our

job was not to play to the home crowd, not to look for public approval, but to look at each case in some respects like the judge does, individually. that meant in some cases bringing the top charge and i was actually known in my office for doing that often, but that is because i determined it was appropriate often. periodically i would look to the quality of the evidence and say this is just not enough. i had one case with an individual who was charged with committing a larceny from a woman, and his defense attorney came to me and said, i never ever do this, but this kid is innocent. please look at his background. he is a kid with a disability. talk to his teachers, look at

his life, but it is record. here it is. everything you said was absolutely true. this was a kid with not a blemish in his life. he said come up please look at this case more closely. and i went and talked to the victim, and i had not spoken to her when the case was indicted. this was one of those cases that was transferred to me so it was my first time in talking to her, and i let her tell me this story, and it turned out she had never seen the tooker pocket book. in that case, she saw a young man that the police had stopped in a subway station with a black jacket and she thought she had seen a black jacket. and identified the young man as

the one who had stolen her property. the young man, when he was stopped did not run away. he was just sitting there. her property was not on him and he have the background that he did. i looked at that case and took it to my supervisor and he said, i don't think we can prove this case. my supervisor agreed and we dismiss the charges. yet, there are others that i have prosecuted, very close cases, where i thought the jury should decide if someone was guilty, and i prosecuted those cases more often than not got convictions. my point is that that is such a wonderful part of being a prosecutor. the tv character said something that motivated my choices in life and something that holds true, and that is not to say by the way, and i firmly, firmly believe this, defense attorneys

survey noble role as well. all the fence into, judges, juries, and defense attorneys, we are all implementing the protections of the constitution. >> thank you. that was very well said and i want to take that pragmatic experience that you have, not just as a civil litigator but also as a prosecutor for guy losses then set about whether judges biases or their gender or their race should enter into decision-making and i actually thought senator schumer did a good job of asking you questions were in fact united been sympathetic to a particular victim or to a particular plaintiff but he ruled against them and i actually gave answers to give to this baggage carrier that came up to me at the airport in minneapolis about a month ago, after you had just been announced in he came up and he said, are you going to vote for that woman? at first they did not even know what he was talking about?

he said are you going to vote for that woman? i said i think so but i want to ask her some questions. he said the aren't you worried that her emotions get in front of the law? i thought, if anyone heard the twa case, where you decided, had to make a decision from some very sympathetic people, the families of people living killed in the plane crash and a host of other instances where you put the lot in front of where your sympathies lie. another piece of this that is a very different part of it is the practical experience is that you have, the pragmatic work that you have done and i just wanted to go through some of the pieces that you had come of the criminal cases that you handled as a judge and talked a little bit about how the pragmatic experience might be helpful in the court. not mean to side with the prosecution obviously, but helping you to maybe feerick for the facts as you have been known to be someone that really focused on the facts. one of them is this united

states v. false where per child pornography was found in a guy's, on his computer and you ruled out, although the police officers, didn't the probable cause for the search warrant, that the evidence obtained the search, the child pornography on the computer should still be considered under the good faith exception. to the exclusionary rule because the judge had not been knowingly misled and other words it was a mistake and could you talk about that case and how perhaps having that kind of experience on the frontline helped you to reach that decision because there was someone i believe that dissented in that case. >> that case presented a very complicated question in the second circuit law. there had been two cases addressing how much information a warrant had to contain and

what kind in order for the police to search a dependent's home, or should not say home, a computer to see if the computer contained images of child pornography. the two cases-- i should say the two panels-- i was not a member of either of those two panels-- had very extensive discussions about the implications of the cases because they involved the use of the internet, and how much information the police should or should not have before they look to get a warrant to search someone's computer, because the computer does provide people with freedom of speech, at least with respect to access the information and reading it and thinking about it. in the case before me, i was looking at it in the backdrop of

the conflict that it appeared to contain in our case law. whether case laws said was important for a police officer duchschere with a judge, and examine the facts before my case, looking at the information that the police have. and, considering whether in light of existing second circuit law as it addressed this issue, had the police actually violated the constitution. i hope i can continue. [laughter] >> you can continue. that was not, that was not a comment from above. [laughter] i have certain powers as chairman but not that much. >> please go on. >> whether it should get a warranter not in one member of the court said yes.

