arisen and what actions the high court has or has not taken with court has or has not taken with respect to that. suddenly the supreme court of the united states found a new test called con gruns and proporti proportionalty. up to that time, judge harlan's

judgment on rational basis of what congress would decide would be sufficient and here for the benefit of our television audience, we are talking about a record that the congress maintains, take the americans for disabilities act, for example. where there was a task force of field hearings in every state attended by more than 30,000 people including thousands who had experienced discrimination with roughly 300 examples of discrimination by state governments. notwithstanding that vast record, the supreme court of the united states in alabama versus garrett found title ii of the americans with disable act unconstitutional. justice scalia in dissent said that it was a quote flabby test, that it was, quote, an

invitation to judicial arbitrariness and policy-driven decision making. the other title i of the americans with disability act in lane versus tennessee, the court found it constitutional on the same record. in a second round, if we have time, i will ask you -- give you some advance notice although i wrote you about these cases. if you can find a distinction on the supreme court's determination but my question to you is, looking at this brand new standard of proportionality and con gruns for whatever those words mean and if we have time in the second round, i'll ask you to define them but there's other questions i want to come to you.

do you agree with justice scalia that it's a flabby test and that with having such a vague standard the court can do anything it wants and really engages in policy-driven decision making which means the court in effect legislates? >> senator, the question of whether i agree with a view of a particular justice or not is not something that i can say in terms of the next case. in the next case that the court will look at and a challenge to a particular congressional statute -- >> well, not the next case. this case. you have the two cases. they have the same factual record and the supreme court in effect legislates. tells us what is right and what is wrong on this standard that nobody can understand.

>> as i understand the congruents and proportionality test, it is the supreme court's holding on that test as i understand it that there is an obligation on the court to ensure that congress is working, legislating within its legislative powers. the issue is not -- and these are section five cases essentially which are the clause of the constitution under the 14th amendment that permits congress to legislate on issues involving violations of the 14th amendment. the court in those cases has not said that congress can't legislate. what it has looked at is the form of remedy congress can order -- >> it doesn't tell us how to -- let me move on to a voting

rights act case and just pose the case and ask you about it in the next round. when jeff justice roberts testified in his confirmation hearings, he was very differential to the congress, not so, i might add, when he decided the voting rights case. but when he appeared here three years ago, he said this and it's worth reading. i appreciate very much the differences in institutional competence between the judiciary and the congress when it comes to basic questions of fact finding. development of a record and also the authority to make the policy decisions about how to act on the basis of a particular record. it's not just disagreement over a record. it is a question of whose job it is to make a determination based on the record. as a judge, you may have the

beginning to transgresz into the area of make ago law when you are in a position of re-evaluating legislative findings because that doesn't look like a judicial function. that's about as differential as you can be when you're a nominee. but when chief justice roberts presided over the voting rights act case, he sounded very, very different. my question to you is, do you agree with what chief justice roberts said when he was just judge roberts, that it's an area of making laws to trance gres into what congress has done by way of finding the facts? >> i would find it difficult to agree with someone else's words. i can tell you how much i understand the deference that congress is owed. and i can point to you at least

to two cases and there are many, many more that shows how much i value the fact that we are courts that must give deference to congress in the fields within its constitutional power? >> do you agree with chief justice roberts? i send you that quotation and told you i would ask you about it. do you agree or snot. >> i can't speak about what he intended to say -- >> not what he intended to say, what he did say. >> i heard what he said, sir, but i don't know what he intended in that description. i do know what i can say, which is that i do understand the importance to congress' factual finding. that my cases and my approach in my cases reflect that. i've had any number of case

where is the question was deference to congressional findings and i have upheld statutes because of that deference. >> is there anything the senate or congress can do if a nominee says one thing, seat of that table and does something exactly the opposite once they walk across the street? >> that, in fact, is one of the beauties of the constitutional system which is -- >> beauty? >> you have a separation of -- >> beauty in the eyes of beholder. it is only constitutionality there. >> the only advantage you have in my case is that i have a 17-year record that i think demonstrates how i approach the law and the deference with which or the deference i give to the other branches of government. >> i think your record is exemplary, judge sotomayor,

exempla exemplary. not commenting about your answers but your record is exemplary. let me -- and you'll be judged more on your record than on your answers, judge sotomayor. and for those who are uninitiated, your preparation appropriately is very careful. they call them murder boards at the white house. i don't know what you did and i'm not asking. we have had a lot of commentary and you study the questions and you study the record and your qualifications as a witness is terrific and in accordance with the precedence. you're following the precedents there very closely. let me move to television in the courts. and it is a question that many of us are interested in. i have introduced legislation twice, come out of committee

twice to require the court to televise. court doesn't have to listen to congress. the court can say separation of powers precludes our saying anything. but the congress does have administrative, procedural jurisdiction. we decide the court convenes the first monday in october. we decide there are nine justices. we tried to make it 15 once. six justices for a quorum, it set tra. telling the court to move a certain speed. habeus corpus. on time limits. justice stephens has said that it's worth a try. justice ginsburg one time said that if it was gavel to gavel, it would be five. justice kennedy said it was inevitable. the record of the justices

appearing on television is extensive. chief justice roberts and justice stefbs want prime time abc. justice breyer on fox news and so forth down the line. we all know that the senate and house are televised. we all know the tremendous, tremendous interest in your nominating process. and it happens all the time. there's a lot of public interest. but the court is the least accountable. in fact, you might say the court is unaccountable. when the bush versus gore we decided then senator biden and i wrote to chief justice rehnquist asking that television be permitted. got back a prompt answer, no. that was quite a scene across

the street. the television trucks were enormous, just all over the place. you had to be the chairman of the committee to get a seat inside the chamber. the supreme court decides all the cutting edge questions of the day. right of women to choose, abortion, death penalty, organized crime. every cutting-edge question. and bush versus gore was probably the biggest, one of the biggest cases, arguably the biggest case. more than 100 million people voted in the election. and the presidency was decided by one vote. and justice scalia had this to say about irreparable harm. the counting of votes that are of questionable legality does in my view threaten irreparable harm to referring to president bush or candidate bush. and to the country by casting a cloud upon what he claims to be

the legitimacy of the election. permitting the court to proceed on that erroneous basis will prevent an account, an accurate recount from being conducted on a basis later. hard to understand what recount there is going to be later. i wrote about it at the time saying that i thought it was an atrocious accounting of irreparable harm. hard to calculate, hard to calculate that. and my question, judge sotomayor, shouldn't the american people have access to what is happening in the supreme court, try to understand it, have access to what the judges do by way of their workload?

by way of their activities when they adjourn in june and reconvene in october. this year, in september. wouldn't it be more appropriate in a democracy to let the people take a look inside the court through television? supreme court said in the richmond newspaper case decades ago that it wasn't just the accused that had a right to the public trial but the press and the public, as well. and now, it is more the newspapers, television is really paramount. why not televise the court? >> as you know, when there have been options for me to participate in cameras in the courtroom, i have. and as i said to you when we met, senator, i will certainly relay those positive experiences if i become fortunate enough to be there to discuss it with my@

accurate now, it used to take a long time for them to make those transcripts available and now they do it before the end of the day. it's an ongoing process of discussion. >> thank you, judge sotomayor. thank you, mr. chairman. >> senator specter. in the last of our -- this round of questioning will be senator franken, the newest member of the committee.

senator, i didn't officially welcome you the other day as i should have with the numbers but welcome to the committee. i offer you congratulations and condolences at the same time. >> i'll take the congratulations. >> okay. then that was most heart felt. i'm glad you're here. please go ahead. >> thank you, mr. chairman, and thank you, judge sotomayor, for sitting here so patiently and for all of your thoughtful answers throughout the hearing. before lunch our senior senator of minnesota asked you why you became a prosecutor. and you mentioned perry mason. i was a big fan of perry mason. i watched perry mason every week with my dad and my mom and my brother. and we'd watch the clock and when we knew it was two minutes to the half hour that the real murderer would stand up and confess.

it was a great show. and it amazes me that you want to become a prosecutor based on that show because in perry mason, the prosecutor, burger, lost every week. >> once. >> with one exception which we'll get to later. but i think that says something about your determination to defie the odds. and while you were watching perry mason in the south bronx with your mom and your brother and i was -- i was watching perry mason in suburban minneapolis with my folks and my brother and here we are today. and i'm -- i'm asking you questions because you have been

nominated to be a justice of the united states supreme court. i think that's pretty cool. as i said in my opening statement, i see these proceedings as both as a way to take a judgment of you and the nominee's suitability of the high court but also a way for the americans to learn about the court and the impact on their lives. right now, people are getting more and more of their information on the internet. getting newspapers and television, blogs, radio. americans are getting all of it online. and plays a central role in our democracy by allowing anyone with a computer connected to the internet to publish their ideas, their thoughts, their opinions and reach a worldwide audience

of hundreds of millions of people in seconds. this is free speech. and this is essential to our democracy and to the democracy. we saw this in iran not long ago. now, judge, you're familiar with the supreme court's 2005 brand x decision, are you? >> i am. >> okay. well then you know that brand x deregulated internet access services allowing service providers to act as gate keepers to the internet even though the internet was originally government funded and built on the notion of common carriage and openness. in fact, we have already seen examples of these companies blocking access to the web and diskrcriminating on certain use of the internet.

this trend threatens the technology. let's say you're living in duluth, minnesota, and you have one internet service provider. the big mega corporation and not only are they the only internet service provider but they are also a content provider. they own newspapers. they own tv networks. they -- or network. they have a movie studio. they decide to speed up their own content and slow down other content. the brand x decision by the supreme court allows them to do this. and this isn't just duluth, it's moorhead, minnesota. it's youngstown, ohio. it's denver. it's san francisco.

and yes, it's new york. this is frightening. frightening to me and to millions of my constituents. lots of my constituents. internet connections use public resources. the public air waves, public rights of way. doesn't the american public have a compelling first amendment interest in ensuring that this can't happen and that the internet stays open and accessible, in other words, that the internet stays the internet? >> many describe the telephone as the revolutionary and it did change our country dramatically. so did television.

and its regulation of television and the rules that would apply to it were considered by congress and those regulations have because congress is the policy chooser on how items related to interstate commerce and communications operate. and that issue was reviewed by the courts in the context of the policy choices congress made. there is no question in my mind as a citizen that the internet has revolutionized communications in the united states. and there's no question that access to that is a question that society is -- that our citizens, as well as yourself,

are concerned about. but the role of the court is never to make the policy. it's to wait to congress acts. and then determine what congress has done in its constitutionality in light of that ruling. brand x as i understood it was a question of which government agency would regulate those providers. and the court looking at congress' legislation in these two areas determined that it thought it fit in one box, not the only. one agency instead of another. >> is this title i and title ii? or as i understand it title ii is subject to a lot of regulation and title i isn't? >> exactly. but the question was not so much stronger regulation or not

stronger regulation. it was which set of regulations given congress' choice control. obviously, congress may think that the regulations the court has in its hold iing interprete congress' intent and that congress thinks the court got it wrong. we're talking about statutory interpretation and congress' ability to alter the court's understanding by changing the statute as it chooses. this is not to say i minimize the concerns you express. access to internet, given its importance in everything today, most businesses depend on it. most individuals find their information. the children in my life virtually live on it now.

