became mayor and one after in 2002, and we're defending it on the grounds, the suit alleges that the written portions of the test were not germane to the job and had disparate impact. i have chosen to fight this. i think that in fact, the tests were job-related and were consistent with business necessity. thinks this is a case that's going to go to trial sometime later this year. we have tried to approach it from a different point of view, aggressive recruiting to try to get more minorities to apply to be firefighters and we have revised our test. we have had a substantial increase in the number of minorities taking the test, passing the test and joining our fire department, and i really do believe that that's a better way

to solve the diversity problem, which does affect an awful lot of fire departments around this

judge, thank you, judge sotomayor. welcome back to the committee for a fourth day. this seems long. it is a day longer than either chief justice roberts or justice alito were called upon to testify, but you seem to have weathered it well, and i hope everyone has too. yesterday we completed the first round of questions for an additional eight senators. this morning we can continue and hopefully conclude. senator kyl is recognized next for 20 minutes, and -- or, as i say with hope spring eternal, i keep saying up to 20 minutes. nobody's required to use the full 20 minutes, but they -- i would hasten to add everybody is certainly entitled to them.

senator kyl. >> mr. chairman, before i begin, for those watching on television, i would just note, i don't think we put judge sotomayor on the hot seat with our questions but we certainly did with the temperature in this room yesterday. and for that i apologize, and i note that it could get a little steamy this morning too. i know it's cold back there, but it's not at all cool where we are. >> if i go -- >> there was a request about judge sotomayor's stamina in a very hot room, that question has been dispelled without any doubt whatsoever. >> if i might add, i'll set the clock back to 20 minutes so it doesn't go into your time, but it -- it is really an interesting thing, because anybody that's gone up where the press are, it's like an icebox up there. and i'm hoping we can get this -- at least the microphones are working. i want to thank senator sessions for offering me his microphone yesterday, but that didn't work, and i will thank senator franken

for letting me use his. so we start the clock back over so i don't take any of senator kyl's time. >> thank you, and good morning, judge. >> good morning. >> in response to one of senator sessions question does about the ricci case, you answered it was by established precedent. you also said judges on the appellate court were looking at second precedent and you said the supreme court was the only body that had the discretion and power to decide how these tough issues will be decided. those are all quotations from you. i've carefully reviewed the decision, and i think the reality is different. no supreme court case had decided whether rejecting an employment test because of its racial results would violate the civil rights laws. neither the supreme court's majority in ricci nor the four dissenting judges discussed or cited any cases that addressed

the question. in fact, the court in its opinion even noted, and i'm quoting here, that this action presents two provisions of title seven to be interpreted and reconciled with few, if any, press de precedents. in other words, not only did the supreme court not identify any supreme court cases on point, it found few, if any, lower court opinions that even addressed the issue. isn't it true that you were incorrect in your earlier statement that you were bound by established supreme court and second circuit precedent when you voted each time to reject the firefighters' civil rights complaint? >> senator, i was -- let me place the ricci decision back in context. the issue was whether or not employees who had -- were a member of a disparately impacted

group had a right under existing precedent to bring a lawsuit. did they have a right to bring a lawsuit on the basis of a prime ma fascia case and what would that consist of. that was established second circuit precedent and had been, at least up to that point, been concluded from supreme court press dents describing the initial burden that employees had. that was -- >> are you speaking -- you said the right to bring the lawsuit. it's not a question of standing, there was a question of summary judgment. >> exactly. exactly. which is when you speak about a right to bring a lawsuit, i mean, what's the minimum amount of good faith evidence do they have to actually file the complaint, and established precedent said you can have a case of violation of title seven

merelily by -- not merely, that's denigrating it, by showing a disparate impact. then the city was faced with the choice of, okay, we're now facing two claims, one -- >> if i could interrupt, we only have 20 minutes here. i am aware of the facts of the case. the question i asked was very simple. you said you were bound by supreme court and second circuit precedent. what was it? there is no supreme court precedent, and as the court itself noted, they could find few, if any, second circuit precedents. >> the question was, the precedent that exists and whether viewing it one would view this as the city discriminating on the basis of race or the city concluding that because it was unsure that its test actually avoided disparate impact but still tested for

necessary qualifications, was it discriminating on the basis of race by not certifying the test. >> so you disagree with the supreme court's characterization of the precedence available to decide the case? >> it was a more focused one that the court was looking at -- not more focused, it was a different look, it was saying, okay. you got these precedents. it says, employees can sue the city. the city is now facing liability. it's unsure whether it can defeat that liability. and so it decides not to certify the test and see if it could come up with one that would still measure the necessary qualifications -- >> let me interrupt again. because you're not getting to the point of my question, and i know as a good judge, if i were arguing a case before you you would say that's all fine and

dandy, counsel, but answer my question. isn't it true that, two things. first, the result of your decision was to grant summary judgment against these parties? in other words, it wasn't just a question of whether or not they had the right to sue, you actually granted a summary judgment against the parties. and secondly, that there was no supreme court precedent that required that result. and i'm not sure what the second circuit precedent is. the supreme court said few, if any. and i don't know what the precedent would be. i mean, not necessarily going to ask you to cite the case, but was there a case? and if so, what was it? >> it was the ones we discussed yesterday, the bushy line of cases that talked about the prime ma fascia case and defending lawsuits claiming disparate impact. and so the question then became, how do you view the city's action? was it a -- and that's what the

district court had done in its 78-page opinion, to say, you've got a city facing liability -- >> all right. so you contend that there was second circuit precedent. now, on the enbank review, you're not bound but any three-judge decision in your circuit. so what precedent would have bound -- and yet you took the same position in the enbank review. for those not familiar, a three-judge court decides the case in the first instance. in some cases, if it is important enough, the other judges on the circuit, nine, ten or 20, i think in the ninth circuit, there are like 28, and you can request an enbank review. the entire circuit would sit. in that case it's the entire circuit sitting of ten or 12 or 20 judges. so what precedent, then, would

have bound -- bound a court in the enbank review? >> the panels set forthwith the district court's analysis of the case. those who disagreed with the opinion made their arguments, those who agreed that enbank certification wasn't necessary voted their way and the majority of the court decided not to hear the case enbank. i can't speak for why the others did or did not take the positions they did. some of them issued opinions, others joined opinions -- >> but you felt you were bound by precedent? >> that is what we did in terms of decision, which is to accept -- not accept, but incorporate the district court's decision, analyzing the case and saying we greed with agreed wit.

>> understood. but the district court is not binding on the circuit court, and the enbank review mains that the court should look at it in light of precedents that are stronger than a three-judge decision. so i'm still baffled as to what precedent you're speaking of. >> perhaps it's just one bit of background needs to be explained. when a court incorporates as we did in a procure yum, a district court decision below, it does become the court's precedent. and in fact -- >> the three judges? >> yes. but when i was on the district court, i issued also a lengthy decision on a issue, a constitutional issue, direct constitutional issue that the circuit had not addressed and very other few courts had addressed on the question of whether the statute of limitation -- >> i apologize for interrupting

but i've now used half of my time, and you will not acknowledge that even though the supreme court said there was no precedent, even though the district court judgment and a three-judge panel judgment cannot be considered precedent binding the enbank panel of the court, you still insist that somehow there was precedent there that you were bound by. >> as i explained, when the circuit court incorporated the district court's opinion, that became the court's holding. >> of course. >> so it did become circuit holding. with respect -- >> by three judges. >> with respect -- yes, sir. i'm sorry. with respect to the question of precedent, it must be remembered that what the supreme court did in ricci was say, there isn't much law on how to approach this, should we adopt a standard

different than the circuit did, because it is a question that we must decide, how to approach this issue to ensure that two provisions of title seven are consistent with each other. that argument of adopting a different test was not the one that was raised before us, but that was raised clearly before the supreme court. and so that approach is different than saying that the outcome that we came to was not based on our understanding of what it made out of a primea fascia case. >> do judges on the second circuit dispose of first impression by a summary one-paragraph order procure yum opinion? >> actually, they did in one case. >> was that atypical? >> i don't know how you define typical, but if you define

judgment of the panel is adequate and fullsome and persuasive, they do. in rodriguez versus artus case on the constitutionality by an act by congress with respect to the suspension clause of the habeas provision, the court did it in less than a paragraph. they just incorporated my decision as the law of the circuit or the holding of the circuit. >> well, let me quote from judge cab bran is's dissent. he said the use of procuring opinions of this sort, adopting a full reasoning of a district court without further elaboration is normally reserved for questions that present straightforward questions that do not require exploration or elaboration by the court of appeals. the questions in this appeal cannot be classified as such as they are indisputably complex and far from well settled. i guess legal analysis analysts are simply going to have to

research and debate the question of whether or not the cases of first impression are complex important cases are ordinarily dispensed of that way. let me just say that the implications -- the reason i address this is the implications of the decision are far-reaching. i think we would all agree with that. it's an important decision, and it can have far-reaching implications. let me tell you what three writers in effect said about it. and get your reaction to it. here's what the supreme court said in ricci about the decision, about the rule that your court endorsed. it said that the rule that you endorse, and i'm quoting now, allowing employers to violate the disparate treatment prohibition based on a mere good faith fear of disparate liability would encourage race-based action at the slightist hint of disparate impact. this is the supreme court. such a rule, it said, would amount to a de facto quota