they had violated the constitution, and i joined that part of the opinion because i determined examining all of the facts of that case, that, in the law, that that was the way the law, the results of the law required, but then i looked at what the principles underlying the unreasonable search and seizures are without a warrant and looked at the question of what was the doctrine that underlaid there, and what doctrine it under base is that you don't want the police by letting your constitutional rights without a good-faith basis, without probable cause and that is why do you have a judge make that determination. that is why do you require them to go to a judge so what i had to look at was whether we should make the police responsible for what would have been otherwise they judges error, not their air. they gave everything they had to the judge and they said to the

judge, i don't know. even if they thought they knew, that is not what commands the warned. it is the judge's review so i was the judge in the middle. one judge joined one part of my opinion, the other judge joined the other part of the opinion and so i held up the yacks, violated the constitution but the evidence could still be used because the officers-- there was a good-faith exception to the error in the warrant. >> and i think you have made a similar finding which different underlying facts in united states v. san says when that it involved a clerical error, and than that was a case where the underlying the arrest warrant, where someone had been arrested, they found cocaine in you allow that in on the basis that the underlying arrest warrant, even though it was falls, there had been warned out there, that was

a clerical error and you could still, they could still use the cocaine. >> in fact, holding the supreme court, and issue the supreme court addressed just this term came out-- i came out the way the supreme court did. >> on the hearing case? >> yeah. >> very good. the piece of that some of the case in the supreme court that is most interesting to me in terms of that issue we have been talking about, the practical knowledge and how that plays into decisions is the melendez/diaz case. it was the u.s. supreme court case that this is just for my own practical work is the prosecutor and it was the contested case with the supreme court. it did not divide ideological. in fact justice fryer and justice roberts loren dissent and justice kennedy wrote, it was a 5-4 decision handed that case the issue was whether not with the confrontation clause whether or not lab workers,

crime lab workers should be called then to have to testify for drugs and what the tests showed, what were in the drugs and things like that the i just wonder what your reaction was to that case, how you would have analyzed it. i zikri with the dissent in that case. i think that it opens up nine years of precedent and i think it is unreasonable for what we should expect of a criminal justice system and there has been some pretty strong language in the descent of the fear that this will create some very difficult-- difficulties for prosecutors to follow through on the evidence and get their cases in. >> it is always difficult to deal with people's disappointment about cases, particularly when they have personal experiences. and have their own sense of the impact of the case. i was a former prosecutor, and it is difficult proving cases as

it is, calling more witnesses to the process, but at the end, that case is a decided case, and so it is holding now is its holding and that is what guides port in the future on similar issues to the extent there can be some. as i said, i do recognize that there can be problems as a former prosecutor, but that also can't compel a result. and, all of those issues have to be looked at in the context of the courts evaluation of the case and the judge's view of what the law permits and doesn't permit. .. interesting story a few weeks

ago about just that you've been tenacious about getting to the bottom of the facts when you have cases, and there were actually some experts that criticized you for spending too much time trying to figure out the facts which i thought was a pretty unique criticism in the -- in the halls of criticism, and in fact you were defended by a former clerk to clarence thomas who said that you are extraordinarily thorough and a judge would ordinarily be praised for writing thorough opinion. so when we are talking about mel endes diaz and some of those issues, it seems to me when you have looked at cases involving criminal justice or any issue, whether it's that you want to talk a little about why that is important? >> the tax on the basis for legal decision. a judge deals with a particular judicial setting in applying those facts to the extent that there is any criticism that i do

that on the court of appeal swore, we are not fact finders but we want to ensure that we understand the facts of the case to know what legal principle we are applying it to. judge's job whether on the trial level the, the circuit court or even the supreme court is not to create hypothetical cases in his as a hypothetical case, it is serious as the case that exists in my view and not suggesting any justice does or doesn't do this but i do think my work as a state prosecutor and a trial judge sensitizes me to understanding and approaching new starting from the? and then applying the law to those facts as they exist. again, i don't want to suggest this cannot all judges do that, but because of my background

perhaps like justice souter who also has the reputation of carefully looking at the? end up applying the law to the tax is maybe that background that people are noticing and noticing where we picked up that haven't. >> in a report issued last week the transactional records access clearinghouse, and another was such a thing, found that you send more convicts to present and handed out on the sentences and your colleagues did when you're a district court judge. one that says it found that you have a sentence which the the six months to 40 percent of convicted criminals and one caller cases where your colleagues give us an ises of six months of more to just 36%. you were also twice as likely as your call is to send white-collar criminals to two years or more in prison. i found the white-collar cases

to be some of the most daunting cases that we have in our office when i was a prosecutor. they were challenging because the laws oftentimes sympathy. you don't maybe -- dating myself -- 10 years ago there was my sympathy but to pilots and tax evasion cases with pilots are we have a judge that we prosecuted the who have a half day of his friends come and testify that he shouldn't go to jail including the former miss america. and so i have found those cases to be difficult. coup-detat a little about your view of sentencing in general and sentencing white-collar defendants in particular? >> it should be remembered when i was a district court judge the sentencing laws are different than they have big, during my 12 years on the court of appeals.