and so its importance implicates a lot of different questions. freedom of speech. freedom with respect to property rights. government regulation. there's just so many issues that get implicated by the internet that what the court can do is not choose the policy. it just has to go by interpreting each statute and trying to figure out what congress intends. >> i understand that but isn't there a compelling first amendment right here for people? no matter what congress does, and i would urge my colleagues to take this up and write legislation that i would like. but isn't there a compelling, overriding first amendment right here for americans to have access to the internet? >> rights by a court are not looked at overriding. >> okay. >> in the sense that i think a

citizen and not -- or a citizen would think about it. should this go first or should a competing right go second? rights are rights. and what the court looks at is how congress balanced those rights in a particular situation. and then judges whether that balance is within constitutional boundary. pulling one more compelling than the other suggests there's property interests less important than first amendment interests. that's not the comparison a court makes. comparison court makes starts with what balance does congress choose first and then look at that and see if it's constitutional. >> okay. so we got some work to do on this. i want to get into judicial activism. i brought this up in my opening statement. as i see it, there's kind of an

impoverishment with the discourse with the judiciary. i'm talking in politics. when candidates or office holders talk about the -- what kind of judge they want, it is very often reduced to i don't want an activist judge. i don't want a judge to legislate. that's sort of it. that's it. it's 30-second sound bite. as i and a couple of other senators mentioned during our opening statements, judicial activism has become a code word for judges that you just don't agree with. judge, what is your definition of judicial activism? >> it is not a term i use. i don't use the term because i don't describe the work that judges do in that way.

i assume the good faith of judges in their approach to the law which is that each one of us is attempting to interpret the law according to principles of statutory construction and other guiding legal principles and to come in good faith to an outcome that we believe is directed by law. when i say we believe, hopefully we all go through the process of reasoning it out and coming to a conclusion in accord dance with the principles of law. i think you are right that one of the problems with this process is that people think of activism as the wrong conclusion in light of policy. but hopefully judges and i know that i don't approach judging in this way at all, are not

imposing policy choices in or their views of the world or their views of how things should be done. that would be judicial activism in my sense o if a judge is doing something improper like that. but i don't use that word because that's something different than what i consider to be the process of judging which is each judge coming to each situation trying to figure out what the law means. applying it to the particular facts before that judge. >> okay. you don't use that word or that phrase but in political discourse about the role judici almost the only phrase that's ever used. and i think that there's been an ominous increase in what i@@@@@r r

vote shall not be denied or aprivileged by the united states or by any state on account of race, color or previous condition of servitude. section 2. this one is important. the congress shall have power to enforce this article by

appropriate legislation. the congress. well, congress used that power, the pow eer investested under seven 2 when it passed the voting rights act of 1965. now, the voting rights act has an especially strong provision, section 5 that requires states with a history of discrimination to get preapproval from the justice department on any changes that they make in their voting regulations. congress has reauthorized this four times, as recently as -- last time was 2006, and the senate supported it by a vote of 98-0. every single senator from the state covered by section 5 voted to reauthorize it. so now it's 2009 and we have this case, the northwest austin utility district number one. and justice thomas votes to hold section 5 unconstitutional. he said it went beyond the m

mandate of the 15th amendment because it wasn't necessary anymore. that's what he said. now, when i read the 15th amendment, it doesn't contain any limits on congress's power. it just says that we have it. it doesn't say if necessary, the congress shall have power to enforce this article. it just says that we have the power. so it is my understanding that the 15th amendment contains a very strong, very explicit and unambiguous grant of power to the congress and because of that, the courts should pay greater deference to it. and my question is, is that your view? >> as you know, some of the justices in that recent decision expressed the view that the court should take up the constitutionality of the voting

rights act and refew its continuing necessity. justice thomas expressed his view. that very question, given the decision and the fact that it left that issue open is a very clear indication that that's a question that the courts are going to be addressing. if not immediately in the supreme court, certainly the lower courts. and so expressing a view, agreeing with one person in that decision or another, suggests i have made a prejudgment on this question. >> so ma that methat means you' going to tell us. i didn't mean to finish your sentence. but i just think that's where you're going. >> all i can say to you is i have one decision among many, but one decision on the voting

rights act, the recent reauthorization by congress. but a prior amendment, where i suggested that these issues needed -- issues of changes in the voting rights act should be left to congress in the first instance. my jurisprudence shows the degree to which i give deference to congress' findings, whether in a particular situation that compels or doesn't or leads to a particular result is not something that i can opine on, because -- particularly the issue you're addressing right now is likely to be considered by the courts. the aba rule says no judge should make comments on the merits of any pending or impending case, and this clearly would be an impending case. >> okay.

it's fair to say, though, in your own decision, you gave deference to congress, just like you answered my neutrality thing saying it's up to congress. it feels like this is very explicitly up to congress. >> i gave deference to the exact language that congress had used in the voting rights act and how it applied to a challenge in that case. >> okay. now, voting overturned legislation to me it seems to be leads to one definition of what people understand as judicial activism. but i want to talk about some cases that i've seen that show judicial activism functioning on a more pernicious level. first, let's take a look at a case called gross vfbl financial services that the supreme court issued last month. are you familiar with that? >> i am. >> now, gross involved the age discrimination in the employment act or aeda.

you could bring an age discrimination suit whenever you could show that age was one of the factors an employer considered in choosing to fire you. when the supreme court agreed to hear the case, it said it would consider just one question -- whether you needed direct evidence of age discrimination to bring this kind of lawsuit or whether indirect evidence would suffice. that's the issue that they said that they would consider when they took the case. but when the supreme court handed down its decision, it ruled on a much larger matter. whether a worker could bring a suit under aeda, if age was only one of several reasons for being demoted or fired. the supreme court barred these suits, saying that only suits alleging that age was the determinative factor could be brought. this as significantly eroded

workers rights by making it much harder for workers to defend themselves against age discrimination, including getting fired just before they would have seen a large increase in their pension. you were fired because your pension is going to increase soon. so this is a big deal. when you go to court to defend your rights, you have to know what rights you're defending. the parties in the gross case thought they were talking about what kind of evidence was necessary in a discrimination suit. then the court just said no, we're banning that kind of suit altogether. i think that's unfair to everyone involved. it's especially unfair to the man trying to bring the discrimination suit. so let me ask you a couple of questions on this. first, as an appellate court judge, how often have you decided a case on an argument or a question that the parties have not briefed?

>> i don't think i have because to the extent that the parties have not raised an issue and the circuit court for some reason, the panel has thought that it was pertinent, most often that happens on questions of jurisdiction, can the court hear this case at all. then you issue -- or we have issued a direction to the parties to brief that question. so it is briefed and part of the argument that's raised. there are issued that the parties briefed that the briefing itself raises the issue for the court to consider. so it's generally the practice, at least on the second circuit is to give a party an opportunity to be heard on a question. and we also have a procedure on

the circuit that would give a party to be heard because they can also file the petitions for rehearing, which is the panel enters a decision that the party disagrees with and thinks the court has not given it an adequate opportunity to present its arguments. then it can file that at the circuit. i don't have -- i am familiar with the northwest case. i am familiar with the holding of that case. i'm a little less familiar and didn't pay as much attention to the briefing issue. >> with gross. >> i do know there with the brand x case, which the court said it was attempting to do is to discern what congress' intent was under the aeda, whether it

intended to consider mixed moesive or not as a factor in applying the statute. and the majority, as i understood it was, look, congress amended title 7 to set forth the mixed motive framework and directed the courts to apply that framework in the future. but having amended that, it didn't apply that amendment to the age discrimination statute. and so that would end up in a similar situation to the brand x case which is to the extent that congress determines that it does want mixed motive to be a part of that analysis that it would have the opportunity, and does have the opportunity to do what it did in title 7, which is to amendment the act. >> title 7, they amended the act because they had to.

they were forced to, right? congress was compelled to in a sense. but not on the aeda. >> i don't like characterizing the reasons for why congress acts or -- >> okay, okay. let me jump ahead to something. yesterday a member of this committee asked you a few times whether the word abortion appears in the constitution. >> and you agreed that no, the word abortion is not in the constitution. are the words birth control in the constitution? >> no,sir. >> are you sure? >> yes, sir. >> are the words privacy in the constitution? or the word? >> the word privacy is not. >> senators feinstein raised issue of privacy, but i want to hit this head-on.

do you believe that the constitution contains a fundamental right to privacy? >> it contains, as has been recognized by the courts for over 90 years certain rights under the liberty provision of the due process clause that extends to the right to privacy in certain situations. it started with a recognition that parents have a right to direct the education of their children and that the state could not force parents to send their children to public schools or to bar their children from being educated in ways a state found objectionable. obviously states do regulate the content of education, at least in terms of requiring certain things with respect to education, but i don't think the supreme court has considered.

but that basic right to privacy has been recognized and was recogniz recognized, and there have been other decisions. >> so the issue of whether a word actually appears in the constitution is not really el vant, is it? >> certainly there are some very specific words in the constitution that have to be given direct application. there's some direct command by the constitution. senators have to be a certain age to be senators. so you've got to do what those words say. but the constitution is written in broad terms, and what a court does is then look at how those terms apply to a particular factual setting before it. >> okay. in roe v. wade the court decided

right to privacy means it's a person's right to decide whether or not to have an abortion. and that's been upheld and ruled on many times. do you believe the right to privacy includes the right to have an abortion? >> the court has said in many cases, and as i think as has been repeated in the court's jurisprudence that there is a right to privacy that women have with respect to the termination of their pregnancies in certain situations. >> we're going to have round two so i'll ask you more questions there. what was the one case in perry mason that -- >> i wish i remember the name of the episode but i don't. i just was always struck that

there was only one case where his client was actually guilty. and -- >> and you don't remember that case pop i know i should remember the name of it but i haven't looked at the episode. >> didn't the white house prepare you? for that? >> you're right. but i was spending a lot of time on reviewing cases. no,sir, but i do have that stark memory because like you i watched it all of the time. every week as well. i just couldn't interest my mother the nurse and my brother the doctor to do it with me. >> oh, okay. our whole family watched it because there was no internet at the time, you and i were watching it at the same time. and i thank you and i guess i'm talk to you in the follow-up. >> thank you. >> is the senator from minnesota going to tell us which episode that was? >> i don't know. that's why i was asking.

if i knew i wouldn't have asked her. >> so because of that, judge, we will not hold your inability to answer the question against you. now, i just discussed this with senator sessions but i make the formal request. is there an objection to go into a closed session. every nominee back since chairman biden was a chairman of this committee. >> i think that's the right thing to do and there will be no objection that i know of. >> thank you very much. i appreciate that comment, so hearing none, the committee will proceed to a closed session and we will resume the public hearings later this afternoon. and for the sake of those who have to handle all electronic kind of things, we'll try and give you enough of a heads-up.

we'll stand in recess. t nominee sotomayor is back in the room and senator leahy is in his seat. >> thank you. and i thank everybody else for the cooperation. we are now -- we finished our first round of questions.

we will have one round more where senators can ask up to 20 minutes each. i would put the emphasis on the up to and hope we don't need more than that. but i'm certainly not going to cut off anybody less than the 20 minutes. i'm going to put two letters in the record. first it's a letter of endorsement from the national hispanic christian leadership conference serving approximately 16 million hispanic american born-again christians and 25,434 member churches. the ceo of the national hispanic leadership conference writes that judge sotomayor stands as a model to all our hispanic young people throughout america that faith, family and education can overcome the most difficult of environments and economic circumstances. the right

[ inaudible ]

>> well, i think mine works. i'll change places with you.