system in which a focus on statistics could put undue pressure on employers to make hiring decisions on the basis of race. even worse, an employer could discard test results or other employment practices with the intent of obtaining the employer's preferred racial balance. your colleague on the second circuit, judge cab bran is said that under the logic of your decision, municipal employers could reject the results of an employment examination whenever those results fail to yield a skirable -- in order, failing to meet a racial quota. that's why it is so important. i would imagine you would hope that result would not pertain, you would not have rendered this decision if you felt that would be the result. >> as i argued -- argued. as i stated earlier, the issue for us, no. we weren't endorsing those

results, we were just talking about what the supreme court recognized, which was that there was a good faith basis for the city to act. it set a standard that was new, not argued before us below, and that set forthhow to balance co. that is part of what the court does in the absence of a case previously decided that sets forth the test. and what the court there said is good faith is not enough. >> understood. >> substantial evidence is what the city has to rely on. those are different types of questions. >> of course. and the point is you don't endorse the result that either judge cabranis or the supreme court predicted would occur had your decision remained in effect. i'm sure that you would hope that result would not pertain. >> yes. but -- but i didn't -- that

wasn't the question we were looking at. we were looking at a more narrow question, which was could a city in good faith say we're trying to comply with the law. we don't know what standard to use. we have good faith for believing that we should not certify. now the supreme court has made clear what standard they should apply. those are different issues. >> well, i'm just quoting from the supreme court about the rule that was -- that you endorsed in your decision, and again, it said the supreme court said about your rule that such a rule would amount to a de facto quota system in which a focus on statistics could put undue pressure on employers to make hiring decisions on the basis of race even worse an employer could disregard test results or other employment practices with the intent of obtaining an employer's preferred racial balance. i guess we both agree that that

is not a good result. let me ask you about a comment you made about the dissent in the case. a lot of legal commentators have noted that while the basic decision was 5-4, that all nine of the justices disagreed with your panel's decision to grant summary judgment. that all nine of the judges believed that the court should have been -- that the district court should have found the facts in the case that would allow it to apply a test. your panel had one test. the supreme court had a different test. the dissent had yet a different test. but in any case, whatever the test was, all nine of the justices believed that the lower court should have heard the facts of the case before summary judgment was granted. i heard you to say that you disagreed with that assessment. do you agree that the way i stated it is essentially correct?

>> it's difficult because there were a lot of opinions in that case. but the engagement among the judges was varied on different levels. and the first engagement that the dissent did with the majority was saying, if you're going to apply this new test, this new standard, then you should give the circuit court an opportunity to evaluate the evidence -- >> judge, i have to interrupt you there. the court didn't say if you're going to apply a new standard, you'd need to send it back. all nine justices said that summary judgment was inappropriate, that the case should have been decided on the facts. there were three different tests, the test from your court, the supreme court and the test of the dissent. irrespective of what test it was everything they said that the case should not have been decided on summary judgment. all nine justices agreed with that, did they not? >> i don't believe that's how i read the dissent. it may have to speak for itself,

but i -- justice ginsburg took the position that the circuit's panel opinion should be affirmed. and she took it by saying that no matter how you looked at this case, it should be affirmed. and so i don't believe that that was my conclusion reading the dissent, but obviously, it will speak for itself. >> well, it will. and i guess commentators can opine on it. i could read a commentary from people like stuart taylor, for example, who have an opinion different from yours. but let me ask you one final question in the minute and a half that i have remaining. i was struck by your response to a question that senator hatch asked you about yet another speech that you gave. in which you made a distinction between the justice of the district court and the justice of the circuit court saying that the district court provides justice for the parties. the circuit court provides justice for society.

now, for a couple of days here, you've testified to us that you believe that not only do district and circuit courts have to follow precedent, but the supreme court should follow precedent. so it's striking to me that you would suggest -- and this goes back to another comment you made, perhaps flippantly, about courts of appeals making law. but it would lead one to believe that you think that the circuit court has some higher calling to create precedent for society. in all of my experience, you have smith versus jones in the district court. the court says the way we read the law, smith wins. it goes to the court of appeals. the court has only one job to decide. does smith win or does jones win? it doesn't matter what the effect of the case is on society. that's for legislators to decide. you have one job. who wins? smith or jones? based on the law.

and you decide, yeah, the lower court was right. smith wins. you're applying precedent, and you're deciding the case between those parties. you're not creating justice for society except in the most indirect sense that any court that follows precedent and follows the rule of law helps to build on this country's reliance on the rule of law. >> i think we're in full agreement. when precedent is set, it follows the rule of law. and in all of the speeches where i've discussed this issue, i've described the differences between the two courts as one where precedents are set, that those precedents have policy ramifications, but not in the meaning that the legislature gives to it. the legislature gives it a meaning in terms of making law. when i'm using that term, it's very clear that i'm talking about having a holding. it becomes precedent.

and it binds other courts who are following the rule of law when you're doing that. >> mr. chairman, i'm over the time. just a final follow-up question if i could. you yourself noted that you have created precedent as a district court judge. both district courts and circuit courts create precedent simply by deciding a case. but they're both required to follow precedent, isn't that corre correct? >> yes. >> ond because the senator went over, i would note the district court in that case did cite the reeves case which is a 2000 supreme court -- 2000 supreme court case as has precedent and a binding second circuit court case, the hayden case, as precedent. and as the judge has noted, she incorporated the district court, as they often do, incorporated

the district court decision. >> thank you very much, mr. chairman. i have great respect for senator kyl. i've worked with him, i guess, about 12 years now on the subcommittee of this committee. but i think there is a fundamental misreading of the supreme court decision, if i understand it. it's my understanding that the court was 5-4, is that correct? >> it was. >> and that the four dissenters indicated that they would have reached the same conclusion as the second circuit did, is that correct? >> that was my understanding. >> thank you. let me clear one thing up. i'm not a lawyer, and i've had a lot of people asking me particularly from the west coast, what is percuium? what you in plain english explain what the court means? >> it's essentially a unanimous opinion where the court is

taking an act that -- where it's not saying more than what either incorporating a decision by the court below because it's not adding anything to it. >> right. >> in some cases it's when there's -- judge cabranis in his dissent pointed out, in some cases it's simply used to denote that an issue is so clear and unbambiguous that we're going t state the rule of law. it's generally where you're doing something fairly in a very cursory passion either because a district court judge has done a thorough job -- >> which was the case in this case, was a very voluminous opinion that i believe was over 50 pages long, is that correct? >> i keep saying 78 because that's what i reviewed. >> right, over 50 in any event. >> and as i said, my circuit did

that in a case where i addressed as a district court judge a case of first impression on a constitutional -- direct constitutional issue, the suspension clause, or it can have -- on%f@@@@@@ b)@ @ @ @ @ a >> it's an unpublished opinion, i believe, is that correct? >> yes. >> and it was a racially mixed group of male and female lieutenants, took the test, the results came in, the test was canceled. and the court upheld the cancellation. >> yes. >> so this -- your case is not

starkly out of the mainstream. and the reason i say this is going back to my days of mayor, particularly in the 1980s when there were many courts and many decisions involving both our police and fire departments, and it was a very controversial area of the law. but the point i wanted to make is there is precedent. and this is certainly one of them. >> i would agree that it was precedent. i won't choose to quarrel with the supreme court's decision. >> right. i'm not asking you to. now, many have made comments regarding your latina -- "wise latina" comment, and i'd like to take a moment to put your comments in the context of the experiences of women. and this country is built on very great accomplishments. we forged a new country. we broke away from the british. we wrote documents that have

stood the test of time. the declaration of independence, the constitution, the bill of rights. but we also have a history of slavery, segregated schools, of employment discrimination, of hate crimes, and unspoken prejudices that can make it very hard for individuals to be treated fairly or even to believe that they can do well in this society. so i understand empowerment and the role that it plays. everything has been hard fought. we as women didn't have the right to vote until 1920. and that was after a tremendous battle waged by a group of very brave women called suffragettes. when you graduated law school in 1979, there had never been a woman on the supreme court. today women represent 50.7% of the population. 48% of law school graduates and

30% of american lawyers, but there are only 17 women senators and only 1 woman is currently serving on the supreme court, and we still make only 78 cents on the dollar than a man makes. so we're making progress, but we're not there yet. and we should not lose sight of that. my question is, as you have seen this, and you must have seen how widely broadcast this is, that you become an instant role model for women. and how do you look at this, of your appointment to the court affecting empowerment for women? and i'd be very interested in any comment you might make, and this has nothing to do with the law. >> i chose the law because it's more suited to that part of me that's never sought the kind of

attention that public figures -- other public figures get. when i was in law school, some of my friends thought i would go into the political arena, not knowing that what i thought was more the life of a judge, the thinking involved in that and the process of the rule of law. my career as a judge has shown me that regardless of what my desires were, that my life, what i have accomplished, does serve as an inspiration for others. it's a sort of awesome sense of responsibility. it's one of the reasons that i do so many activities with people in the community, not just latinos, but all groups because i understand that it is

women. it's latinos. it's immigrants. it's americans of all kinds and all backgrounds. each one of us faces challenges in our life. whether you were born rich or poor, of any color or background, life's challenges place hurdles every day. and one of the wonderful parts of the courage of america is that we overcome them. and i think that people have taken that sense that on some levels i've done some of that at various stages of my life. and so for me, i understand my responsibility. that's why i understand and have tried as much as i can to reach out to all different kinds of groups and to make myself as available as much as i can. often i have to say no. otherwise i'd never work. i meet my responsibilities and work very hard at my job.