it makes me sound agent, but back in the days of a district court judge the sentencing guidelines were focused on in the amount and did not consider the number of victims' or the consequences and the number of victims of a crime. behalf. perhaps because of my prosecutorial background and perhaps because i considered the prospective member of prosecutors who came before mean that the guidelines in their arguments and the guidelines did not adequately consider the number of victims and that should make a factor because someone who commits 100,000, $1,000 crimes may be as culpable as the person who does a onetime

act of 100,000 and depending on the the victims and the impact those are factors that one should consider and so many of the white-collar censuses that you are talking about were focused on living and the guidelines and what the guidelines were undressing in assuring that i was considering as the sentencing statute required the court to do bad as all of the circumstances of the crime. i suspect that may drive one of the reasons why i may have given higher white-collar crime senses than some of my colleagues, not to suggest they didn't listen to the arguments that they may have had a different perspective. i should tell you that my circuit endorsed that factor is a consideration under the guidelines some one after i have

started imposing sentences on this view but they also agree this is a factor the courts could consider in fashioning a sentence. crime is crime when and to the extent that you are protecting the interest of society you take your cues from the statute congress gives in to the sentencing range that congress says and so to the extent that in all my cases and balance the individual sentence as i was directed to the interest of society sought to protect them, then i applied that evenhandedly to all cases. it is a printer member the guidelines or mandatory and so i took my charge as a district court judge seriously at the time of two only deviate in the

very unusual case which was permitted by the guidelines. >> and what you think about that change now that there are guidelines and suggested guidelines and not mandatory? >> as you know, there has been a great number of cases in the supreme court. the booker line of cases, they determine if there were guidelines. my own personal experience as an appellate judge is because the supreme court has told the district courts want to give serious consideration to the guidelines there has been, there has been discretion given to the district courts, the but there are basically still the same within the guidelines and i think that is because the guidelines prove useful as a starting point to consider what and a purpose sentence maybe.

>> just one last question mr. chairman, all these have been asking about your baseball case and talking about umpires and judges as empire's. two have a chance to watch the all-star game last night? because most of america did and watch the replay of your hearing. [laughter] they might have been watching it. >> i haven't seen television for a very long time and. [laughter] i will admit that i turned on for a little while. >> there was, i will say and maybe you did not turn it on at this moment but and a cure -- a yankee dairy cheater scored only because there was a hit by joe mauer. i just want to point that out. thanks very much been. >> i am resisting any red sox comments. [laughter] >> i will be careful not to hold

that against. >> i did see a photograph on and the president throwing out the ball. another photographer well. and thought he did a very good shot with the pictures. the center kaufman is probably as knowledgeable on anybody in this committee having read it for years before becoming a center and i said before the judge that senators are merely constitutional requirements were impediments to the staff and who really runs the place. to senator kaufman, over to you. >> thank you mr. chairman. >> i should make one more thing, i hear some banging going on. appear with the air-conditioning went out which will probably come as welcome news to some of the press who are freezing and the skyboxes up here.

but is not welcome to this year with the crowd going on and they are working on it but we're going to keep going as long as we can. >> thank you mr. chairman. one of the toughest assignments i am doing to stand in the audience of launch. so i am going to try to bear under that. good afternoon, judge. >> good afternoon. >> it is good to see you. in i want to take a different tack. and i think senator white house and klobuchar talked a lot about your time as a prosecutor. out like to move on to your time is a commercial litigator in your a prosecutor for five years and then decided to go to commercial practice. what kind of sauce were behind deciding when you left the d.a. office to go into commercial practice? >> actually is a continuation of what explain to senator klobuchar. i had in the d.a.'s office