>> judge, why don't we try it again. all right. >> can't hear you. >> this is not working either? >> come on, al, why you have a chance. that's the quickest rise of any senator in history.

>> i shouldn't do this. >> stay right there. restraint, moderation necessary appropriate for the application of the rule of law and without a doubt, judge sotomayor serves as a moderate voice without displays of biased based on affiliation, background, sex, color or religion. the letter concludes even moderate and conservative, you paint angel calls within our ranks. by no reason to conclude the nomination and confirmation of judge sotomayor would diminish the collective application of constitutional rights and freedoms to a religious community committed to life, liberty and the pursuit of the happiness. it goes on to urge us to confirm you. secondly, the committee has received a joint letter of support for judge sotomayor's nomination for more than 1,200

law professors, all 50 states and the district of columbia as well as the american society of law teachers. and they write, for opinions, we reflect attention to the facts of each case and the reading of the law that demonstrates fidelity to the protected statutes and constitution. she plays close attention to precedent. she has proper respect for the role of courts and other branches of ghovt in our society. far from being an activist judge, you judge, sotomayor, decide taste kaiss on the bases of her understanding to law, applicable legal principles. we'll put those letters in the record. and now i will try one more time to see if the microphone will work before my friends in the press get too -- >> chairman, i believe you were not on the clock then, is that right? i would like to offer a few

documents for the record, if that would be all right. >> the port chester condemnation case where the judge proved the taking of a property that was going to have one drugstore built on it so another company cowl build on it. the family research council letter, raising serious concerns and they stand in opposition to the nomination. concerned women of america rite writhe in opposition to this nomination. and i offer that into the record. the american sentser for law and justice expressing concerns about the nomination.

and americans united for life have written about the nomination as well as the gun owners of america. i would just offer those for the record at this time, mr. chairman. >> and without objection, they will be included in the record. that time will not count against senator sessions or myself. now, on the clock, judge, one need look no further than lilly ledbetter or the diana levine case, the woman from vermont to understand the impact each supreme court case has on the lives and freedoms of countless americans. in lilly ledbetter's case, five justices on the supreme court struck a severe blow to the right of working families across our country. it required the congress to pass legislation, basically

overruling the supreme court case to say yes, women should be paid the same as men. justice ginsberg's dissent in that case criticized the narrow majority for making a cramped interpretation of our civil rights law. a different context on the three-suj panel involve strip searches of girls in a juvenile detention senter. the parents of two girls challenged the policy strip searching all those admitted to juvenile detention centers as a violation of fourth amendment prohibition against unreasonable searches. two of the male colleagues upheld that search. in a dissent you cite a controlling circuit precedent. describe what's involved in the strip search of these girls without individual suspicion, who have never been charged with a crime and warn that courts should be especially wary of

strip searches of children, since youth is a time and condition in life when a person may be most susceptible to influence and psychological damage. as a parent and a grandparent, i agree with you. you also emphasize that many of these girls had been victims of abuse and neglect and may be more vulnerable mentally and emotionally than other youths their age. the supreme court recently considered a similar case involving an intrusive strip search of a young savannah redding because school officials were looking for ibuprofen tablets. during oral argument in that case, one of the male justices compared the girl's strip search to changing for gym class. several of the other justices' reaction was simply laughter. justice ginsberg, the soul

female justice described the search as humiliating. something most parents realize. justice souter upheld the decision. we spent several times here citing cases doesn't just take a computer. other wise we need real people. it does need real-life experiences. you are a role model and a mentor to many young people. we've heard that in all kinds of letters and statements. how do you think it affects these young people to see only one woman on the supreme court today? how might it affect the

confidence in the judicial system of litigants like young savannah redding? >> senator, i think to it's one of the reasons that every president in the last two or 25 years have attempted to promote diversity on a basic understanding that our society is enriched by its confidence that our legal system is -- includes all members of society. i know that justice ginsberg has spoken about the facts of how  much he misses justice o'connor, and not because she does not have a good relationship with her colleagues. i understand that she@@@@r ,v' ü r

opportunity -- in fact, my wife and i had an opportunity, i was

in georgetown law school. we had lunch with hugo black. one of the most memorable times i had in my law school career. now, hugo black went on there as a former senator. he recognized the constitution's guarantee to counsel in a criminal case was a fundamental right to a fair trial. he called it an obvious truth and an adversary system of criminal justice, any person hauled into court who is too poor to hire a lawyer can't have a fair trial unless counsel is provided for him. there's a wonderful book "gideon's trum mepet" that anth lewis wrote. i still have that book. i can almost recite word for word that book. so i'm going to ask you the same i asked then judge roberts.

doesn't gideon stand for the principle that to be meaningful, such a fundamental right as a right to counsel require ace shurnss that it can be exercised? >> that is a of the holding of gideon. it has been reaffirmed in terms of the right to counsel, not only the right to counsel in the representation of criminal issues but the court has recognized that right with respect to a competent counsel, the question of whether incompetent counsel has caused defendant damage is assessed under a legal standard. but the question is the right to counsel was the core holding of gideon. >> if the constitution guarantees a person the ability to exercise a certain

fundamental constitutional right of whatever it might be, and they say, the court says they are guaranteed that right, these rights are only meaningful if an american can then enforce those rights in a court. is that not correct? >> their rights are meaningful and they are rights that we work at ensuring are given meaning in the courts. i know for a fact that one of the activities -- i know for a fact, i know because i lived it -- when i became a judge on the second circuit, i was given responsibility for the second circuit's committee on the criminal justice act and pro bono service. generally, the chair of that committee is the most recent addition to the court and immediately upon the confirmation of another judge, that judge takes off over the

chairpersonship. i, because of my belief in the meaningfulness of representation and its importance to the justice system, have held that position probably for the longest judge in the second circuit, with the agreement of judges who came after me, i served as the chair of that committee. i don't remember exactly the number of years, but it was certainly a very long period of time. and i worked very hard to improve both the processes of selection of criminal justice act attorneys, those are the attorneys that represent indigent defendants in criminal actions, and to ensure that there was adequate review of their qualifications and regular review of their performance. >> i don't want to put words in your mouth but is it safe to say that if you have a

constitutional right as a practical effect, that only works if you can enforce that constitutional right? >> clearly. in terms of the -- it's given meaning through actions and actions by the legislature, who have provided funds for the retention of qualified counsel and the court's obligation to ensure that that right is meaningful. >> thank you. i have used just barely over half my time. i will reserve time. senator sessions? i hope that sets an example. >> i'm impressed, mr. chairman. thank you. you know, we talked a little earlier about judicial activism. we have a good definition. our former chairman, senator hatch, has given us a definition

for a number of years and that is when a judge allows their personal, political or other biases to overcome their commitment to the rule of law. that's not as well as he said it. that's pretty close. i think -- but i think -- and you can have, senator franken, a liberal or conservative activist judge, and judges need to be watched as we all do, to make sure that they stay faithful to the law. i really believe in this legal system. i think it's so fabulous. i traveled the world with the armed services committee and i see these countries, it just breaks your heart. you think you can go in and write a code of law and they can make it work, and you can write them all day but making it actually be real in every village, hamlet, farm and city in these countries is so, so hard. we are so blessed. i just want to say, judge, i appreciate you and look forward to questioning and -- but i just, my approach is try to do

the best thing we can for america and this fabulous system we've got. i think our side is committed to being fair throughout this hearing and try to be thoughtful in our questions. nobody's perfect but i think everybody's done a pretty good job at that. i have listened to your testimony carefully, look add some transcripts and i have to say i'm still concerned about some of the issues that have been raised. you're seeking a lifetime appointment. this is the one chance we have to ask those questions and we must do that. with regard to the wise latina quote, where you said they should make decisions that are better than a white male, and the question of justice o'connor's comment about a wise old woman and a wise old man

would reach the same conclusion. i would just say there's a difference, both may well be a rhetorical flourish or rhetorical approach to stating a truth, but i think justice o'connor's approach in truth was that judges under the american ideal should reach the same decision if they can put aside all their biases and prejudices, and you seem to say in your approach and throughout that speech that backgrounds, sympathies and prejudices can impact how you rule and you could expect a different outcome. how would you respond to that? >> senator, i want to give you complete assurance that i agree with senator hatch on his

definition of activism. if that's his definition, that judges should not be using their personal biases, their personal experiences, their personal prejudices in reaching decision and that's how he defines activism, then i'm in full agreement with him. to the extent that my words have led some to believe that i think a particular group is better than another in reaching a decision based on their experiences, my rhetorical device failed. it failed because it left an impression that i believe something that i don't, and as i have indicated, it was a bad choice of words by me, because it left an impression that has offended people and has left an impression that i didn't intend. as i indicated earlier --

>> did it not, could i briefly interrupt, did it not suggest that your approach to the question of objectivity and commitment to it was different than justice o'connor's? didn't you cite it in opposition to her view? >> as i -- i can explain it is that i didn't understand her to mean that she thought that if two judges reached a different conclusion, that one of them was unwise because as judges disagree as to conclusions, and i know that there's an aspiration that the law would be so certain that that would never happen, but it's not that certain. laws are not written clearly on occasion by congress. courts apply principles of

construction that suggest an approach to a particular set of facts that might differ. all of that doesn't make one or the other judge wise. >> i would agree with that. i think one judge, you can have honest disagreement. i think she was expressing the ideal that if everybody were perfectly wise, they may reach the same decision. with regard to the second amendment, this is a hugely important issue. isn't it true, judge, that the decision that you and your panel rendered, if it were to be the law of the united states and if it is not reversed by the u.s. supreme court, would say that the second amendment is subject to -- the second amendment does not protect the right of the people to keep and bear arms in any city, county and state in america. that is that new york or atlanta or philadelphia or houston, los

angeles or any state in between could pass a law that barred firearms within those states? and isn't this a really big issue right now for the united states supreme court coming up soon? >> it may well come up, and i'm not familiar enough with the regulations in all 50 states to know whether there's an absolute prohibition in any one city or state against the possession of firearms. all i can speak about is that as in the case the panel looked at, the question for the court would not be whether the government action in isolation is constitutional or not. the question -- in isolation. it would be what's the nature of the government interest in the statute it's passing and

depending -- >> that's the rational basis test? >> exactly. >> well, but the rational basis test could very well be fairly interpreted to say that since guns kill people, it's rational for a city to vote to eliminate all guns. i would just say to you, isn't it true that if a city could pass that very low test, they could ban firearms if your decision is not reversed by the supreme court. >> because that question of incorporation before the court will arise, i don't feel that i can comment on the merits of the hypothetical. all i can say is regardless of what standard of review the court uses, it has struck down regulations under every standard of review used, whether it's rational basis or in some instances, strict scrutiny, et cetera.