but i also know i have a responsibility to reach out. >> well, for whatever it's worth, i think you're a walking, talking example of the best part of the united states of america. and i just want to say how very proud i am that you are here today. and it is my belief that you are going to be a great supreme court justice. and i just wanted to say that to you directly and publicly. thank you. thank you, mr. chairman. >> thank you. that was great. >> thank you. >> senator graham. >> thank you, mr. chairman. and something i would like to say to you directly and publicly and with admiration for your life story is that a lot of the wrongs that have been mentioned, some have righted, some have yet to come, judge, i hope you understand the difference between petitioning one's government and having a say in the electoral process and voting

for people that if you don't like you can get rid of, and the difference of society being changed by nine unelected people who have a lifetime appointment. do you understand the difference in how those two systems work? >> absolutely, sir. i understand the constitution. >> and the one thing i can tell you -- this will probably be the last time we get to talk in this fashion. i hope to have a chance to get to know you better, and we'll see what your future holds. but i think it's going to be pretty bright. the bottom line is, one of the problems the court has now is that mr. richie has a story to tell, too. there are all kinds of stories to tell in this country. and the court has, in the opinion of many of us, gone into the business of societal change not based on the plain language of the constitution, but based on motivations that can never be

checked at the ballot box. brown versus board of education is instructive in the sense that the court pushed the country to do something politicians were not brave enough to do. certainly we're not brave enough in my state. and if i had been elected as a senator from south carolina in 1955, the year i was born, i would be amazed if i would have had the courage of a judge johnson in the political arena. but the court went through an analysis that separate was not equal. it had a basis in the constitution after fact finding to reach a reasoned conclusion in the law and the courage to implement that decision. and society had the wisdom to accept the court's opinion even though it was contentious and

literally people died. we're going to talk about some very difficult societal changes that are percolating in america today like who should get married. and what boundaries are in the definition of marriage? and who's best able are the most capable of making those fundamental decisions? the full faith and credit clause in essence says that when a valid enactment of one state is entered into, the sister states have to accept it. but there's a public policy exception in the full faith and credit clause. are you aware of that? >> i am. applied in different situations. >> some states have different age limits for marriage. some states treat marriage differently than others. and the court's deferred based on public policy. the reason these speeches matter and the reasons elections matter

is because people now understand the role of the court in modern society when it comes to social change. that's why we fight so hard to put on the court people who see the world like us. that's true from the left, and that's true from the right. and let me give you an example of why that's important. we've talked a lot about the second amendment whether or not it is a fundamental right. we all now agree it is an individual right. is that correct? >> correct. >> well, that's groundbreaking precedent in the sense that just until a few months ago, or last year, i guess, that was not the case, but it is today. it is the law of the land by the supreme court, the second amendment is an individual right. and you acknowledged that. that's correct? >> that was -- decision, and it

is what the court has held, and so it is unquestionably an individual right. >> but here's the next step for the court. you will have to, if you get on the court, with your fellow justices, sit down and discuss whether or not it is a fundamental right to the point that it is incorporated through the due process clause of the 14th amendment and applied to every state. isn't it fair to say, judge, that when you do that, not only will you listen to your colleagues, you will read whatever case law is available, you're going to come down based on what you think america's all about. >> no, sir. >> so what binds you when it comes to a fundamental right? >> the rule of law. and -- >> in the rule of law when it comes to what you consider to be a fundamental right, your

opinion as to what it fundamental among all of us? >> no. in fact, the question that you raise, is it fundamental in the sense of the law -- >> right. >> -- that's a legal term, is very different. and it is important to remember that the supreme court's precedent on the second amendment predated its more wholesome development -- >> i hate to interrupt. is there sort of a legal cookbook you can go to and say this is a fundamental right, "a," and "b" is not? >> well, there's not a cookbook, but there was precedent established after the older precedent that has talked and described that doctrine of incorporation. that's a set of precedents that -- >> are you talking about the 189d 0 case? >> yes. well, the 1890 case was the supreme court's upholding on

this issue. but since that time, there has been a number of decisions discussing the incorporation doctrine applying it to different provisions of the constitution. >> is there any personal judgment to be relied upon by a supreme court justice in deciding whether or not the second amendment is a fundamental right? >> well, you hire judges for their judgments, not their personal views or what their sense of what the outcome should be. you hire your point judges for the purpose of understanding whether they respect law, whether they respect precedent and apply it -- >> i don't doubt that you respect the law, but you're going to be asked, along with eight other colleagues if you get on the court, to render a decision as to whether or not the second amendment is a

fundamental right shared by the american people. there is no subjective judgment there. >> the issue will be controlled by the court's analysis of that question in the case, fundamental is defined by incorporation and likely will be looked at by the court in a case that challenges a state regulation. at that -- i'm sorry. at that point i would presume that the court will look at its older precedent and the way it did in heller, consider whether it controls the issue or not. it will decide, even if it controls it, whether it should be revisited under the doctrine of stare decisis. it could decide it doesn't control. it could decide it does control but it should revisit it.

in revisiting it, it will look at a variety of different factors. among them, have there@@@@@@ @ @@ wrong, then. maybe i'm off base here. maybe, you know, you've got the seventh circuit talking about the heller case did not decide the issue of whether it should be incorporated to the states because it's only dealt with the district of columbia. you've got the ninth circuit -- and i never thought i'd live to hear myself say this. look at the ninth circuit. they have a pretty good rationale as to why the second amendment should be considered a

fundamental right. and they talked about the longstanding relationship of the english man, and they should have put woman, at least in south carolina, that would have applied, to gun ownership. they talked about it was this right to bear arms that led to our independence. it was this right to bear arms that put down a rebellion in this country. and they talked about who we are as a people and our history as a people. and judge, that's why the supreme court matters. i do believe, at the end of the day, you're not going to find a law book that tells you whether or not a fundamental right exists vis-a-vis the second amendment that you're going to have to rely upon your view of america who we are, how far we've come and where we're going to go in our relationship to gun ownership.

that's why these choices are so important. and here's what i'll say about you. and you may not agree with that, but i believe that's what's you're going to do. and i believe that's what every other justice is going to do. and here's what i will say about you. i don't know how you're going to come out on that case. because i think fundamentally, judge, you're able, after all these years of being a judge, to embrace a right that you may not want for yourself to allow others to do things that are not comfortable to you but for the group, they're necessary. that is my hope for you. that's what makes you to me more acceptable as a judge and not an activist because an activist would be a judge who would be chomping at the bit to use this wonderful opportunity to change america through the supreme

court by taking their view of life and imposing it on the rest of us. i think and believe, based on what i know about you so far, that you're broad-minded enough to understand that america is bigger than the bronx, bigger than south carolina. now, during your time as an advocate, do you understand identity politics? what is identity politics? >> politics based simply on a person's characteristic shadowily referred to either race or ethnicity or gender, religion. it is politics based on -- >> do you embrace identity politics personally? >> personally as a judge i don't in any way embrace it as to

judging. as a person, i do believe that certain groups have and should express their views on whatever social issues may be out there. but as i understand the word "identity politics," it's usually denigrated because it suggests that individuals are not considering what's best for america. that's my -- and that i don't believe in. i think that whatever a group advocates, obviously it advocates on behalf of its interests and what the group thinks it needs, but i would never endorse a group advocating something that was contrary to some basic constitutional right as it was known at the time. although people advocate changes in the law all the time. >> do you believe that your speeches properly read embrace identity politics? >> i think my speeches embrace

the concept that i just described, which is you have interests that you should seek to promote. what you're doing is important in helping the community develop. participate. participate in the process of your community. participate in the process of helping to change the conditions you live in. i don't describe it as identity policies because politics because it's not that i'm advocating that groups do something illegal. >> well, judge, to be honest with you, your record as a judge has not been radical by any means. it's to me left of center, but your speeches are disturbing, particularly to conservatives, quite frankly, because they don't talk about get involved, go to the ballot box, make sure you understand that america can be whatever you'd like it to be. there's a place for all of us.

it really did -- to suggest those speeches to me suggested gender and racial affiliations in a way that a lot of us wonder, will you take that line of thinking to the supreme court in these cases of first precedent? you have been very reassuring here today and throughout this hearing that you're going to try to understand the difference between judging and whatever political feelings you have about groups or gender. now, when you were a lawyer, what was the mission statement of the puerto rican legal defense fund? >> to promote the civil rights and equal opportunity of hispanics in the united states. >> during your time on the board -- and you had about every job a board member could have -- is it a fair statement to say that all of the cases embraced

by this group on abortion advocated the woman's right to choose and argue against restrictions by state and federal government on abortion rights? >> i didn't -- i can't answer that question because i didn't review the briefs. i did know that the funds had a health care docket that included challenges to certain limitations on a woman's right to terminate her pregnancy under certain circumstances. >> judge, i may be wrong, but every case i've seen by the puerto rican legal defense fund advocated against restrictions on abortion, advocated federal taxpayer funding of abortion for

low-income women. across the board, when it came to the death penalty, it advocated against the death penalty. when it came to employment law, it advocated against testing and quotas. i mean, that's just the record of this organization. and the point i'm trying to make is that whether or not you advocate those positions and how you will judge can be two different things. i haven't seen in your judging this advocate that i saw or this board member. but when it came to the death penalty, you filed a memorandum with the puerto rican legal defense fund in 1981 -- and i would like to submit this to the record -- where you signed this memorandum and you basically said that the death penalty should not be allowed in america because it created a racial bias, and it was undue burden on the perpetrator and their family. what led you to that conclusion in 1981?