realized that in the criminal law system we could not affect changes and opportunities for people, we were dealing with the discrete issue in applying the law to the situation at hand, that if there was going to be an increase of opportunity for all people that that had to involve an increase in economic opportunity and economic development for different communities and so that in combination with my desire to broaden my own personal understanding of as many aspects of what is i could, i decided that i should change my focus and concentrate on commercial matters rather than criminal matters. and also guided some of the, much of the pro bono work and did thereafter which also

involves questions of finances and economic opportunities and so i served on the new york state mortgage board and the new york state mortgage office was involved in giving individuals affordable housing are loans for affordable housing. i was a board member of the new york city campaign finance board and those were activities that motivated in large measure because of my growing belief that economic and opportunities for people with a way to address many of how the growth needs of communities. >> you tell us about your commercial practice, what are you dealing with as litigator? >> ming it was a wonderful practice because of my some of my law school friends i very much wanted to go into a small law firm where i could have

hands-on practice. having been a prosecutor in having made all of the decisions to individual decisions i made i to myself as i was leaving the d.a. office i don't think i can go to those firms rallied in the fifth guy on the totem pole. that i wanted to have more hands on experience so i went to a much smaller firm, so i became a partner intended to work directly with a partner and would often cancel businesses and into a wide variety of commercial issues. all i was involved in a range of commodity trading. people buying a home grown u.s. grains of all kinds, wheat, oats, you can name them all. including orange peels as feed for animals. and the contracts that they were involved in and doing those trades. are firm represented a very

impressive list of clients including nouri the car manufacturer. i did a great deal of their work as it related to their dealer relationships and to their customer relationships and so i involve myself in those commercial transactions which were different and a different focus and different emphasis. i also represented not me but the firm but i counseled the clients on many of its dealer relations issue. these are names i suspect many people know. would -- and then the fashion designer and i think there are many people who know how famous than fashion house design is in and trademark questions and i participated with the partner who founded in that practice with the law firm and she had a

very untimely death. actually she came from her home ill to vote on my partnership at the firm and then became a partner and a couple of months later she passed away. so, but she had worked with me and introduced me to the intellectual property area of law. i worked on real estate matters. i worked on contrast matters of all kinds, licensing agreements, financing agreements, banking questions. there was such a wide berth of issues that i dealt with. >> and how did that practice help do on the district court in the circuit court of appeals in? >> could him and actually one of the lessons i learned from my

commercial practice and learn in the context first a minor in commodity trading but in the work isn't related to all commercial disputes. there was one main lesson of. in business the predictability of long may be the most necessary in the sense that people organize their business relationships by how they understand the courts interpret their contract. i remember being involved in any number of litigation's or at the end of the litigation as part of the settlement i would draft a settlement between the parties and quite often involves creating an ongoing feud of a relationship or a temporary continuation of a business relationship so they could wind down. and i would travel up the agreement might indicator, like

the judge tried to be, sin and simple words and a legitimate corporate partners and i should not say it this way, i would get that stuff and sometimes i would look and say what is this gobbledygook mean and they would laugh at me and said it has meaning. this is how the courts have interpreted. it is very important to the relationship of the parties that date know what the expectations are in what about their relationships. then i understood and why it was important to praise -- phrased things in certain ways and it may be very respectable about the importance of a predictability in terms, of course, interpretation, of business terms because that was very critical into organizing business relationships in our country. >> one of the amazing job of district courts is getting people settled before they get to trial. how did your commercial

experience helps you deal with that? >> it's interesting because i remember one case and i can't give you details because i would be breaching confidentiality, but i remember a client coming in to me with a fairly substantial litigation and i looked at the client then i send robert, i evaluated the case and there are some novel theories here. i really thank you can win, but there is a serious question about the cost to get their. because these are all the things that we would have to do to get their and is going to cost do, it was millions of dollars that i estimated. the client went to another lawyer who gave them a different evaluation with and they went with that other lawyer. my firm lost all laugh in come.