there is the constitutional -- >> judge, i would just say that you held and following some law in the 1800s, you held that the second amendment does not apply to the states, even though it uses the words the right of the people to keep and bear arms shall not be infringed. so i think we have -- this is a big issue. and in your opinion, you said it was settled law. you used some very strong language. you said it was not a fundamental right and you said that in your testimony earlier that in supreme court parlance, the right is not fundamental. you said that i believe to senator leahy in this hearing. so i guess my question is, have you made up your mind such that if you were on the supreme court and it was not your case that came up, and it could be your case, don't you feel that you should@@@@@@@ @ @ @ @ @ @ @ @ @

panel in maloney was whether the supreme court had said that, and

what the second circuit had said about that issue. >> had any other circuit said it was not a fundamental right other than your panel's decision? >> there is one circuit, the seventh circuit, in a decision written by judge easterbrook, who came to the same conclusion. >> did he say it was not a fundamental right, though, in that opinion? i don't believe they did. >> he may not have -- >> that was the question -- my question i was asking. so it's a problem for people. you ask about abortion. it's not explicitly referred to in the constitution, but you say that's a fundamental right. and we have in the constitution language that says the right of the people to keep and bear arms shall not be infringed, and there's a question about that, that it's not a fundamental right. i think that's what makes people worried about our courts and our legal system today and whether agendas are being promoted

through the law rather than just strictly following what the law says. >> senator, may i -- >> yes. >> -- address my use of the word fundamental. fundamental is a legal term that i didn't make up. it was the supreme court's term. and it used it in the context and uses it in the context of whether particular constitutional provision binds the states or not. so i wasn't using the word, i, the panel wasn't using the word in maloney in the sense of its ordinary meaning. >> oh, i know. you were using the constitutional, the legal meaning, but that's hugely important, because if it's not a fundamental right, it's not incorporated. isn't that correct? and it will not apply to the states fundamentally. isn't that the bottom line? >> well, when the court looks at that issue, it will decide is it

incorporated or not. and it will determine by applying the test that it has subsequent to its old precedent, whether or not it is fundamental and hence, incorporated. but the maloney decision was not addressing the merits of that question. it was addressing what precedent said on that issue. >> all right. we'll review that. on the question of foreign law, you yesterday said that -- said this. unless the statute requires or directs you to look at foreign law and some do, some statutes do, by the way, you go on to say quote, the answer is no, foreign law cannot be used as a holding or a precedent or to bind or influence the outcome of a legal

decision interpreting the constitution or american law. that's pretty good statement, i think. but this is what you said before in your speech to the american civil liberties union, actually in april, just two or three months ago in puerto rico, you said this, quote, international law and foreign law will be very important in a discussion of how we think about unsettled issues in our own legal system. it is my hope that judges everywhere will continue to do this because within the american legal system, we are commanded to interpret our law in the best way we can and that means looking to what anyone else has said to see if it has persuasive value. so that's troubling. now, you also said yesterday that you agreed with justice scalia and justice thomas on the point that one has to be very

cautious even in using foreign law with respect to things american law permits you to do. i don't think that's exactly correct, or a fair summary of the import of your speech. this is what you said before the aclu group a month or two ago. quote, and that misunderstanding about using foreign law is unfortunately endorsed by some of our supreme court justices, both unfortunately endorsed. both justice scalia and justice thomas have written extensively criticizing the use of foreign and international law in supreme court decisions. they have somewhat a valid point and you point that out, but then you go on to say but i think i share more the ideas of justice ginsburg and her thinking in believing that unless american courts are more open to discussing the ideas raised in foreign cases and by international cases, that we are

going to lose influence in the world, close quote. so everybody knows, there's been a fairly robust, roaring debate over this question. there are basically two sides. one led by justice ginsburg and one led by justice scalia and thomas. don't you think a fair reading of this statement is that you came down on the side of justice ginsburg? >> no, sir. because these conversations were in the context and discussions were in the context of my pointing out, just as she had, that foreign law can't be a holding. it can't be precedent. it can't be used in that way. she was talking about the way i was and what i said in my speech at the beginning and the end, ideas. what are you thinking about. judges use law review articles, they use statements by other

courts. the new york court of appeals in a recent case looked to foreign law to address an issue that it was considering, not in terms of a holding for the court, but a way of thinking about it that it would consider. my point is that i wasn't advocating that it should ever serve as precedent or ever serve as a holding. i was talking about the dialogue of ideas and -- >> well, you know, i just think that you laid out the two positions and you came down on one side, and i think that's a fair summary of that speech which others can read and make up their own mind. you were asked about the legal defense fund which you were a member and a member of the board for 12 years, and in response to senator graham's question, you say you had never seen any

briefs and that the main focus of your work at the organization was fund-raising. is that accurate? >> when i was responding to the senator, i was talking about the board in general. i belonged to many committees and so i did other things besides fund-raising. but i was beginning to explain what the structure of the board was and was the primary responsibility of board members is. but clearly, board members serve other functions. >> you didn't serve on the litigation committee and boards are supposed to and i would think legally required to superintend the activities of the organization they're a member of. then you have committees of the board who do various things. i'm looking at a june of '87

document, minutes of the board, the litigation committee. sonia sotomayor reported that the committee in addition to reviewing and recommending a litigation program had identified three initiatives. in october of '87, i'm just looking at some of the documents we were given, litigation report. quote, chairman sotomayor summarized the activities of the committee over the last several months which included the review of the litigation efforts of the past and present and initial exploration of potential areas of emphasis. member sotomayor advised that a preliminary report would be provided at january meeting. then at the january meeting, there's about a 50 page document summarizing 30 or more cases that the board had undertaken a number of them are pretty

significant and very consistent with the kind of case that we had in the firefighters case, where the board had filed litigation to really basically insist that you have perfect harmony between the applicants for a job and those who are selected for promotions. isn't that true that you were more active than you may have suggested to senator graham yesterday? >> no, because as i said, i started to describe the role of the board generally and we were not addressing the question of what i did or how i participated. that memo has to be examined in context. the memo was a moment in our 12-year history where the board was planning a retreat. to think about what direction, if any, we should consider moving into or not. we were not reviewing the individual cases to see if the individual cases, what positions

were taken, the type of strategies -- >> didn't you know the cases that -- the positions the organization was taking? well, my time was running out. >> let her finish answering the question. >> i'll let you answer. >> the end of my answer was the fund had been involved in a series of areas, employment, public health, education, and others. so the broader question for the fund was should we be considering some other areas of interest to the community. we held the retreat in which speakers from a variety of different civil rights organizations, academics, a number of people came and just talked to us. i don't actually remember there being a firm decision that followed that, but it was a part of a conversation, the sort of retreats that even my court has engaged in. what are we thinking about. but it wasn't the review of each

individual case to judge its merits. >> judge, there's been a lot of talk about the maloney case. i should note it is not what you said, it's what justice scalia's opinion for the supreme court says in his decision left in place the 123-year-old supreme court precedent on guns, did it not? >> justice scalia in a footnote in the heller decision noted the court's holding that the second amendment was incorporated -- >> the only reason i mention that, i've been a gun owner since i was 13 years old. i have seen nothing done by the supreme court by the second circuit court of appeals, by the congress or by our state legislature that is going to change one way or the other the ownership i have of the guns i now have. senator kohl? >> thank you very much, senator

leahy. judge sotomayor, you have told us that you will follow the law and follow precedent and you have made a very big point of this and that's all well and good. but some of the court's most important landmark hearings, landmark rules, overruled long-standing precedent like brown versus board of education, which ended legal segregation. as an appellate judge, as we know, you're required to always follow precedent but as a supreme court justice, you will have the freedom to depart from precedent. so tell us how you will decide when it is appropriate to alter, amend or even overrule precedent. >> the doctrine of stare decisis is a doctrine that looks to the value in the stability, consistency, predictability, of

precedent. and it starts from the principles that precedents are important values to the society because it helps those goals. it also guides judges in recognizing that those who have come before them, the judges who have looked at these issues, had applied careful thought to the question and viewed things in a certain way and a judge should exercise some humility and caution in disregarding the thoughts and conclusions of others who came in that position before them. but that's not to suggest that the doctrine says that precedent is immutable. and in fact, i believe the england had an experiment with that question and it was not horribly successful. aeg biaeb a@ @ @ @ %u)@ @ @ @h

there's to real importance to the order. because all are factors that you put in to the weighing as a judge looks at an existing precedent. it looks to whether whatever the court has said, is it providing enough guidance to the courts below and to -- and for people

to determine what they can or can't do. is the precedent administratively workable. number three, and as i said, there's no ordering to this, are the facts that the court assumed in its older precedents, have those changed so that it would raise the question about the court revisiting a precedent. also, there are developments in related fields to precedents and approaches that are developed in those cases that may bring into question the foundation of an older precedent. brown versus board of education has often been described as a radical change by some and the public perceives it as a radical change. when you actually look at its

history, you realize that there have been jurisprudence for over 20 years by the court striking down certain schemes that provided separate but equal but in fact didn't achieve their stated goal. and so there was underpinnings in brown versus board of education that in those precedents that came before brown, that obviously gave the court some cause, some reason to rethink this issue of separate but equal. they also had before them probably one of the most famous dissents in american history, which was the dissent by justice harlan. he so carefully laid out what the constitution said, what the

principles of the constitution were that motivated the congress to pass those amendments. he laid out the court's precedents in that area and he said separate but equal is just not consistent with the constitution. now, this is in an opinion where he described another group of people as different. and so it wasn't that he was being motivated by his personal views, he was being motivated by a view of the law that the court in brown made a change about. one final factor the court obviously looks at is the number of times a precedent has been reaffirmed by the court, but all of these things are decided on

the basis of judgment of a particular case and the arguments that are raised before a judge, and recognizing as a judge that precedent is deserving of deference. precedent and changing it should be done cautiously by a court. but precedent can't stand of other things that it not. >> i would like to return to the topic of antitrust. two years ago, justice souter wrote an opinion that sharply departed from precedent when it held this a plaintiff must show extensive evidence to support an antitrust case before the opportunity for any discovery. otherwise, the case will be dismissed. this decision makes it very difficult for any plaintiff to bring an antitrust action, particularly a consumer or small business without the resources

to develop extensive economic evidence. what is your assessment of this decision? do you share the concern of many that this does serious damage to enforcement of antitrust law? >> as with all issues of statutory construction, my charge as a judge would be how do i apply a court's holding in a particular case in the next situation before me. the concern that you express is one that i have heard about that case, expressed by some, but as a judge, i don't make policy. i don't make the policy choices for congress. i'm charged with looking at a particular situation that comes before me, looking at the court's precedents, and applying it to that situation.