>> the question in 1991 -- >> '81. >> '81, i misspoke about the year. an advocacy by the fund taking a position on whether legislation by the state of new york outlawing or permitting the death penalty should be adopted by the state. i thank you for recognizing that my decisions have not shown me to be an advocate on behalf of any group. that's a different -- dramatically different question than what -- whether i follow the law. and in the one case i had as a district court judge, i followed the law completely. >> the only reason i mention this, when alito and roberts were before this panel, they were asked about memos they wrote in the reagan administration, clients they represented, a lot, to try to suggest that you -- if you wrote a memo about this area of the

law to your boss, ronald reagan, you must not be fit to judge. well, they were able to explain the difference between being a lawyer in the reagan administration and being a judge. and to the credit of many of my democratic colleagues, they understood that. i'm just trying to make the point that when you were an advocate, when you were on this board, the board took positions that i think are left of center. and you have every right to do it. have you ever known a low-income latino woman who was devoutly pro-life? >> yes. >> have you ever known a low-income latino family who supported the death penalty? >> yes. >> so the point is, there are many points of view within groups based on income. you have, i think, consistently as an advocate took a point of view that was left of center.

you have as a judge been generally in the mainstream. the richie case, you missed one of the biggest issues in the country, or you took a pass. i don't know what it is. but i am going to say this. that as senator feinstein said, you have come a long way. you have worked very hard. you have earned the respect of ken starr. and i would like to put his statement in the record. and you have said some things that just bugged the hell out of me. >> may i -- >> the last question on the wise latina woman comment. to those who may be bothered by that, what do you say? >> i regret that i have offended

some people. i believe that my life demonstrates that that was not my intent to leave the impression that some have taken from my words. >> you know what, judge? i agree with you. good luck. >> thank you. senator durbin has actually responded to my so far being request that senators may want to pass on the basis that all questions may have been asked, not everybody has asked them, but senator kopitar yesterday had serious and succinct areas she was asking. i know time ran out and i'll yield to her because she may want to follow on those. >> thank you very much, mr. chair, and thank you again, judge. i think they've turned the air conditioning on, so this is

good. i just had two quick follow-ups following senator graham's question. the first is that the only death penalty case that i know of, there may be another one that you ruled on, the heatley case, you, in fact, sustained the death penalty in that case, is that correct? >> i sustained -- or i rejected the chal collelenges of the def that application of the death penalty to him was based on race. >> okay, thank you. and the second one, senator graham mentioned the issues of justice roberts and the difference between advocate and a judge. and i just came across the quote that justice roberts gave about his work during the reagan administration. and he said, "i can give the commitment that i appreciate that my role as a judge is different than my role as a staff lawyer for an administrati administration. as a judge, i have no agenda. i have a guide in the constitution and the laws and the precedents of the court.

and those are what i would apply with an open mind after fully and fairly considering the arguments and assessing the considered views of my colleagues on the bench." would you agree with that statement? >> wholeheartedly. >> all right, thank you. there were some letters that have not yet been put on the record. and they're quite a collection of letters. i considered reading them all on the record, but thought better of that. so i thought i would ask the chair if i could put these letters on the record. and these are letters of support for you from, first of all, the national fraternal police, the police executive research forum, the national enforcement of black law enforcement executives, the national latino peace officers association, the new york state law enforcement council, the national district attorney's association, the association of prosecuting

attorneys, the national association of police organizations, the national sheriffs association, the major city chiefs association, the #á)k@ @ @ @ @ @ @ @ @ @ @ @ @ @ support. and i want to note two very brief portions. the one from the police executive research forum reads, sotomayor went out of her way to stand shoulder to shoulder with those of us in public safety at a time when new york city needed strong, tough and fair prosecutors. and then also the letter from your colleagues i found very enlightening. it was much more personal. it said that she began as a rookie in 1979 working long

hours prosecuting an enormous caseload of misdemeanors before judges managing overwhelming dockets. sonia so distinguished herself in this challenging assignment that she was among the very first in her starting class to be selected to handle felonies. she prosecuted a wide variety of felony cases including serving as co-counsel at a notorious murder trial. she developed a specialty in the investigation and prosecution of child pornography cases. throughout all of this, she impressed us as one who was singularly determined in fighting crime and violence. for sonia's service as a prosecutor was a way to bring order to the streets of a city she dearly loved. we are proud to have served with sonia sotomayor. she solemnly adheres to the rule of law and believes that it should be applied equally and fairly to all americans. as a group, your former colleagues say, we have different world views and political affiliations, but our support for sonia is entirely nonpartisan.

and the fact that so many of us have remained friends with sonia over three decades speaks well, we think, of her warmth and collegiality. pretty nice letter. in reading these letters from these law enforcement groups, there was just one follow-up case that you had that i wanted to allow you to enlighten the country about. and this is one that former new york police detective chris monino spoke about recently in an article. and he spoke about a case you worked on as district attorney. he talked about -- it was a child pornography case -- how he had gone to various prosecutors to try to get them interested in the case. and he couldn't get them interested. and i have some guesses, some of these cases, as you know, can be very involved with a lot of evidence and sometimes computer forensics and things like that. but he wasn't able to interest them in taking on the case. but you were the one that was willing to take on the case. and it led to the prosecution of

two perpetrators. could you talk a little bit about that case, why you think others didn't, why you decided to take on the case? >> well, i can't speak to why others decided to pass on the case. i can talk to you about my views at the time. the new york court of appeals had invalidated the new york statute on child pornography on the grounds of a constitutional violation, federal constitutional violation. the statute did not comport with the federal constitution. the supreme court took that case directly from the court of appeals, as is its right to review all issues of federal constitutional law. and reversed the new york board of appeals and reinstated the statute. my sense is because there were still so many open questions

about both the legality of the statute and the question of the difficulty in proving the particular crime at issue that involved two men who worked in a change of -- chain of adult bookstores in the then times square area -- times square has changed dramatically since that ti time. it was mostly circumstantial. we had some tape, but their knowledge of what those tapes contained, their intent to sell and distribute child pornography involving children below a certain age, it was a difficult, difficult legal and factual case. but it was clear that it was a serious case. we're talking about the

distribution of films that show children who were anywhere from 8 years old to 12 years old being explicitly sexually abused. and it seemed to me that regardless of the outcome of the case, whether i secured the convictions or not, whether it was held up on appeal or not, that the issues it raised had to be presented in court because of the importance of the crimes. and so i brought the prosecution. i had a co-counsel in that case who was conceding me in that case, meaning she was assisting me. and the case took a while at trial. because as i said, it was circumstantial. the jury returned their verdict against both defendants. they were sentenced quite severely. and the case has held up on

appeal. it was an enormously complicated case. i assisted in the appeal because it was so complicated that one of the heads of the appeals division of the new york county district attorney's office had to become involved in it. but the convictions were sustained. and so the effort resulted in a conviction of two men who were distributing films that had the violence of sexual acts portrayed against children. >> and one last case i wanted to ask you about which the chairman had briefly mentioned in his opening, and it was a troubling case because it involved an elected official, it was -- giordano. and this case happened when you were a judge. it involved very troubling facts with the mayor of waterbury, connecticut, in a variety of

crimes stemming from his repeated sexual abuse of minor daughter and the niece of a prostitute. and you wrote for the majority in that case. there was actually a dissent from one of your fellow judges on the second circuit. you held in part that the mayor could, in fact, be charged with the separate crime of violating the young girl's civil rights under the color of state law. and i think -- and i don't want to put words in your mouth -- but the reason you were able to use that theory is that you noted how frequently the mayor reiterated to his young victims that they would be in trouble with law enforcement if they didn't submit to what he wanted them to do. could you talk about how that case fits into your overall approach to judging? >> as i have indicated, the role of a judge is to look at congre

congress and statute and discern its intent. and in cases that present new facts, you must take existing precedents and apply the teachings of those precedents to those new facts. in the giordano case, there had not been a situation quite like this one. this was a mayor who, working through a woman, secured sexual acts by very young girls that were taking place in his office. and through the woman he was working with and also through his own exhortation, "don't tell anybody, you'll get into trouble," and the woman's compo

exhortation to the child, the woman he was conspiring with, that they would get in trouble with the police because the police wouldn't believe them. they would believe him because he was a mayor. the question for the court became, is that acting under color of state law? is he using his office to promote this illegal activity against these young girls? the majority viewing these facts said yes. that's the principles we've discerned from precedent about what the use of state law -- of acting under color of state law means. the dissent disagreed. and it disagreed using its own rationale about why the law should not be read that way. but these are cases that rely upon an understanding both of what the works say and how precedent has interpreted them. that's what the month jort of

the panel did in that case. >> thank you very much. i think it's been enlightening for people to hear about some of your views on these criminal cases. i'd just like to ask one last question. and it's the exact question that my friend and colleague senator graham asked chief judge roberts at his confirmation hearing. and he asked, what would you like history to say about you when all is said and done? >> i can't live my life to write history's story. that will be the job of historians long after i'm gone. some of them start now, but long after i'm gone. in the end, i hope it will say i'm a fair judge, that i was a caring person, and that i lived my life serving my country. >> i think you can't say much more than that. thank you very much, judge.