but the client came to me afterwards, the figure i put on the litigation was exactly what they spent. settlements are in generally in the business world economic decisions. a balancing of the cost of litigation and the right of the issue, but business has a different function than courts. a business function is to do business, to do their work, cell products, order relationships and litigation are different. as a judge and as a district court judge most of my focus was on doing what i used to do as a lawyer to talk to part is not about the merits of their case but about the consideration thinking about creating new ways to approach a legal dispute said they could avoid the cost of litigation. as a circuit court judge and very cognizant of the cost of

litigation and what parties are doing with bearing that in mind. >> you talk about your experience and a circuit court judge. hunter being in district court judge help b. when it became the circuit court judge? >> well, no question that it may need more sensitive to the importance of facts. one and looking and the tax that the courts found in the tax the parties are arguing and looking at the record to understand what went on a. i often pointed this example. when i said on panels and our court expressed by having judges with a wide variety of circumstances and i know for me because i was a trial judge in and read all the briefs and a case, alan freed the district

court's decision and the parties are arguing something in the district court didn't address it. my first question to my law clerks were go back to the record and tell me why not. most judges address argument that people are raising and i would get to oral argument and about is the only judge of trial experience and work with the parties and saying did you argue this be for the district court? and i could see some of the and tenders going up for those filings who have not had that experience, i have not thought of that. let me go back to if that was the case because there are all sorts of doctrines and the don't permit parties thought to our youth things on appeal and so that is how the experience comes in both the sensitivity of the

tax and to ensure that you are applying law to those fax. >> i'm glad you have this commercial is serious because as i said i am concerned about business cases. they are important and i am also concerned with the current court's too often to disregard it congressional policy choices when it comes to business cases and it's a concern of our economic crisis congress probably but will definitely past financial regulatory for a package. oh decide to make sure that this system is not undermined by the court because they just don't have a different view of what government regulation is all about. to leave the congress has the constitutional authority to regulate financial markets? >> you have just raise the very first question that will come up when congress is an active. because i can assure you nine maritime congress passes an act

there is a challenge by 70. as soon as it applied to someone in a way that they don't like they will come into court so i can answer that. >> i really should have raised -- in general not with regard to any case at all, about congress's constitutional authority to regulate financial markets. >> i can't answer that because it invites an answer to a potential challenge. when i can say to you is congress has certain constitutional powers. one of them is to surpass laws affecting interstate commerce and so the question will be the nature of whenever statute congress passes, which tracks and relies upon and the remedy that in institutes and so each of the questions would depend on the nature of the statute and what it is doing. >> congress basically has the

ability to regulate markets. >> and has the ability, the constitutional terms are to make laws that and all of commerce between the states. those of the words and generally that has been interpreted to mean passed laws that affect commercial interstate transactions can meant to get a more broader question about laws enacted by congress, but should a judge's role be in the wisdom of the statute play in interpreting it? when congress passes a law, what is basically whether the judge thinks it's a good or bad laws and what role does that play in the law? >> i'm trying to think if there's a situation in which a judge would have judging in that way. policy-making and making losses up to congress and the judges' personal use is as of that policy choices quarterback has

no role in evaluating congress's choice. the question for us is always a different one which is what has congress done in constitutional in the manner in which it is done in. but policy choices or congresses choices and all areas has to be given to that choice is balckout about regulation adopted by regulatory agencies? >> de france has given in that area by the courts as well. and generally one of silicon riss has said about that question because executive agencies have to apply him and talk about regulations in light of what congress has commanded, but those are also entitled to

deference of different doctrinal situation. >> i want to talk a minute about securities-law. what is -- what characterize security log dogged in the southern district of the second circuit? >> everything. we are the home of new york city. our jurisdiction -- i am sure that another state is going to complain that we are the business capital of the world, that is how it has been described by and others. and so we deal with every areas of securities law as one could imagine from investment questions to the misleading statements to investors to never congress has regulated are circuit will have the case on. or i should say it usually starts with the district court's

and it will have perked up to the circuit court, but if you have a securities law, will likely eventually hear the argument. >> it should be valuable on the court if you are confirmed. >> i presume so because it has been a part of my work both us district court and circuit court judge pmlq has a case with the suit against new york stock exchange with the plaintiffs' suits for failure to effectively regulate the market and you rolled to new the new york stock exchange community from the suit in the united the alleged misconduct seemed and regis. to reach that decision had you have the rationale remedy when the remedy this situation where they have been wrong because you said it was wrong? >> is someone important to recognize limited role that courts are and in the issue of revenue also is one where one

has to talk about rimini in the ways that these individuals were injured, they were injured by third parties with who had done the allegedly illegal acts against them and the courts to millington not affect their ability to take action against those individuals and clearly that is so is difficult in some situations if they have been arrested etc. but there were still revenues that law provides in terms of what other assets those individuals have, when ever criminal actions the government may take another and funds are traded to reimburse victims. the question here was whether an agency that in case law with seem to have a quasi governmental function, whether you could sue that agency for