with respect to that case, that case as i understand the case, had to do with how much had to be pled. i didn't understand it to mean that there had to be the presentation of evidence at the pleading stage, just what had to be pled to withstand the motion to dismiss in the case. >> well, my understanding of his decision is that in the future, plaintiffs must show extensive evidence to support an antitrust case before the opportunity for any discovery or else the case will be dismissed. now, assuming that's correct, and i'm not telling you i'm positive but assuming that's correct, does that cause you concern? >> as i said, the issue of

concern is not how i look at the court's precedents, because what i'm doing in looking at the court's precedentses is thinking about how it applies to another case. the question of how to do that and whether that's right by the court would be a question that congress, who has passed the antitrust laws, would have to in the first instance, think about changing. >> so then are you saying in a case that would follow, you would necessarily be bound by justice souter's decision in twamley? >> the court considers its various precedents in the context of a new situation. in the cases decided by the courts, they're applied to the facts of the particular case.

twamley is considered, as are all the court's precedents, in a new case that examines the issue of what a complaint must allege or not allege. >> so you would not be bound by the twamley precedent, is that what you're saying? >> no. it's precedent. >> so you would be bound? >> it must be applied as all the court's existing precedents that have not been rejected by the court. has to be considered, it has to be weighed in the situation presented. >> all right. i think maybe we can't talk about that subsequently to understand what you mean and what i'm saying. my reading of twamley versus your reading of twamley as it will affect future antitrust cases. my understanding is that it will have a very negative effect, negative impact, on the average person or small business' ability to bring an antitrust case that might otherwise have merit, because of the

requirement that they present enormous amounts of evidence, even before they can go to discovery, or the case is dismissed. if i'm speaking accurately, then i think that that's a precedent that needs to be thought about very carefully and that's why i asked the question. >> and senator, the one thing i do know as a judge is that every argument gets made to the courts, not on one occasion but many. the question that will arise is what's the extent of the court's application in the next case. >> all right. finally, judge, the supreme court not only has the power as you know to decide cases and to construe the constitution but it also has the sole and absolute power to decide which cases it hears. if you are confirmed, only you and three other judges, justices, can decide whether a case will be heard to begin with by the supreme court.

in recent times, the supreme court has received appeals in nearly 7,000 cases each year, and it only hears about 70 or 80 cases, as you know. in other words, the justices choose to hear only about 1% of the appeals that they receive. this is obviously a very, very crucial power that justices have. i recognize that one of the criteria for choosing cases is to resolve disagreement among the circuit courts about a particular aspect of the law. but many of the most important and prominent cases in the history of the supreme court did not involve splits in the circuit courts, but were instead cases of national importance. so how will you determine which cases are so important as to warrant review by the supreme court, in other words, which 1% of those appeals will you consider? >> what i know and you did

accurately describe one aspect of the supreme court's local rules that suggest that justices will consider a variety of factors in whether to grant cert or not, and one of those listed factors is disagreement among the circuits. disagreements among the circuits and circuits and state courts and issues that have not been adequately addressed but require being addressed for a variety of different reasons. it is very difficult to talk in the abstract about when cert should be granted, because each situation presents a different set of facts. and each question about whether a case is in the right posture to look at an issue, as i said

yesterday, sometimes -- i may have explained earlier in response to senator specter and i know that you have stepped away, there are procedural -- there are cases that present other arguments than the one that the circuit split exists on, and those other arguments might dispose of the case in the way the circuit court did and not necessitate the reaching of an issue. there's a question at least that some justices have defined it of whether there's been enough percolation among the circuit courts so that all of the views of a particular issue have been fully explored. the circumstances and the issues that each justice uses depends on the facts and the posture of what comes before it.

i would obviously consider the court's local rules. i would give consideration to the point that some have raised that the court is not doing enough but that can't counsel taking cases. that could only be look at the workload and see can the court do this if it meets all the other criteria that goes into the mixture of whether to grant cert or not. you don't, like congress, think about policy, we're going to decide 150 cases this year. you look at the cases that come before you and you figure out which ones are in a place to be reviewed. >> thank you. >> thank you very much. senator hatch, we'll turn to you, then we will take a break.

after you're finished. >> well, thank you, mr. chairman. i certainly appreciate your graciousness and patience that you've had throughout these proceedings. i almost feel guilty asking any questions but there are some things i would like to clarify and also, and also ask about. i think maybe somewhat helpful to you as well. i guess depending on how you answer them. let me just say this. to clear up that matter of the seventh circuit like yours said with regard to the whole issue on the validity of the incorporation doctrine, the footnote of justice scalia has been brought up here time and time again but let me just say that here's what that footnote says. it says with respect to crookshank. crookshank was a 19th century case, i think it was 1868. that used the privilege --

immunities clause of the 14th amendment to justify incorporation. here's what his footnote says. with respect to crookshank's continuing validity on incorporation, the question notz that but basically applied that.

he was only using the privilege and immunities clause and not the 14th amendment due process clause, which has been the way we've applied incorporation for well over, i think pretty close to a century now. that's the issue that's going to get to the supreme court. the ninth circuit got it right. so you can see why people who want to keep and bear arms consider this a very, very important issue, and how do you get to the doctrine of incorporation. i was trying to make that clear when we had our prior questions to you but let me go into judicial philosophy just a little bit more, because it's a broader issue of what your understanding of the power and role of judges in our system of government. in your opening statement on monday, you described your judicial philosophy with the phrase quote, fidelity to the law. unquote. i appreciate that and that phrase is shorthand but i think it does need some more development. you had some things to say about this the last time you were

before this committee. that was the confirmation hearing for your current position in the u.s. court of appeals. for example, you were asked whether you would read additional rights into the constitution. you responded that you cannot do that because it is contrary to what you are as a judge. you said that the constitution quote, is what it is, unquote. and the constitutional rights have already been created for us and that we cannot read more rights into it. do you still believe that today? after all this experience you've had on the circuit court? in other words, just to be clear, are you saying that judges cannot read new rights into the constitution? >> the constitution creates the rights. it's immutable. the right that the constitutions have created can't be added on to either by congress or except by amendment or by a court.

the question as i viewed it at the time i was asked that question was whether the court could now write a new right into the constitution. that's a different inquiry than whether a court in applying that right to a particular claimed interest under that right would protect that interest. >> sure. >> and so that is one of the misnomers about the right to privacy and when i say misnomer, it can be misleading because it's not -- i have not viewed what the court has been doing as creating a right that doesn't exist in the words of the constitution. what i understand the court to be saying is okay, there's the situation, someone's privacy is being affected by this

government regulation, does the right in the constitution, the liberty clause of the due process provision, protect the individual from that invasion of their privacy. people in shorthand have called this a right to privacy, but in my view, what the court is doing is saying states, police officers with the unreasonable search and seizures, they're not creating a new right of privacy, they're saying how does this right that exists in this provision and the constitution has these words, what does it mean in this actual setting. >> as you know, when they did the griswald case, there was no language right to privacy in the constitution. but they determined that they could find that.

at another point in the hearing, you said quote, i don't believe we should bend the constitution under any circumstances. it says what it says, unquote. now, you know, i think if you could, maybe you can describe some ways that the court can bend the constitution. >> i said you can't. the words are the words. the court can't be looking to ignore the words or to change them. what it does is apply those words to each situation. i stand by that answer today as i did then. the constitution has rights. >> agreed. >> they are some of them -- i'm sorry, senator. >> i think what i'm saying in light of the statement that i just asked you about, that we cannot read rights into the constitution as you have said. would you agree that the supreme court bends the constitution when it does read rights into the constitution?

>> what i understand the court to be doing in those situations in which it has recognized the protection of certain privacy interests and other interests, is that it's applied those broad words to the facts of the situation before them and has determined that that right as it's contained and expressed in the constitution, does apply to a certain set of facts. >> the court changed the meaning of the words to the constitution. >> courts can't change the meaning of the constitution. they can apply those words to the facts before them to see if the facts fall within the protection of the constitutional right at issue. >> okay. in marberry versus madison, the supreme court said the

constitution is intended to govern courts as well as legislatures. do you agree with that? that it governs both courts and legislatures, the constitution? >> the constitution limits the powers of all three branches. >> okay. can the constitution control judges if judges can change its meaning? >> as one of the senators has pointed out, it is often said that the supreme court is not fallible. it's infallible because it's final. in terms of the constitution, that is the function of the court. that is a function of checking or considering the acts of government, vis a vis an individual or a state.

the constitution, it's established by marberry, is interpreted by the court. >> one of my flow judiciary committee members was speaking recently on the senate floor and said the judges may perceive as he put it quote, the need for change, unquote. and may make some change with their decisions. is that an appropriate role for judges? >> as i have indicated, the role of judges is to interpret both the constitution and law. their role is to do both in accordance with their terms. and so that is the function of a judge. clearly a judge looks at the terms and tries to, if it's the constitution, what are the principles that underlie that provision of the constitution and it's informed by precedent, if it's a statute, you use

principles of statutory construction, starting always with the words. and you give effect to congress' intent. that's the role of a judge. >> okay. in a speech you gave in march 2006 at the university of puerto rico school of law, you said quote, i have often said that the basic difference between district court and circuit court judges is the district court judges do justice for the parties while circuit court judges do justice for the society as a whole. unquote. i think it's important we get what you mean by this, especially the way in which appeals court judges do justice for society. this is even more important in light of your comments at the law school that quote, the court of appeals is where policy is made, unquote. now, you have i think tried to distinguish that and in this increasingly broad trajectory of judicial power from the district court to the appeals court, from the parties to society, what does supreme court justice do

justice for? >> in that speech as well as the duke law school remark, they're all in the context of trying to describe to students or lawyers what the focus of the district court is and the circuit court, and all of them are talking about precedents. when i was talking about justice for society, i was talking about we're not looking at what the individual outcome is for the parties before the court the way that a district court is. a district court knows that its decision is not binding on anybody else. that is not an invitation for them to follow whim or fancy, but their focus is on this case, what does it mean, it's not affecting anybody else, i'm just going to decide this case, and in that speech, as with the duke

remark, looked at in the entirety of the comment, it is you're doing justice for society when you're establishing precedent because you realize that that precedent is going to bind the cases, so you're looking at the effect of those cases on other similar situations. you're looking, and i've described it this way to other students. you're looking at what the law is to announce it, recognizing that it's going to now affect other cases and other people. so your focus is different. district court's looking at the two parties. the circuit court's looking at the law and a holding about the law that will affect many people. >> okay. president george h.w. bush appointed you to the u.s. district court in 1992. i was here. about a year earlier, he

nominated clarence thomas to the united states supreme court, who, like you, was a u.s. circuit court judge. president bush described him as quote, delightful and warm, intelligent person, who has great empathy, unquote. president bush then said that judge thomas would decide cases fairly, quote, as the facts and the law require. in other words, he drew a clear distinction between the human quality of empathy and the judicial quality or duty, excuse me, of impartiality. this is obviously very different from then saying that a judge's personal empathy is an essential ingredient for deciding cases. which of these is closer to your own view, distinguishing human empathy from judicial impartiality or mixing them together so that empathy becomes part of the judicial decision making process?