>> thank you, judge. i appreciate that. thank you, senator. senator cornyn who, as i mentioned yesterday, is a former supreme court judge of texas as well as former attorney general, valued member of this committee. senator cornyn. >> thank you, chairman. good morning, judge. >> good morning, senator. >> judge, when we met the first time, as i believe i recounted earlier, i made a pledge to you that i would do my best to make sure you were treated respectfully and this would be a fair process. i just want to ask you up front, do you feel like you've been given a chance to explain your record and your judicial philosophy to the american people? >> i have, sir. and every senator on both sides of the aisle that have made that promise to me have kept it fully. >> and judge, you know the test is not whether judge sonia

sotomayor is intelligent, you are, the test is not whether we like you. i think speaking personally, i think we all do. the test is not even whether we admire you or we respect you, although we do admire you and respect what you've accomplished. the test is really what kind of justice will you be if confirmed to the supreme court of the united states? will you be one that adheres to a written constitution and written laws and respect the right as a people to make their laws through their elected representatives, or will you pursue some other agenda, personal, political, ideological that is something other than enforcing the law? i think those are the -- that is really the question. and, of course, the purpose of these hearings, as you've gone through these tedious rounds of questioning, is to allow us to

clear up any confusion about your record and about your judicial philosophy. yet so far i find there's still some confusion. for example, in 1996, you said the idea of a stable, quote, capital "l" law was a public myth. this week you said that fidelity to the law is your only concern. in 1996, you argued that indefiniteness in the law was a good thing because it allowed judges to change the law. today you characterized that argument as being not only that ambiguity can't exist, and it is congress' job to change the law. in 2001 you said that innate physiological differences of judge would or could impact their decisions. yesterday you characterized that argument as being that only innate physiological differences of litigants could change decisions. in 2001 you disagreed explicitly

with justice o'connor's view of whether a wise man and a wise woman would reach the same decision. yet during these hearings you characterize your argument as being that you agreed with her. a few weeks ago in your speech on foreign law to the american civil liberties union, you rejected the approach of justices alito and thomas with regard to foreign law. and yet it seems to me during these hearings, you have agreed with them. so judge, what should i tell my constituents who are watching these hearings and saying to themselves in berkeley and other places around the country, she says one thing, but at these hearings, you are saying something which sounds contradictory, if not diametrically opposed, to some of the things you've said in speeches around the country?

>> i would tell them to look at my decisions for 17 years and note that in every one of@@@@@@ way i have on the basis of law, rejecting those claims. i would ask them to look at the speeches completely, to read what their context was, and to understand the background of those issues that are being discussed. i didn't disagree with what i

understood was the basic premise that justice o'connor was making which was that being a man or a woman doesn't affect the capacity of someone to judge fairly or wisely. what i disagreed with was was the literal meaning of her words because neither of us meant the literal meaning of our words. my use of her words was pretty bad in terms of leaving a bad impression. but both of us were talking about the value of experience and the fact that it gives you equal capacity. in the end, i would tell your constituents, senator, look at my record and understand that my record talks about who i am as a person, who i believe in, and my judgment and my opinion,

following the rule of law is the foundation of our system of justice. >> thank you for that -- for your answer. judge, you know, i actually agree that your judicial record strikes me as pretty much in the mainstream of judicial decision-making by district court judges and by court of appeals judges on the federal bench. and while i think what is creating this cognitive discy dense for many of us and for many of my constituents who i've been hearing from is that you appear to be a different person almost in your speeches and in some of the comments that you made. so i guess part of what we need to do is to try to reconcile those, as i said earlier. you said that -- i want to pivot to a slightly different subject and go back to your statement that the courts should not make law. you've also said that the supreme court decisions that a

lot of us believe made law actually were an interpretation of the law. so i would like for you to clarify that. if the supreme court in the next few years hold s that there is constitutional right to same-sex marriage, would that be making the law, or would that be interpreting the law? i'm not asking you to classify -- excuse me, i'm not asking you to prejudge that case or the merits of the arguments, but just to characterize whether that would be interpreting the law or whether that would be making the law? >> nsenator, that question is s embedded with its answer, meaning if the court rules one way, it's making law that forecasts that i have a particular view of whatever arguments may be made on this issue suggesting that it's interpreting the constitution. i understand the seriousness of

this question. i understand the seriousness of same-sex marriage. but i also know, as i think all america knows, that this issue is being hotly debated on every level of our three branches of government. it's being debated in congress, and congress has passed an act relating to same-sex marriage. it's being debated in various courts on the state level, certain higher courts have made rulings. this is the type of situation where even the characterizing of whatever the court may do as one way or another suggests that i have both prejudged an issue and that i come to that issue with my own personal views suggesting an outcome. and neither is true. i would like at that issue in the context of the case that came before me with a completely open mind.

>> forget the same-sex marriage hypothetical. is there a difference in your mind between making the law and interpreting the law? or is that a distinction without a difference some >> oh, no. it's a very important distinction. laws are written by congress. c. it has -- makes factual findings, it determines in its judgment what the fit is between the law it's passing and the remedy it's that it's giving as a right. the courts when they are interpreting always has to start with what is the constitution say, what is the words of the constitution, how has precedent interpreted those? what are the principles that it has discussed govern a particular situation. >> how do you reconcile that answer with your statement that courts of appeals make policy?

>> in both cases in which i've used that word in two different speeches, one was a speech and one was a remark to students, this is almost like the discussion about fundamental, what does it mean to an amental it means in supreme court theory? >> are you saying it's a theory only lawyers could love? >> not love. but in the context it is very clear that i'm talking about completely the difference between the two judgings and that circuit courts when they issue a holding, it becomes precedent on all similar cases. in both comments, those -- that statement was made absolutely expressly that that was the context of the kinds of policy i was talking about, which is the ramifications of a precedent on all similar cases.

when congress talks about policy, it is talking about something totally different. it is talking about making law, what are the choices that i'm going to make in law. in making the law, those are two different things. i wasn't talking about courts making law. in fact, in the duke speech, i said, i used making policy in terms of its ramifications on existing cases, but i never said in either speech we make law in the sense that congress would. >> let me turn to another topic. in 1996, when you -- after you had been on the federal bench for four years, you wrote a law review article. and this pertains to campaign financing. you said, quote, our system of election financing permits extensive private including corporate financing of candidate's campaigns. raising again and again the question of what the difference

is between contributions and bribes. and how legislators or other officials can operate objectively on behalf of the electorate. you said, can elected officials say with credibility that they are carrying out the mandate of a democratic society representing only the general public good when private money plays such a large role in their campaigns? judge sotomayor, what is the difference in your mind between a political contribution and a bribe. >> the context of that statement was a question about what was perking through the legal system at the time it has been before the courts since buckley -- in buckley -- >> i agree, your honor, my question is, what in your mind is the difference between a political contribution and a bribe? >> the question is a contributor

seeking to influence, there are situations in which elected officials have been convicted of taking a bribe because they have agreed in exchange for a sum of money to vote on a particular legislation. the difference between what the law permits and what individuals should use to guide their conduct, the fact that law says you can do this, doesn't always mean you as a person should choose to do this.

and in fact we operate within the law, you should not be a law breaker, but you should ask in situations according to that sense of what's right or wrong. we have the recent case that the supreme court considered of the judge who was given an extraordinary amount of money by a campaign contributor dwarfing everything else in his campaign in terms of contributions and very expensive campaigns -- >> that was not a direct contribution to the judge, was it? >> it wasn't a direct contribution, but it was a question there where the supreme court said the appearance of impropriety in this case would have counselled the judge to get off -- >> let's get back to my question, if we can. last year, president obama set a record in fund raising from

private sources raising a unprecedented amount of campaign contributions. do you think given your law review article that president obama can say with credibility that he's carrying out the mandate of a democratic society? >> that wasn't what i was talking about in that speech. -- >> what i'm getting at is, are you basically painting with a such a broad brush when it comes to people's rights under the first amendment to participate in the political process, either to volunteer their time, make any kind of contributions and make financial contributions, do you consider that a form of bribery or in any way improper? >> no, sir. >> thank you for your answer. >> in the short time we have remaining, let me return to the new haven firefighter case briefly.