contact, for not regulating the other individuals adequately and helping to prevent the activity, but regulation comes in different forms by the government or quasi government agencies and what they can do depends on the exercise of discretion under the laws that exist at the time. and so on the immunity doctrine wasn't looking at the issue of how to recompense the individuals, it was looking at the functions, quasi functions of government. so there is a desperate perspective and that was given to the judges in that case of. >> in another securities case you in the panel members deferred to the ftc interpretation of its own regulation. even though you seem somewhat

skeptical of the interpretation, tell us about how you came to the conclusion you did in the case? >> well, there is a doctrine chevron deference and it goes to the issue of who makes a decision and then goes to policy questions to the extent that an agency interpretation is inconsistent with congressional commands, express commercial commands. a judge can't substitute their own judgment of what policy should be or regulation should name, but is committed to give deference. there are obviously in every situation is said exceptions to when you don't, but you have to then applied a consideration to each of those exceptions in the particular circumstance before you. there have been other situations in which i have ruled and send

the agency is not interpreting the statute in accordance with what the panel did was congress's intent. yesterday shebly one of the other senators ask me about the river case with a different view of what the words congress to use meant, but the point is the role of courts is not to substitute their own judgments but to apply the principles of law in accordance with the act that agencies are doing. >> one more securities question. in recent years is seems our regulators were often too lax when it came to ferreting and securities fraud. what role do private, cases brought by them are in forcing our securities laws? >> is a right congress has given presumably because congress has

made a policy choice that it is a way to ensure that individuals injuries are remedied. that is it is a part of many of our securities laws, and antitrust laws. government doesn't have unlimited resources to pursue all individual injuries unsung some situations congress makes a twist to grab the private cause of action and some it doesn't. that is a legislative choice. >> antitrust law, what was your experience? both as practice and as a judge. >> i am trying to think, i don't remember having direct experience in antitrust law when i was in private practice. i don't think -- minded. and so i have very little. i am trying to think of many of

my cases on the district court and the major league baseball strike was one of them and it is the one that i can think of. i have antitrust cases there as allow. often in the cases settled i chile and some managing those cases was in the prime function i have added a district court judge. if you give me a chance to look in my district court decisions again to see what other cases in the antitrust theory and may have ruled upon district court i can get back to you, senator, either of the next round win a written question. in the circuit court it is different. i participated directly in writing opinions in joining panels on opinions so i had a

lease to and not three or four or five of those cases. >> yesterday senator coal asked about a legion case which is striking in overturn 96 years of precedent and legalize private opinions to prevent discount retailing. use said both majority in the case had a reason to question the economic theory underlying their original president. i don't want you to contact comment on region in particular. but what is the role of the court in music and a theory to interpret acts of congress? >> well, you don't use economic theory to determine the constitutionality of congressional action. that is a different question ii think the one that was addressed. when he addressed was how the accord would apply congressional act against the antitrust laws

to a factual question before it and that is a different issue because that doesn't do with questioning in the economic choices of congress. that goes to whether or not in reviewing the action of a particular defendant the court is going to apply to that activity end it in this case the court's decision was we had a prior case law that says that this type of activity is always anti-competitive and the corn in reconsidering that issue in the case said in there has been enough presented in the courts below to show that maybe it is not in some of to any anti-competitive and so we're not going subject to mass food barbara to review under rule of reason. that is why is that it is not a

question of congress' economic theories that underlay this decision in legislation, there weren't striking down upon the with the court was trying to do was to figure out how it would apply that law to a particular set of tracks before it. >> in illinois brick is supreme court classic case just as wide ruled in considering whether to overturn precedents we must ban on the considerations when heavily in construction. where congress is free to change as court's interpretation of legislation do you agree with him? >> i think as you know the doctrine is not dependent on one factor. the court considers a variety of different factors including the administrative work ability of a law, the reliance after that as

society has put into that role, that president the cost to change it and whether the it underlined -- and in related areas, the underlying corporate america of related areas will lead a court to question both whether the prior precedent really has a framework that is consistent with an understanding in this area that has been developed in other cases and finally has there been a changing society issues that the natural findings upon which they must promise may be wrong and there is always the question as part of that analysis and other factors the courts may think about as to whether the owner rule has been affirmed by the court and how often and over what time. to the extent that justice white