>> presidents have used the word empathy and each of them has given it their different meaning. and i can't speak for their choice of the word or make a choice between what meaning is closer to what i believe or not. if i can state what i believe very simply, life experiences help the process of listening and understanding an argument. the law always directs the result in the case. a judge cannot decide cases on the basis of personal feelings, biases or sympathy. to the extent i have ever spoken about those things, it was to make sure that one understood and said that a judge always has to guard against those things affecting the outcome of a case. the question of when it's

appropriate, the supreme court has said some emotion's appropriate. judges, if they're reacting to an argument of a party, that's an appropriate emotion. inappropriate is deciding the consequence based on that. there are in sentencings, you're asked to look at the effect of a defendant's conduct on victims. are you ruling on the basis of sympathy, no, but you're being asked on the basis of life experience to understand that, and then you look at that consequence and weigh all the factors that the statute commands you consider, and then you come out at a reasonable sentence. >> i accept that. you gave a particular speech at least five times, as has been mentioned here, over a period of nearly ten years, both while you were a district court judge and an appeals court judge. you spoke specifically about some elements of judicial

philosophy. i know that senators discussed some statements from that speech with you yesterday, or from those speeches. i just want to ask you about a few others, statements that you made when you gave this speech on the various occasions. the first issue in response to the thesis judges must transcend personal sympathies and prejudices so their decisions are based on law and as a result have more fairness and integrity. do you agree that transcending personal sympathies and prejudices enhances the fairness and integrity of judicial decisions? >> yes.@@@@@@@ @ @ @ @ @ @ @ @ &

prejudices is a judicial duty or an aspiration? >> when i was speaking about aspiration, i was talking about the fact that we do have personal experiences that may on occasion not permit us to understand an argument and so it's an aspiration in the sense of recognizing that we have those experiences. i wasn't talking about that it was impartiality was impossible. i was just talking about the obligation of judges to monitor themselves from those unconscious influences that have affected their decision making. >> sure. in that same speech, you stated quote, the aspiration to impartiality is just that, it's an aspiration because it denies the fact that we are by our experiences making different choices than others, unquote. i realize that judges are people, they're not robots or

machines, but here again, you say that impartiality is only an aspiration. now, i think you have pretty well tried to explain the answer to the question isquestion, it' impartiality. i think you came down on the fact it's a duty. >> it's absolutely a duty, senator. that's why i was speaking about the task judges have to ensure unconscious influences do affect their decision making. we have to work hard at that. we do succeed at doing it. but, i was talking about the academic question, but in the end, it is always a duty to impartially decide the case before you. >> in that same speech, you said the judges must not deny the differences results from experience and gender, but

attempt to judge when they are appropriate. do you believe a judge's personal opinion, sympathies or prejudices are ever appropriate factors in how he or she or she or he decide cases? >> in some situations, the court does say in sentencing in particular, it's a measure of sympathy is important. a measure of understanding the extend of an injury in a course and what a jury might or might not award. those are appropriate uses of sympathy in some situations. it's not that the judge is deciding that as the result in the case. it is the law is giving the judge a variety of factors to consider and way and tells the judge, take each one of these factors, think about them, weigh them and come up with an end

result that the law wants you to reach under a standard the law is setting. that is what this speech was in the context of. it was talking about that kind of sotomayer.

>> you are recognized for up to 20 minutes. i keep adding the up to hoping somebody will follow my example. i do mean nobody will be cut off before 20 minutes. >> thank you, i understand. i'd like to begin using my time requesting a letter describing the role of board members that does not include controlling litigation, i ask unanimous consent. >> without objection. >> judge, thanks for your

tremendous patience. i'd like to talk about caperton versus nappy. it's a significant case that bears on the flood of interest money that under mines public confidence in our justice system. the facts are notorious. company ceo spent $3 million to elect an attorney to the state supreme court. it was a huge amount of money. more than all other financial supporters combined. he won, became a west virginia supreme court justice and voted to overturn the verdict against the main campaign. last month, the supreme court held that benjamin's failure to rekus himself was intollerable. the court also noted that most

states adopted codes of judicial conduct that prevent this conflict. the wisconsin supreme court's plan to revise additional safeguards. you have been a judge for many years and you may have seen examples of when a judge should have withdrawal. in your opinion, what additional steps should judges and legislatures take to ensure they are held to the highest ethical standards and litigants can be confident their cases will be handled impartially? >> senator, i would find it inappropriate to make suggestions to congress about what standards it should hold judges to or litigants to. that's a policy choice that congress will consider. i know that the american bar association has a code of

conduct that applies to litigants, the judicial code has a code of conduct for judges. as you noted in the state system where judges are elected, many states are doing what i just spoke about, making passing regulations. capertown was a case that was taken under the local rules of the supreme court, presumably that exercises pows over the court. it was a sug nif cant issue because the court took it and decided the case. the judges lawyers, all professionals must, on their own, abide by the highest

standards of conduct. i have given a speech on this topic to students at yale at one point where i said the law is only the minimum one must do. personally, one must act in a way in cases to ensure you are acting consistent with your sense of meeting the highest standards of the profession. >> thank you, judge. as i am sure you know, the supreme court ordered a pending case called citizens versus fcc in september. it's quite possible you will be a member of the court by then. i do not intend to ask how you would rule in that case. i would like to express where they are heading. there was a 5-4 hearing. i believe that ruling accurately

recognized congress must have the pow er to regulate campaign finance and corruption and appearance of corruption. the court seems to have started in another direction on these issues, striking down or narrowing two provisions of the law. millionaires amendment of the davis case and the wisconsin right to life. several justices argued the corporations will have the same constitutional rights to support their candidates. a case rejecting that idea should be overruled. it's premised on an absolutely reasonable solution. they may be subjected to greater regulation because of the legal advantages and the states that allow them. in scheduling reargument, they asked the parties to address

weather austin should be overruled. if the court does that and depending on how it rules, it may usher in corporate spending that the nation had not seen since the 19th century. without addressing the specifics of the citizen united case, i'd like to ask what the constitution provides about the rights of corporation and the current state of laws in elections is as you understand it. >> senator, i have attempted to answer every question that's been posed to me. you have noted that citizens united is on the court's docket for september, i think it's september 9th. if i were confirmed to the court, it would be the first case that i would participate in. given that existence of that

case, the very first one, i think it would be inappropriate for me to do anything to speak about that area of the law because it would suggest that i'm going into that process with some prejudgment about what precedence says and what it doesn't say and how to apply it in the open question the court is considering. i appreciate what you have said to me but this is a special circumstance given that particular case. >> frankly, judge, i probably would say the same thing if i were in your shoes, given the facts they are. i appreciate the opportunity to express what i wanted to say about that. with that, i am going to use up less than half of my time. >> i thank you. i think you set a fantastic example.

i commend you. totally nonpartisan. senator grassley. >> i assume i get the time he didn't use? >> no. after you demonstrated yesterday, that you tend to turn people on, we don't need anymore -- we don't need anymore excitement senator grassley, we want it low key. you have up to 20 minutes. >> i believe that i'm going to ask you something you never have been asked before during this hearing, i hope. i'd like to be original on something. i want to say to you that there's a supreme court decision called baker versus nelson, 1972. it says that the federal courts lack jurisdiction to hear due process and equal protection

challenges to state marriage laws for one of substantial federal question, which obviously is a issue the court's deal with quite regularly. the issue of is it a federal question or not. do you agree that marriage is a question reserved for the state's to decide based on baker versus nelson? >> that also is a question that's pending in many courts. as you know, the issue of marriage and what kons constitutes it is a subject of much public discussion. there's a number of cases in state courts addressing the issue of who regulates it, under what terms -- >> can i please interpret you? i thought i was asking a very simple question based upon a

precedent that baker versus nelson is, based on the proposition that yesterday in so many cases, whether @@@@@@@ @ @ court's precedent as i indicated in all of my answers, i will apply that precedence to the facts of any new situation that implicates it. >> well, then tell me what process you might go through if

a case, a marriage case came to the supreme court or whether baker versus nelson is precedent or not. based on everything you told us yesterday, you are going to follow it. >> the question on a marriage issue will be two sides come in, one says baker applied. another will say this court's precedent applies to this factual situation. whatever the factual situation is before the court. they will argue about what the meaning of the precedence is, how it applies to the regulation that's at issue, then the court will look at whatever it is that the state has done, what law it has passed on this issue of marriage and decide, okay, which precedence controls it? it's not that i'm attempting not to answer your question, senator

grassley, i'm trying to explain the process that would be used. again, this question of how and what is constitutional or not or how a court will approach a case and what precedence to apply to it is going to depend on what's an issue before the court. could the state do what it did. >> could i interpret you, again. what you said yesterday, i assume you answered a lot of questions before this committee about even after you said that certain things are precedent of things that are going to come before the court down the road if you're on the supreme court. you didn't seem to compromise or hedge on those things being precedent. why are you hedging on this? >> i'm not on this because the holding of baker versus nelson.

it would control any similar issue that's came up. it's been awhile since i looked at that case. i can't as i could with the more recent or more core holdings of the court on a variety of issues answer what the holding was and what the situation that it applied to. i would be happy, senator, as a follow up to written letter, or to give me the opportunity to come back tomorrow and just address that issue. i would have to look at baker, again. >> i appreciate it. >> it's been too long since i looked at it. it may have been as far back as law school. >> you were probably in grade school at that time. okay. okay. i want to go on and -- but, i would like to have you do that, what you suggested, you would

answer further after you studied it. i have a question, it kind of relates to the first question. in 1996, congress passed and president clinton signed into law the marriage act that defined it auz between one man and one women. it prevents a state -- unconstitutional and federal courts upheld both cases, one as a wilson case, one a bishop's case. district court, do you agree with federal courts that held the defensive marriage act does not violate the faith and credit clause and is an exercise of congress to regulate laws between different states? >> that's very similar to the austin situation. the rules would not permit me to

comment on the merits of a case that's pending or in pending before the supreme court. to the extent that lower courts addressed it and made holdings, it is a pending case that could come before the supreme court. i can't comment on the merits of that case. >> have you ever made any rulings on the full faith and credit clause? i may have. if your specific question is, have i done it with respect to a marriage related issue -- >> on anything, the full credit laws. >> i have no memory of doing so. >> that's okay. you can stop there. that's okay. i'm going to go to a place where

senator hatch left off, i'm not going to repeat any of the questions he asked. there's one i want to ask. i feel a little bit guilty of this. my dad used to have a saying to us kids that we are harping on something. he says when are you going to quit beating a dead horse. i want to ask you anyway. you also wrote, quote, i wonder whether achieving that goal is possible in all or even in most cases and i wonder whether by ignoring our differences as women and man of color, we do a disservice to law and society, end of quote. so, the concern i have about the statement is this indicating that you believe judges should and must take into account

gender, ethnic background or other personal preferences in their decision making process. is that what you meant? i don't want to follow up so i don't have to ask two questions? how is being impartial a disservice to law and the society. isn't justice supposed to be blind? >> no, i do not believe judges should use their personal feelings beliefs or value systems or make their decisions to influence their outcomes. neither do i believe they should consider the gender, race or ethnicity of a group before them. i absolutely do not believe that. with respect to, yes, is the goal of justice to be impartial. that is the central role of a judge. the judge is the impartial

decision maker between parties who come before them. my speech was on something else, but i have no quarrel with the basic principles you have asked me to recognize. >> okay. >> no quarrels sounds equivocal. i do believe in those things, absolutely. and that, that's what i have proven as a judge. >> another remark you made, you stated that you quote, further accept that our experiences as women and people of color affect our decisions end of quote. then further, personal experiences affect what the judges choose to see and there will be some differences in my

judging based on my gender and latina heritage. do you believe it is ever appropriate for judges to allow their own identity, politics to influence their judging? >> no, sir. absolutely not. >> okay. then i want to move on to another area. this question comes from your 1992 senate questionnaire. you wrote in response to a question about judicial activism that quote intrusions by a judge upon the functions of other branches of government should only be done as a last resort and limitedly. is this still your position? and let me follow up, when would such an intrusion be justified? for example, what is an example of last resort? what is an example of limited?