as you know, two witnesses i believe will testify after you're through and i'm sure you'll welcome being finished with this period of questioning, a lot of attention been given to the lead plaintiff, frank richie, who is dis lexic. i was struck on july the 3rd in the new york times when they featured another firefighter who will testify here today and that was benjamin vargas, the son of the puerto rican parents and found himself in the odd position to say the least, of being discriminated against based on his race. based on the decision by the circuit court panel that you sat on. the closing of the article,

because lieutenant vargas, who hopes to be captain vargas as a result of the supreme court decision because he scored sixth on the competitive examination, at the very last paragraph in this article, it says gesturing towards his three sons, lieutenant vargas explained whi he had no regrets. i want to give them a fair shake, to get a job on the merits. not because they are hispanic or to fill a quote ta. he said what a lousy way to live. that's his testimony. i want to ask in conclusion, do you agree with chief justice john roberts when he says the best way to stop discriminating based on race is to stop discriminating based on race? >> the best way to live in our

society is to follow the commands of the constitution. provide equal opportunity for all. and i follow what the constitution says that it's how the law should be structured and how it should be applied to whatever individual circumstances come before the court. >> with respect, judge, my question, do you agree with chief justice john roberts statement or do you disagree? >> the question of agreeing or disagreeing suggests an opinion on what the ruling was in the case he used it in. and i accept the court's ruling in that case. and that was a very recent case. there's no quarrel that i have, no disagreement, i don't accept that in that situation that statement the court found applied. i just said the issue is a constitutional one, equal opportunity for all under the law. >> i understand that you might

not want to comment on what chief justice john roberts wrote in an opinion, even though i don't thing he was speaking of a specific case but rather an approach to the law to treat us as equal individuals with equal rights. let me ask whether you agree with martin@@@@@ kn#a a a sa&a

short break. does that work for you, judge? >> it most certainly does. senator specter is recognized for up to 20 minutes. >> thank you, mr. chairman. judge sotomayor, you have been characterized as running a hot courtroom, asking tough questions. we say popping out of the supreme court opinions from time to time statements about pretty tough ideologue cal battles in the conference room. justice scalia was quoted as saying, the court must be living in another world, busy designing a constitution for a country i do not recognize. referring to a woman's right to choose and roe v wade, a

fundamental rule of judicial restraint requires us to avoid reconsidering roe cannot be taken seriously. do you think it possible that if confirmed, you will be a litigator in that conference room, take on the idea logical battles that pop up from time to time from what we read in their opinions? >> i don't judge on the basis of ideology. i judge on basis of the law and my reasoning. that's how i have imported myself in the circuit court. when my colleagues and i in many cases have initially come to disagreeing positions, we've discussed them and either persuaded each other, changed each other's mind and worked from the starting point of

arguing, discussing, exchanging perspectives on what the law commands. >> perhaps you'll be tempted to be a tough litigator in the court, time will tell if you're confirmed if you have some of those provocative statements. let me move on to a case which you have decided. you have been reluctant to make comments about what other people have said. but i want to ask you about your view as to what you have said. in the case of riverky, which involved the question, which is very important to matters now being considered by congress on climate control and global warming. you ruled in the second circuit that the best technology should be employed, not the cost benefit. supreme court reversed 5-4. saying it was cost benefit. could we expect you to stand by

your interpretation of the clean water act when if confirmed you get to the supreme court and can make that kind of a judgment because you're not bound by precedent? >> i am bound by precedent to the extent that all -- entitled to the respect. it -- to respect under the doctrine of stare decisis. to the extent the supreme court has addressed this issue in its per missibility under the clean water act, that's the holding i would apply to any new case and the framework established is the framework i would employ to new cases. >> let me return to a subject i raised yesterday, butperspectiv. that is the issue of the supreme court taking on more cases. in 1886, there were 451 cases

decided by the supreme court and 1985. 161 signed opinions and in 2007 only 67 signed opinions. the court has not undertaken cases involving circuit splits in the letter i wrote to you, which will be made part of the record, listing a game circuit splits and the problems that that brings when one circuit decides one way, another circuit another. and the other circuits are undecided and the supreme court declines to take cases. do you agree with what justice scalia said dissenting where the court refers to take a key circuit split that when the court decides not to quote, it seems to me, quite irresponsible

to let current chaos prevail with other courts not knowing what to do, or stated differently, do you think supreme court has time to and should take up more circuit splits? >> it does appear that the supreme court's docket has lessened over time, the decisions its addressing. because of that it certainly does appear that it has the capacity to accept more cases. and the issue of circuit split is one of the factors that the courts own local rule set out as a consideration for justices to think about in the search process. so in answer to your question, direct answer is yes, it does appear that it has the capacity.

>> the current rule in the supreme court is that petitions for -- there is a so-called sur poole. where 7 of the 9 justices, do not participate in the, that people applying don't have the independent judgment, when chief justice roberts was a -- before he became chief justice, he said that the cert pool's power is a little disquieting. would you maintain an independent status in having their own clerks and own

individual review as to whether it ought to be granted? >> i would probably do what justice alito did, although i haven't decided if i'm given the honor of becoming a member of the supreme court, i haven't decided anything. i'm not even sure where i would live in new york if -- in washington, but putting that aside, senator, my approach would probably be similar to justice alito, which is experience the process, take for a period of time consider its cost and benefit and then decide whether to try the alternative or not and figure out what i think works best in terms of the functioning of my chambers and the court. i can't give a definitive answer because i generally trying to keep an open mind until i experience something and can then speak from knowledge about

whether to change it or not. >> judge so to mayor, you have have had experience on the pilot program conducted by the judicial, federal judicial conference. and these were the conclusion reached by the pilot program. they said, quote, attitudes of judges towards electronic media coverage of civil proceedings were initially neutral and came favorable after experience under the pilot program. judges and attorneys who have experience with media coverage under the program generally reported observing a small or no effects of the camera presence on participants and proceedings, courtroom decorum or the administration of justice. would you agree with that based on your own personal experience based on having television in your courtroom?

>> my experience was limited. i can't speak to the more broad conclusion of that report. i can say that as i -- as we discuss when i met with you senator, mine was positive in the two cases i believe i only had two cases where the media asked to record a proceeding. i may not remember others but i do remember two. own the circuit court, we do provide tapes upon request. and some media has asked to record our oral arguments, but my experience has generally been positive. and i would certainly be able to recount that. >> c-span has conducted a survey which shows that 61% of the american people would like to

see the supreme court televised and in the survey, it disclosed how little the american public knows about the supreme court. chairman, i would ask consent this be included in the record. >> without objection it will be included in the record. >> the interest that has been generated by this confirmation proceeding encouraged by the television shows, the enormous interest that people have in what the court does. and there has been a fair amount of coverage by the justices on television as i cited yesterday. many have appeared on television. justice kennedy says he believes the television is inevitable. everybody has said who's testified that there's a grave concern about the collegiatety and people do not want to make

an opinion before talking to colleagues. if anyone has a strong objection and justice suitor has noted that if tv cameras come to the court, they would have to come in over his dead body and his body won't be there at all. would you tell your colleagues, the favorable expression experience that you've had with television in your courtroom and perhaps take the role in encouraging your colleagues to follow that experience for the supreme court? >> i would certainly relay my experiences to the extent some of them may not know about the pilot study in many courts, i would share that with them. and will participate in discussions with them on this

issue. and those things i would do, senator. >> some of my colleagues have questioned whether as you stated your panel in the maloney case was really bound by supreme court precedent. the seventh circuit reached the same decision your panel did. and in that opinion written by highly respected republican judge, frank easterbrook, the seventh circuit pointed out that declined to reconsider older supreme court cases which have held second amendment applies only to the federal government. judge easterbrook wrote, that does not license inferior courts to go their own way. it just notes the older precedent is open to reexamination by the justices themselves when the time comes. that was your court's conclusion

also, wasn't it? >> it was. and i understand having reviewed justice easterbrook's opinion that he agreed with the reasoning of maloney on that point. >> i want to return to the issue of basic authority, responsibility of the supreme court to decide the major cases on separation of power. there was a case whichle supreme court denied a couple of weeks ago involving claims for benefits brought by survivors of victims of september 11th against certain individuals in saudi arabia. this case caused a conflict.

congress had legs lated under sovereign immunity in 1976 that claims like flying an airplane into the world trade center were an exception to sovereign immunity and the executive branch interposed objections to having that case decided because of the sensitivity of matters with saudi arabia. and the case involved circuit splits and a very, very important matters in that tragedy, which you've commented reached you being very close to the incident. don't you think that that's the kind of a case the supreme court should have heard to decide that kind of very basic conflict between article 1 powers of the congress and article 2 powers of the executive?