is talking about a factor that the court should put into that mix the corn has recognized in its satre decisis jurisprudence that all of the fighters way into the decision. to think about why and under what circumstances it should not alter the course of the court's interpretation and set forth in prior president he met recently there has been erosion in the antitrust inquiries and enforcement and as an easier the they become so massive they are in effect to big to fail. should a court sitting in an antitrust considered a risk injected by a financial institution being too big to fail? >> the antitrust theory is premised on insuring competition

in the marketplace. the question like the one imposed is one and that would come to the court in a particular context and a challenge to some approach the court has used in this area. obviously i can tell you absolutely yes in in a hypothetical but obviously the court is always looking at one activity bonds is claimed to be illegal under the antitrust laws and when the flag and has on anti-competitive behavior. of the question frequently in antitrust is a particular area subject to per say -- seven to the reason and to have different approaches to the reason. >> thank you, judge. thank you mr. chairman. >> thank you very much, senator, man. i mentioned before in this

almost 1:00 o'clock and we will take a break until 2:00 o'clock. and 2 o'clock. dave: we will recognize senator specter and then it senator franken. when their questions are finished we will go into the traditional closed-door session which will be held not in this room but the senate judiciary committee room and find that we will come back and if there are senators to have further questions they will be recognized not to exceed 20 minutes each. i would hope that if the questions are now been asked and answered that they may want to resist the temptation to do it again, but they have that right to take the whole 20 minutes the they do. i realize a lot of the questions have been asked and not everybody has asked the same question so they may want to but they have that right and that is

what we will do and we will stand in recess until then. [inaudible conversations] wamp. c-span: of [inaudible conversations] [inaudible conversations]

[inaudible conversations] [inaudible conversations] the judge, what did you do with your mother? [laughter] kim and she needed a and shorebreak but it wasn't because of senator specter or senator frank. >> i had a nice chat with amy klobuchar this morning into is talking about when she first compare notes with my wife and both agree the that that is one

nurses to the hand of the nurses and now there are nurses plus with advances in madison. i just discussed this again with senator sessions, we'll go first to senator specter and and senator frank and then we will recess and go into the other room for the closed hearing. senator specter, of course, is former chairman of this committee. one of the most senior members of the senate and one of the most experience. senator specter. >> thank you mr. chairman. , judge sotomayor. you have held up very well in all the proceedings in the senate to. this is the most exact of a witness. years ago as you know in the case of ash congress is

tennessee they said it was unconstitutional to subject a suspect to relayed it realigned but that doesn't apply to nominees. and your family has been here. my wife joan specter who has been -- it is a lot harder to listen to me that it is to make a speech for soft. and you are engaged. i think beyond doing very well and stamina, you have shown intellect and humor and term and private and also modesty sounded has been a good hearing. notwithstanding all of those qualities, the constitution says we have to decide whether to consent and that requires the hearing process and of the

questions. before going into a long list of issues mentioned have on the agenda separation of power and a wireless wiretaps become a secret cia programs and a voting rights of americans for disability act and women's right to choose an environmental protection agency and clean water act and television of the second amendment, of 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 made a mountain out of a molehill we have had a consistent line of people who are nominees to make references to their on backgrounds. we all have our perspective. justice o'connor talked about her life experience, justice alito talked about his family

suffering from ethnic slurs, justice thomas pinpoint georgia emphasized, talking about putting himself in the shoes of other people, and justice scalia talked about how being in a racial minority. the expectation would be that a woman would want to say something to assert her competence in a country which denied women the right to vote for decades, when the glass ceiling was limiting people, where there is still a disparagement of people on ethnic background. just this month in a suburb in philadelphia hispanic children were denied access to a pool and for whites only as were african-americans so i can see how someone would take pride in being a latino woman and

assertive so. a lot has been made of empathy, but that characteristic is not exactly how it plays in judicial determinations. we have, in a long way on the expansion of constitutional rights. the famous statement that the life of a long is experience, not logic. justice cardozo in connecticut talked about the changing values and the one court changed the constitution practically every day, of which i saw being in a district attorney's office which change certain season, miranda right to counsel, who would have thought it would take until 1963

to have the right to cancel union reverses wainwright? we have heard a lot of talk about the nomination proceeding of judge more and they have tried to make it into a verb of somebody being bored. anyone who looks of that record will see that it is very different. we had a situation in where judge bork was an advocate of original intent from his days writing the law review article in the indiana law review. and how can you have an original intent and the 18th amendment was written by a senate on april protection which were segregated or were you have a and judge bork who blame to equal protection alive only to raise and ethnicity and didn't even apply to women. that was a very thorough hearing.