>> the answer is judges in the manner which that question was responded to was to the extend there has been a violation of the constitution in whatever manner the court identifies in a particular case. it has to try to remedy that situation in the most narrow way in order not to intrude on the functions of other branches or actors in the process. the case that i was discussed in my history has been the doe case, where i joined the panel decision where the district court invalidated a statute that the legislature had passed on national security letters.

our panel reviewed that situation and attempted to disearn and disdiscern congresses intent and despite an isolated provision that might have to be narrowly construed to survive constitutional review, it held up the other provisions of the act, work constitution. the vast majority, contrary to what they did, i'm not saying they intended to violate, but the court took a different view and we upheld the statute in large measure to the extend we thought there were and found there were two provisions that were unconstitutional. we narrowly construed them to

assist in affecting congresses intent. that's what i talked about in that answer. >> okay. a little bit along the same line, in your law review articles, you wrote that quote, our society would be straight jacketed, for not the courts, able assistance of the lawyers constantly overhauling. i don't know if that's your emphasis or mine, but i have it underlined. over hauling the law, maybe i better start again. our society would be straight jacketed were it not the courts with the able assistance with the lawyers constantly overhauling the law and adapting it to the realities of ever changing social, industrial and political changes. explanation of the statement from you.

i think you're saying judges can twist the law regardless of the legislature, the elected branch of government enacted. it's my interpretation of that. >> that interpretation was clearly not my intent. i don't actually remember those words, but i remember the speech. i'm assuming you're talking returning magistrate to the law. there, i was talking about a broader set of questions which was how to bring the public's respect back to the function of judges and i was talking about the judges that lawyers have an obligation to explain to the public, the reasons why what seems unpredictable in the law has reason and i mentioned in that speech that one of the big

reasons is that congress makes new laws. that was the very first reason i discussed. also, there's new technology, there's new developments in society and what lawyers do is come in and talk to you about, okay, we have the laws, how do you apply them to the new situation. what judges do and that's why i was talking about the assistance of judges, of lawyers, is what you do is look at the court's precedence, look at what a statute says and try to understand the principles that are at issue and apply them to what the society is doing. that was the focus of my speech, which was talk to the public about the process, don't feed into their cynicism that judges or activists that judges are

making law. work at explaning to the public what the process is. i also talk to part of my speech @@g)@ @ @ @ @ @ @ @ @ @ @ @ @ @r technology, medicine, so many different areas. there are new situations that arise and new facts to look at. you apply the law to the situations. it's the process of judging. it's trying to figure out what does the law say about a set of

facts that may not have been imagined at the time of the founding of the constitution but, it's what the judge is facing then. how do you apply it? >> i want to go back to based on my opportunity to reflect on things you said yesterday. the time limit to file a case was three years. mr. didden was approached for what he classified as extortion in november, 2003. two months later, he filed his lawsuit, but under your ruling, mr. didden was required to file his lawsuit in july, 2002, close to a year and a half before he was actually extorted. so, that doesn't make sense to require someone to file a lawsuit on a perceived chance that an order might occur. you also testified the supreme

courts kilo decision was not relevant to the didden holding but your opinion, in cursory fashion states if there was no statute of limitation issue, kilo would have permitted mr. diddens property to be taken. it's hard to believe it can be seized when he refuses to be extorted without violation taking place. under these circumstances, mr. didden did not get served his day in court of additional legal analysis. could you explain how mr. didden could have filed his lawsuit july 2002, before he was extorted november 2003 and also please explain why a july 2002 filing would not have been dismissed because there was no

proof that mr. didden suffered an injury, only an allegation he might be injured in the future. >> the basis of mr. diddens lawsuit was the state can't take my property and give it to a private developer. because that is not consistent with the taking clause of the constitution. to the extent he knew the state and there's no dispute about this, the state found the public use for his property that it had a public purpose, that it had an agreement with the private developer to let that developer take the property, he knew that he was injured because his basic argument was state can't do this. it can't take my property and give it to a private developer. the supreme court addressed that

question and said under certain circumstances the state can do that if it's for a public use and public purpose. so, his lawsuit essentially addressing that question came five years after he knew what the state was doing. the issue of extortion was a question of whether the private developer was engaging in extortion and extortion is an unlawful asking of money with no basis. the private developer had a basis. he had an agreement with the state. that is a different issue than the timeliness of the complaint. >> thank you. >> senator cardin. we'll recognize senator cardin. then we'll recess until 9:30

tomorrow morning. >> well, judge, let me first say, since this will be my last time in this hearing to address you, to say, this has been my first confirmation hearing for a supreme court justice and you have set a very high standard for me for those i might have to consider because there's always a possibility of future vacancies on a supreme court, responding to our questions, being open with us and i think, really, demonstrating the type of respect for the process that has really shown dignity to you and our committee. i thank you for that. i thank you in the beginning for your willingness to serve the public as a prosecutor and a judge, now willing to take on this incredible responsibility and i just really want to emphasize that, again. i don't know if you thought when you were considered for this,

what you would have to go through as far as the appearance before the judiciary committee. it gets better, i believe. so, let me ask you one or two questions, if i might. i want to follow up on senator cole's question on selection of cases. as it's been pointed out, there's maybe 1% of the case that is are petitioned for the supreme court. will get an opinion from the supreme court and it will be decided. now, senator cole asked what standards you would use. i want to concentrate on the impact a supreme court case can have. i want to refer to one of your cases, the housing case where a borrower -- you allowed the borrower to go forward, african-american, on a discrimination issue. we have seen throughout history

discrimination with red lining, predatory lending, the fair housing act enacted by congress. the supreme court long recognized part of the coordinated scheme of the civil rights laws enacted to end discrimination. there's still major challenges that are out there. predatory lending still takes place. it's happened during this housing crisis with the sub prime mortgage. i say that and relationship to the boiken case. i agreed with your conclusion that it not only could affect the litigants before you, but could have an impact on industry practice, if there was discrimination and a case was decided by your court. the same thing is true in the supreme court, more so in the supreme court. it's the highest judgment of our

lanld. yes, you have to be mindful when you take a case as to the impact it will be on litigants and take into consideration if there's been different inconsistent rulings in the different circuits. one of the standards i would hope you would use is the importance of deciding this case for the impact it has on a broader group of people in our nation. whether it's a housing case that could affect communities ability to get fair access to mortgages for home ownership or whether it's a case that could have an impact on a class of people on environmental and exnomic issues. i would like to get from you whether this, in fact, is a reasonable request that as you consider requests that one of the factors that's considered is the impact it has on the community at large.

>> as i indicated earlier, we don't make policy choices. that means that i would think it inappropriate for a court to choose a case because or a judge to choose a case based on some sense of i want this result on society. a judge takes a case to decide a legal issue and arguments about why parties are saying it's important. the question of impact is different than what a judge looks at, which is what the state of law in this question and how and what clarity is needed and other factors. as i said, there's a subtle but important difference in separating out, making choices

based on policy and how you would like an issue to come out than a question that a judge looks at in terms of assessing the time at which a legal argument should be addressed. >> i respect that difference. i don't want you to take a case to make policy. i do think the need for clarity for the community as to what is appropriate conduct well beyond the litigants of a particular case is a factor where clarification is needed should weigh heavily on whether the court takes that case or not. >> there is just no one factor that controls the choice where you say i'm going to look at every case this way. as i said, judges in -- i shouldn't talk. i'm not there. >> all right.

>> my understanding of the process is that it's not based on those policy implications of an outcome, it's based on a different question than that. >> well, let me conclude on one other case that you ruled on where i also agree with your decision, ford versus mcginness. there was an opinion overturning a judge find iing in favor of a muslim inmate denied by prison officials access to religious meals, marking the end. you held that the inmates rights were violated at the opinions of the department of corrections, religious authorities cannot trump the religious beliefs. freedom of religion is the basic principle in our constitution as i said in opening comments. it's one of the reasons why my grandparents came to america.

freedom of religion is truly a fundmental american right. please share with us your philosophy as to -- maybe it's the wrong use of terms, but the importance of that provision in the constitution and how you would go about dealing with cases that could affect that fundamental right in our constitution. >> i don't mean to be funny, but the court has held that it's fundamental in the sense of it. it is a very important and central part of our democratic society that we do give freedom of religion, of practice of religion that the constitution restricts the establish -- the state from establishing a religion and that we have fr freedom of expression in speech

as well. those freedoms are central to our constitution. the other cases that i have rendered in this area recognize the important of that in terms of ones consideration of actions that are being taken to restricted in a particular circumstance. speaking further is difficult to do. again, because of the role of a judge, to say it's important that it's fundamental, legal and common meaning is always looked at in the context of a particular case. what is the state doing. in the ford case you mentioned, the question there before the court was did the district court error in considering whether or

not the religious belief that this prison had was consistent with the established interpretation of a meal at issue. okay. what i was doing was applying very important supreme court precedence that said it's the subjected belief of the individual. is it motivated by a religious belief? it's one of the reasons we have objectors. we are asking a court not to look at whether this is orthodox or not, but to look at the sincerity of the individuals religious belief and then look at what the state is doing in light of that. that was what the issue was in ford. >> thank you for that answer. thank you very much for the manner in which you responded to our questions.