>> senator, obviously, issues related to september 11th and national security are very important issues to the country as a whole. for the reasons i mentioned earlier, i lived through september 11th, so i understand it's great tragedy and effect on america. the question you asked me, though, is one that asks me to make judgment about an act the supreme court has done. and i didn't participate in their discussions. i didn't review the cert petitions and talk with them their reasons. it would seem and is inappropriate to me to comment on a question that i wasn't a party to in making the decision. >> would you at least degragreeh

a proposition that conflicts between the congress and executive branch are of the highest duty for the supreme court to consider and to decide? >> the -- all conflicts under the constitution -- all issues arising from the constitution are important. >> i know that. that's a pretty easy question to answer. i'm not asking you to agree with justice roberts that the court ought to take more cases, which seemed to me to be pretty easy. the question about justice scalia saying that there's turmoil when the circuit split and you don't have the supreme court taking -- isn't that of the highest magnitude. our discussions here have involved a great many issues. but i would suggest to you on

separation of powers and when you undertake the role of the congress contrasted with the role of the president. congress's article 1 was placed with privacy because we're closest to the people. when you have a comment like the terrorist surveillance program which flatly contradicts. the enactment on the foreign surveillance intelligence act, only way to get a wiretap is with court approval and the sixth circuit dodges the case on standing with very questionable grounds and the supreme court won't even hear it. and you have a case involving september 11th and a very blatant conflict between congress powers expressed under article one with the sovereign

immunities act and the president stepping in under foreign powers, isn't that a category of the highest magnitude? >> it is so difficult to answer that question in the abstract. for the reason i've just explained, the issue is much, much more complicated than an absolute that says if a case presents this question, i'm always going to take it. that's not how a judge looks at the issue of granting or not granting certiary -- >> i've only got a minute and a half left and statements i want to make in conclusion. i would ask you to rethink that. and i would also you to rethink the issues you didn't want to

answer yesterday about conflict between the congress and the court. even though the constitution made congress article 1 and the president article 2 of the supreme court has really reversed the order. the judiciary is article 1 if the powers were to be redefined. you have said repeatedly that the job of the court is to apply the law, not to make the law. and take a look again at the standard of proportional and con grew ent and see if you don't agree with justice scalia that that's another way for the court to make law. and take a look at what justice roberts said here in the confirmation hearings that there would be deference inry inspect for congressional fact finding and how that is not in the

garrett case and in the voting rights case. and out of consideration for the people who are going to appear here later, i'm not prepared yet to announce my own vote. but it is my hope that and the conventional wisdom is strong for your confirmation, that you'll use some of those characteristics of your litigation experience to battle out the ideas that you believe in because i have a strong hunch that they are closer to the ones that i would like to see adopted by the court. and don't let the issues of separation of power skip by. the congress is entitled to deference on these issues and at least they ought to be decided by the court. thank you very much, judge sotomayor, you've done quite an

outstanding job as a witness. thank you, mr. chairman. >> thank you, senator specter, judge, we're going to take a short break and thank you for all of this. when we come back, we'll go to recognized senator coburn who is next. thank you. leahy.

>> we tried to make it as possible for tv and print and photographers and, your honor, you've been very gracious in  that regard. now i think we'll come in close to the end of this round, whether it will be the last round or not will be up to the republican side. but i would yield now to senator coburn who has been waiting patiently. thank you. >> good morning, again.

>> good morning. >> yesterday you -- when i was asking you about foreign law, you said i should read your speech. so i did. i read your speech. i want to come back to that for a minute. i want to ask the same question i asked the only other two supreme court nominees that have come before me on this committee. my first statements was asking about whether you disagreed with alito and thomas and you said basically you agreed. so on the basis of that agreement, will ayou affirm to this committee and the american public, outside where you are directed to do so through statute or treaty refrain from using foreign law in making the decisions you make that affect this country and the opinions that you write? >> i will not use foreign law to interpret the constitution or

american statutes. i will use american law, constitutional law to interpret those laws, except in the situation where where american law directs the court. >> thank you. i want to ask you also. another question that i ask folks, justice alito and justice thomas and it's a problem i have with my colleagues here in the senate. you've written extensively about the ambiguity in law. would it be your opinion that we could do a much better job by being much clearer about what our intent is when we write statutes? feel free to offend us all because we sorely need it. >> speak for yourself. >> i'm speaking for the vast majority of american people. we do not do a thorough job.

220 times in the bill that came out of the committee, we gave full thrift to the secretary to write with none of our intent. if you sit on the supreme court i'm sure many of those will come before you without our intent but with a executive branch intent. i'm asking, in your experience, since you have noted the ambiguity in the law, would you make it a recommendation to the friends you've established, that we might do a better job of being much more clear than what we intend? >> it would be prumt youous of me to tell you how to do your job. i do know in my conversation, virtually with all 89 senators, perhaps not all of them, but the vast majority of them, somewhere

in the conversation there was reference to their feelings like yours, a better job could be done by congress in making its intent clear. i think that that's a question that senators think about, at least the ones i've spoken to. and i think that the process is always better for a court when congress's intent is more clearly stated. >> there's no doubt in your mind that if we were much more clear, guidance would be better given to the supreme court as conflicts over the statutes and laws come forward. >> when congress's intent is clear, the court applies that clear intent. >> thank you. >> i want to go back to a couple of other areas we've talked about. one is some answers to questions

that you gave to -- questions from senator hatch. senator hatch asked you to describe your understanding of the test or standard that supreme court uses to determine whether a right should be considered fundamental. specifically noted when determining whether a right is fundamental a supreme court determined whether the right is deeply rooted in our nation ace history and tradition, that it is necessary of ordered liberty or that it is an enduring american tradition. you refused to answer him asserting that you responded that you haven't examined that framework in a while to know if that language is precise or not. i'm not suggesting it's not, you said, senator. i can't affirm that description. similarly, the right to determine whether a right is a fundamental right. when senator kaufman asked you to give a detailed description

when to determine the doctrines of stare decisis you stated a long litany of which the items the court uses to determine stare decisis and gave a fairly detailed analysis of that process. and so i ask you again, why can't you give us your description of what you think the perimeters are that the court uses to determine a fundamental right? light of the 14th amendment? >> that language has been used in certain cases respecting the question of the incorporation of certain amendments. the question of and the general framework will be used with respect to any consideration of

incorporation. that wasn't, i thought the question that was being asked of me. i don't remember that being the specific question. all i'm saying to you is that the framework has been discussed by the court in juris prudence, developed over the last 100 years subsequent to the established precedence on the circuit, one of issues that the court will address if it decides to address the incorporation of the second amendment, is whether in those related areas it will use or not use that doctrines or framework of that precedent. there may be arguments on one side way and on another side why not. what i'm trying to do is not prejudge an issue -- that is still pending before the court. >> i'm asking what basis, what are the steps and the

considerations, not the details the case, but in other words, you can describe that for us but not in terms of a fundamental right for me that's concerning because we should understand -- that should be trans parent to the people in this country, how that works. >> because that's the very issue the court is going to look at. the question of stare decisis is a general framework one uses, not in the particular context of a case i'm going to choose always to look at the outcome of the case in this way. it's -- >> your honor, i understand that. >> if i can't get you to go there, i want to quit and go on to something else. i also asked you yesterday, i want you to understand, you were raised in the bronx. i was born in wyoming and raised in oklahoma. they are really different,

geographical geographically, different areas, i want you understand why i spend so many time talking to you about the second amendment. my constituents in oklahoma understand that, most do americans, the right to own guns hangs in the balance. may very well hang in the balance with your asendancecy to the supreme court. for us, one wrong vote on what we consider, regardless of what you consider, but what we consider a fundamental right can gut the holding of teller. and i have concerns and i want to ask a few more questions. yesterday you said that clearly a constitutional right only works if you can enforce it. and i agree. tell me how american citizens would be able to enforce their individual constitutional right to bear arms if you're holding that it does not apply to the

states in your previous case at the appellate level becomes the law of the land. >> the only statement i can start with is maloney was decided on the basis of precedence. it was decided on precedence the supreme court in heller recognized its precedent. it was based on second circuit precedent that had interpreted the constitutional -- the supreme court's prior precedent. it may well very, may not be, that just senator hatch was right that the old precedent should be distinguished in a certain way. others may be right that it shouldn't. that issue was not the one that the maloney court decided maloney on. it decided it on the rule of law. it was the rule of law that led judge easterbrook in the seventh

circuit decision to say not what we should be doing but what the supreme court should do is to reexamine a precedent that's directly on point. i can assure your constituents that i have a completely open mind on this question. i do not close my mind to the fact and the understanding that there were developments after the supreme court's rulings on incorporation that will apply to this question or be considered. i have a completely open mind. >> do you not consider it ironic that the majority of the debate about the 14th amendment and this country was about the taking of guns from freed slaves? is that not ironic that we now have some kind of conflict that we're going to say that the