i spent beyond a hearing days in three long sessions five hours with judge bork said it was his own approach to the law which result in their. like to have had an evolution of constitutional law which i find it puts empathy in of cape status and category. now on to the issues. i'm lynn -- i began within the area of cases which the court has decided not to decide in those cases can be even more important than any other cases which the court decides. the docket of accord at the present time is very different from the last century. 1886 the docket had 1396 cases

decided 451. one hundred years later there were only 161 signed opinions in 1985. 2007 only 67 signed opinions. during his confirmation hearings chief justice roberts said the court could contribute more to the clarity and uniformity of the loft by taking more cases. judge sotomayor comedy you agree with that statement by chief justice riss? >> i know senator specter that there is a question of by many people including senators and yourself of justice roberts and other nominees about this issue. canaccord take on more? to the extent that there is concern about its, not that public opinion should try and

the justices to take more cases just to take them, but i think what justice roberts was saying is the core needs to think about is process used to ensure it is 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 until i have experienced the process. >> let me move on to another question. [laughter] >> one case that the court to not take involved the terraced surveillance program which i think arguably posed the greatest conflict between congressional powers under article one in enacting the form surveillance act which provided for the exclusive way to get wiretaps. the president is regarded that in a secret program, the terrace

surveillance program. didn't even tell the chairman of the judiciary committee which is the required practice were accepted practice, did not tell the intelligence community's with the law mandates that they be told about such programs to fully disclose by the new york times. those practices confront us today with reports about many other secret cases not disclosed. of the federal district court of detroit's found in the terraced surveillance program unconstitutional. six the circuit in a 221 opinion said there was no standing. the dissent i think pretty conclusively had a much better standing. the supreme court of the united states denied it, did not even

take the case to the extent of deciding whether it shouldn't take it because of lack of standing. i wrote you a letter about this, wrote a series of letters and a new dance noticed that would ask you about this case. i am not asking you how you would decide the case but when into a dream 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 you -- >> is sure is, i was a chairman who was not notified and he was the ranking member who wasn't notified. >> i can understand not only congress or your personal frustration and sometimes citizens when there are important issues that they would like the court to consider.

and the question becomes what do i do if you give me the honor to serve on the court, and i say something today is that going to make a statement about how i am going to prejudge somebody else. >> i would like to know your status for taking the case. if you have that kind of a monumental historic conflict of the accord is supposed to decide conflicts between executive and legislative branches, how could it possibly be justified not to take that case it? >> hair often from what i understand and that is from my review of supreme court actions and the case as of situations in which they have or have not taken cases and i have read some of their reasoning as to this. i know that with some important issues they want to make sure that there isn't a procedural

part to the case of some type that would take away from whether they are, in fact, doing what they would want to do. >> was there a procedure from var? you have had weeks to mull that over because i gave notice. >> senator, i am sorry. i did not mall this over. my problem is that without looking at a particular issue and considering the discussion of potential calling is to the reason why particular issue should or should not be considered -- >> i will wait for an answer. on a woman's right to choose, the circuit judge in the case of richmond medical center send a that case seeresses planned parenthood was super star a

decisive. do you agree with levon? >> i don't use the word of super. i know how to take that word. all presidents of the court is entitled to in their respect of the doctrine of satre decisis. can i do think that roe versus wade has added weight on satre decisis to protect a woman's right to choose? by virtue of a casey versus planned parenthood and as the judge said? >> that is one of the factors that i believe courts have used to consider the issue of whether or not a new direction should be taken the law. there is a variety of different factors the court uses, not just want to wreck that is one, how about the fact that the supreme court of the united states has had a 38 cases after roe versus

wade where a kind of reverse roe versus wade. would that have added weight to the impact of a roe versus wade on satre 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 among one of the factors as many then a court would likely consider. each situation, however is considered in a variety of different viewpoints and i give as but most of for the factors of the court applies to this question of should precedent be altered in a way. >> more than 30 cases lend a little extra support to the impact of roe and casey where

the courts have the issue before and could have overruled it? >> in casey is applied in warrant an opinion offered by justice souter talked about the factors that a court thinks about and whether to change precedent. and among them the issues of whether or not or how much reliance in society has placed in the prior precedent, what are the costs that would be occasioned by changing its was the rule workable or not. have either actual or doctrinal basis of the prior precedent altered either from developments in related areas of law or not to cancel a re-examination of the question and the court has considered in