thank you mr. chairman. >> thank you very much senator carden. as i for what purpose does the

gentleman from ohio rise? mr. kucinich: i request permission to address the house for one minute. the speaker pro tempore: without objection. mr. kucinich: thank you. americans want quality affordable health care. 50 million americans are uninsured. h.r. 3200 will still leave 17 million americans uninsured. now, how's that possible? because it keeps in place a for-profit insurance system which siphons off at least $400 billion every year which could be used to make sure all americans, not just most americans, receive quality health care. h.r. 3200 will not solve the problem of underinsurance. 60% of all bankruptcies in america are due to people not being able to pay hospital

bills. of those 80% are insured. people just can't afford the rising premiums, co-pays and deductibles which are the basis of insurance company profits. the only way to break the insurance company's hold on our system is to afford -- is to have a single-payer not-for-profit health care system. the speaker pro tempore: the gentleman's time has expired. for what purpose does the gentleman from south carolina rise? mr. wilson: mr. speaker, i ask permission to address the house for one minute and to revise and extend my remarks. the speaker pro tempore: without objection. mr. wilson: mr. speaker, democrats should stop trying to spend the results of their economic borrowing program. despite what the obama administration has said, the 2,600,000 who have lost jobs since january is a clear sign that their recovery act has not done its job. instead of more rhetoric, democrats should work with republicans to put in place commonsense proposals that will rein in the wasteful spending

and focus on job creation. our economy will grow strong again thanks to individuals and small businesses that create the majority of jobs in this country. it will not be due to the billions and big government borrowing perpetrated by this administration. we should focus our time on helping small businesses grow and provide relief to those who are suffering during these tough economic times. republicans have offered a plan to do just that, and we will do so without adding trillions in additional big government liberal spending and actions such as the new health care taxes that will destroy jobs. in conclusion, god bless our troops and we will never forget september 11 and the global war on terrorism. the speaker pro tempore: the gentleman's time has expired. for what purpose does the gentleman from california rise? >> mr. speaker, i ask unanimous consent to address the house for one minute. the speaker pro tempore: without objection. mr. baca: mr. speaker, we have a critical role in reviewing the specific details of health care reform.

access to health care is something we need to offer every american across the nation. everyone should have coverage. everyone should have access. there is no question that we must have comprehensive reform to our health system. critics to reform failed to get the message and only talk about rhetoric. doing nothing for a broken system is not the answer. they do not understand the fear and devastation families face while -- to trips to the emergency rooms. they don't understand the severe ramifications faced by families when they receive the doctor's bill or hospital bill. families must have access to health care. never again will you have coverage be denied. never again will you have to make a decision between life or job decision based on coverage. i urge my colleagues to support comprehensive health reform.

the speaker pro tempore: the gentleman's time has expired. for what purpose does the gentleman from louisiana rise? mr. fleming: i ask unanimous consent to speak to the house for one minute. the speaker pro tempore: without objection. mr. fleming: thank you, mr. speaker. as it stands now, the democrat health plan equals tax-payer funded abortions. let me repeat that. as it stands now, the democrat health plan equals taxpayer funded abortions. if unamended, the obama health plan will be the most massive abortion expansion since roe v. wade and every insurance payer will be forced to pay for every abortion. the taking of innocent life is not health care. i know. i'm a physician. yet, without an abortion exclusion this reform bill will be the platform for thrusting abortion into every aspect of health care in this country. the secretary of h.h.s. and the so-called benefits advisory

committee will determine the specific mandated services. abortion will be included in the minimum benefits unless it is excluded. and the democrats refuse to do that. this bill does an end run to current funding restrictions that contain language that both authorizes and appropriates. thank you. the speaker pro tempore: the gentleman's time has expired. for what purpose does the gentlewoman from california rise? >> to address the house for one minute and to revise and extend my remarks. the speaker pro tempore: without objection. mrs. capps: mr. speaker, we have an historic opportunity to finally improve health care in america, to finally bring access and quality of care to all americans, not just the lucky few. i'm so proud to support the bill introduced by the three committees of jurisdiction and to play my part in seeing us pass legislation in both the house and senate before august recess. what's great is that there is something for everyone here. there's affordable access to coverage for people who've

never been insured before. there's help for seniors stuck in the dreadful part d doughnut hole. there are consumer pro tuxes against long standing egregious practices by insurance companies. there's amazing investment into our health care work force, including physicians, nurses and allied health professionals. and there's finally an incentive to practice wellness-based health care instead of simply illness-based disease treatment. i urge all of my colleagues to join me in passing america's affordable health choices act and enacting the health care reform our constituents so desperately need and americans deserve. i yield back. the speaker pro tempore: for what purpose does the gentleman from texas rise? mr. johnson: i ask unanimous consent to address the house for one minute and to revise and extend. the speaker pro tempore: without objection. mr. johnson: mr. speaker, as we debate the best way to reform our health care system and ensure that all americans have

access to quality health care, some members of congress insist that a government-run option must be included. yet in one proposal members of congress are curiously exempt from the public plan. for those who are convinced that government-run health care won't sacrifice quality and won't lead to rationing, i backed a resolution saying that if a member of congress votes to support the public option then that member must be automatically enrolled in it. if members are convinced that the government-run public option will deliver the same quality of care as their congressional health plans, then they ought to be the first in line to enroll. members of congress should stop asking the american people to make sacrifices they are not willing to make themselves. i yield back. the speaker pro tempore: for what purpose does the gentleman from new jersey rise? mr. sires: to address the house for one minute. the speaker pro tempore: without objection.

mr. sires: mr. speaker, today i rise to speak of the pressing need to fix our health care system. every day america's not only worried about getting well but whether they can afford to get well or stay healthy. they are not the only ones who worry. all too often small businesses are forced to choose between coverage or layoffs. we have the most expensive health system care in the world, spending almost 50% more per person on health care than the next most costly nation. yet, we're not healthier for it. mr. speaker, i am glad that congress and the president are working together on a plan to reform our health care system. a plan that will reduce cost, provide choices and guarantee affordable quality health care for all. we must act now for it is what purpose does the gentleman from connecticut rise? >> to address the house for one minute. yesterday we had the historic introduction of our health care reform act. this is going to improve care

for americans, for people that have insurance, but also for people that don't. importantly, this legislation includes a robust public health insurance option. the cost of health care insurance is just too high for people that have it and businesses that are paying for it and the public health insurance option is going to be one of our most effective ways to bring the cost of insurance down. don't take my word for it, take a study by the commonwealth fund that shows that premiums for individuals can be reduced by 25% by the pressure put on private insurers by public health insurance option. that's why studies show that 70% to 80% of americans want the option to purchase a public insurance option. because it will lower their costs, both as individuals and as employees of businesses throughout this country who are paying far too much for health care. mr. speaker, i encourage us to take a serious look at a very, very important health care bill that's been introduced before us and i yield back. the speaker pro tempore: for what purpose does the gentleman from georgia rise?

>> address the house for one minute, revise and extend. the speaker pro tempore: without objection. mr. gingrey: mr. speaker, yesterday house democratic leadership held a press conference to introduce a health care reform legislation. as a physician who has practiced medicine for more than 30 years, i have major concerns that this plan will ultimately put a government bureaucrat in between patients and their doctors and eventually lead to a one size fits all health care system where the government decides what treatments are necessary for patients. when money gets tight, this leads to rationing of care and long waiting lists for patients. we have already seen the pilot for this program, it's called ten care. you just ask the -- tenncare. you just ask the democratic governors of the tennessee what it's done to the budget in their state. i just want to read a sentence of testimony from a canadian doctor who has seen first hand of a single pair system. what we have in canada is access to a government state mandated wait list and the wait lists are long and patients are suffering on this wait list. our own supreme court said patients are actually dying as

they wait for care in canada. mr. speaker, this is not the sort of health care reform that the american people want or need. and yield back. the speaker pro tempore: for what purpose does the gentleman from rhode island rise? without objection. mr. kennedy: thank you, mr. speaker. anyone ever heard the expression the proof is in the pudding? well, when the private health insurance companies found out that there may not be a government option, you know what happened to the health insurance stocks on wall street? they went through the roof. profits skyrocketed because you know why? the health insurance companies make money off of the consumers when they don't have competition. when they're able to cut your health care and make profits out of denying you health insurance. that's how the private marketplace makes money. by denying you health care. they only want to cover the healthy and well.

we have the government option, the public option to guarantee the american people that they get their health care that they pay for. republicans don't want to hear that because they're bought and paid for by the private health care companies. we're on the side of the american people. we want to protect the people so that they can get their health re irrespective of a pre-existing health care condition. i'm proud that this health care plan covers all pre-existing conditions including mental health parity as covered by the mental health parity act that wa the speaker pro tempore: without objection. mr. gohmert: mr. speaker, -- thank you, mr. speaker. i know we have disagreements on some of these issues and i know what the intent is of the democratic proposed health care bill. and i know the intent is not to hurt the lower wage earner, but this bill that's being proposed is going to hammer employers who don't -- an 8% penalty if they

don't provide health care. well, so they're going to turn around and provide health care because the people i know are saying, we're just hanging on, we got these good workers, we don't want to lose them. so if i'm going to be penalized 8%, i'll have to provide health care but i'm going to have to reduce their wages by the amount the health care costs. it maybe $5,000 or $6,000 and i'm begging my friends on the other side, this is my plea, mr. speaker, don't take $5,000 or $6,000 of wages from the lowest wage earner right now. don't force small billses, and i know there is an exemption at the low end, but smaller businesses are still going to either have to lay people off, pay an 8% penalty or take wages away. don't hurt our lower wage workers. the speaker pro tempore: for what purpose does the gentleman from new york rise? mr. weiner: one minute to revise and extend my remarks. the speaker pro tempore: without

objection. mr. weiner: i would say to the american people who are watching the oncoming debate about health care that in many ways we already know what the two sides are. the republican party, the party that opposed the medicare act, opposed social security and medicaid, the republican party has made it clear, they're not only the party of no, they're the party of ignoring the problems of the middle class and those strig struggling to make it. the democratic party, the party that's producing this legislation is the party that again and again has said, we're going to step up to the challenges facing this country. now, if you believe that we are spending just the right amount, that we're not spending too much money on health care, you're alone. because i think we're spending trillions upon trillions of dollars more than we need to. if you think that the hundreds of billions of dollars that people are paying for out of pocket is just right, then you probably want the republican party's plan which is to do nothing. but the democratic party and the leadership of frank pallone and boehm and the others are saying we're going to try to solve this problem. you know why? because that's what we do. that's what democrats do. now the republican party doesn't

do that. they say no, no, no. but we have a problem. if you want choice, if want affordability and if you want health care for your family, you're going to get it with the democratic party, not with the republican party. the speaker pro tempore: for what purpose does the gentleman from georgia rise? mr. westmoreland: to address the house for one minute, revise and extends my remarks. the speaker pro tempore: without objection. mr. westmoreland: thank you, mr. speaker. the last speaker just talked about what the republicans want to do, well, what the democrats want to do is spend, spend, spend and i gave a little math lesson yesterday and i'd like to revisit that today, mr. speaker. you know, we talk about millions of dollars and we talk about billions of dollars and we talk about trillions of dollars and the more you hear those words, they just become words and you don't realize how much money that is. a million seconds equals a little over 11 days. a billion seconds is 31 years and eight months. a trillion seconds is 31,710

years. if i gave you $1,000 a second it would take me 31.7 years to give you $1 trillion. at $1,000 a second. we're not the party of no. we're the party of doing what we can afford. the democrats are the party of throwing money at any problem that comes about with no regard at what it's costing the @@@@@@@@@