whole reason in the debate about the 14th amendment originated from states taking away the rights of people's fundamental right to defend themselves? is that not an irony to you? >> senator, would you want to judge a nominee who came in here and said, i agree with you, this is unconstitutional before i had a case before me, before i had both sides discussing the issue with me. before i spent the time that the supreme court spent on the heller decision, that decision was mighty long, went through two years of history, did a thorough analysis of discussion. i don't know that that's a justice that i can be. >> well -- >> i can only come to this -- >> i agree with you, yourp your

honor. i ask isn't it ironic in this country where our law comes from english law which our founding was perpetrated and carried out under this fundamental right and we have a 14th amendment right and that we have through legal -- what i would consider as a position schizophrenia have decide that's we can't decide whether this is a legal right. i'llç finish with this point other than to note the reference was to prifl ens and immunity, not due process. >> i understand the importance of the right. it was recognized in heller and all i can continue to say, seniority, is i keep an open mind on the incorporation documents. >> i appreciate that, your honor, thank you very much. >> let me go back to an area

that i know is -- not everybody want t wants to hear about but i think it's important. i asked you about where we were are in terms of settle law on roe and doe. and today i only want to focus on roe and doe, not casey. what was the state of the law, say in 1974, one year after roe? where did we stand in that issue? >> that women have the right to terminate their pregnancy in some situations. without government regulation and others there would be permissible government regulation. >> let me -- did any of the law -- >> that's generally because the court did look at other questions in terms of government regulation. >> then let me ask you this --

did any of the law of the 50 states regulates abortion survive the decision in roe? >> i don't know that i could answer that question because i don't -- >> that's fair. they didn't. was there any limit to the right to abortion either in the age of the child in the womb or the reasons for electing that surgery and if so, what are those limits according to roe and doe? >> i -- senator, i don't actually remember the court addressing that because my studies have been on the undue burden test established in casey. so my experience in this area or my knowledge really has been most particularly concentrated on the casey standard, which is -- >> i understand. >> what casey did was change the ro standard. >> which goes back away i ask

you those two hypothetical, not about subtract, hypothetical case yesterday at a 28 week and a 38 week infant. the truth is since january 22, 197 3, you can have an abortion for any reason you want in this country. and even though carhart 2 has now been ruled. >> that's a procedure that will eliminate that pregnancy, it's still legal and viable everywhere in this country. so what i was trying to draw out to you is where do we stand in this country when 80% of the rest of the world allows abortion only before 12 weeks, only before 12 weeks, and yet, we allow it for any reason at any time for any inconvenience under the health of the woman aspect. and that's the other reason why i raise the viability, because technology and the state's interest under the supreme court

ruling starts with viability. that's when a state can have interest. it's guaranteed and there's limited ability states can have to control that after that. is the casey ruling the undue burden ruling test, is that a policy choice? i know it's the supreme law of the land today, but in your mind would that represent a policy choice? >> i understood that that was the court's framework for addressing both the woman's right to terminate her pregnancy under the constitution and the state's rights to legislate and regulate in areas within its jurisdiction. so it was the court's way of attempting to address those two

interests. >> and justice ginsberg is not really happy with those tests and neither was -- neither are several other members on the court. i want to end up our conversation when we had a private conversation, i approached you about the importance of the cases that you decide to take if you're on the court. let me ask you a few questions and i just want your opinion and i'm not trying -- this is not to put you in any box, if you think it is, please say so, you're trying to put me in a box. do you believe that the court's abortion rulings have ended the national controversy over this issue? >> no. >> okay. you don't have to name them but do you think there are other similar areally divisive issues

that could be decided by the court in the future? >> that i can't answer. i -- >> i don't want you to name any, i'm just saying odds think through your mind, do you think there are other similarly divisive issues that we could have that would divide the country so remarkably? assisted suicide, euthanasia. >> i can only answer what exists. people are very passionate about the issues they believe in. and so almost any issue could find an audience or a part of our population that's fervent about it. >> which is a great answer. because on divisive issues, is it better that a court decides them or elected representatives? if you had a preference, if you were king tomorrow and you said

we're going to decide this either in the supreme court or force congress to make the decision, which do you think would be better for us? >> in the first instance, it's always congress or a state passing regulation that the court is reviewing and determining whether it complies with constitutional limits. so it's not a choice of either/or. it's always congress' first instance it or the state legislators first interest with the nonvote toe of -- >> i've got 30 seconds left. i want to ask you another question. >> one of the -- you said just a minute ago, people are passionate about what they believe in. and i've read your speeches and your publications and i believe you're passionate. and i believe your speeches reflect your passions. i look at myself, when i give a speech. i let it all go. what i really believe. i'm more measured.

some people wouldn't believe that up here. but i am more measured when i'm here, but when i give a speech. and the problem i'm having is i really see a disnansonance abou what you said outside of your jurisprudence and the only ability we have to judge is what that passions that relayed in the past and your statements here in combination with your judicial practice. and so, you are an admirable judge, an admirable woman. you have very high esteem in my eyes for both your accomplishments and your intellect. i have yet to decide where i'm going on this because i am still deeply troubled because of the answers that i couldn't get in the 50 minutes that i've been able to ask. and also deeply troubled because

i believe what you've spoken to the law student, what you've spoken in your writings truly reflect your real passions, which i sometimes find run in conflict with what i think the # senator coburn, i had reserved about ten minutes of my time just use a minute or so of it. you spoke about the second amendment, which is a significant issue and it is one people care about. you spoke about gun owners out

west in your life in both wyoming and then oklahoma. i look at that, of course, because both wyoming and oklahoma have more restrictive gun laws than my own state of vermont. virtually every state has more restrictive gun laws than we do in vermont. i've been a gun owner since my early teens. i target shoot at my home in vermont as a way of relaxation all the time. i own numerous weapon, handguns and long guns. i have not heard anything or read anything in the judge's writings or speeches that would indicate to you to me in any way that i have to worry that vermont gun owners and many vermonters are gun owners as a

way of life, that that's going to change. it's not going to change for me. it's not going to change for weapons my two sons, one a former marine, own, and i will still be, if judge sotomayor is on the supreme court, i expect i'll still be back -- you're welcome any time you like to come and go target shooting with me there. >> mr. chairman, i would just say briefly, but is it a real pivotal time we are in because if the decision by judge sotomayor becomes law, any city, maybe not vermont, but any city or state in america could virtually, i believe, fully ban all firearms. and that's just the way we are. and we can discuss how much precedent had bound to you reach that conclusion, but this is not a little bitty issue. it's very important. >> but states made laws that

have gone along, vermont has decided not to have the restrictive laws that you have in alabama. and but states have made up their mind. senator franken. >> thank you, mr. chairman. i have a letter here from several former u.s. attorneys from the southern district of new york, some of them republican appointed and supporting the judge's confirmation. and i'll read a little bit from it. she says that each had personal experience including appearing before judge sotomayor. she came to it our cases without any apparent bias, act the with insightful and tough questions and demonstrated time and again that she not only listens but is often persuaded by counsel. in our matters, judge so

sotomayor's opinions reflect clear discipline, thinking. you know, it's great. it's a great letter. and i would ask that it be entered into the record. sir, can i enter it into the record? okay. thank you. thank you, judge sotomayor, for your patience. and your terrific answers. we've heard a lot about your thoughts on specific cases and on principles of jurisprudence. i would like to ask a much more general question and one that i think is really good question in job interviews. and that is why do you want to be a supreme court justice? >> you're going to hate me for taking a few minute, but can i tell you a story? >> i would love it. >> because it would explain who i am and why. when senator moynihan first told me that he would consider

sending my name to senator d'amato for krgts as a district court judge. he asked me it to keep it quiet for a little bit of a time. i asked permission to tell my mom. and omar. he said, sure. so they were visiting and i told them. and mom was very, very excited. and she then said how much more money are you going to earn? and i stopped and i said, i'm going to take a big pay cut. then she stopped and she stopped and she said are you going to do as much foreign travel as you do now? because i was flying all over the u.s. and abroad as part of my private practice work. and i said, probably not because i'm going to live in a courthouse in lower manhattan near where i used to work as a manhattan d.a. now the pause was a little

longer. and she said, okay. then she said now, all the fascinating clients that you work with, that you may have heard yesterday, i had some fairly well-known clients, you're going to be able to go traveling with them and with the new people you meet, right? and i said no, most of them are going to come before me as litigants to the cases i'm hearing and i can't become friends with them. now the pause was really long. and she finally looked up and she said why do you want this job? and omar, who was sitting next to her said, salina, you know your daughter. this is in spanish. you know your daughter. and her stuff with public service. that really has always been the answer.

given who i am, my love of the law, my sense of importance about the rule of law, how central it is to the functioning of our society, how it sets us apart as many senators have noted from the rest of the world are, have always created a passion in me. and that passion led me to want to be a lawyer first and now to be a judge. because i can't think of any greater service that i can give to the country than to be permitted the privilege of being a justice of the supreme court. >> thank you. well, i for one, have been very impressed with you, judge. and i certainly intend to support your confirmation. for the court. i guess there is another round.

i thought i was going to be the only thing between you and the door. so i planned to just yield my-all the rest of my time. but since i'm not, i'd like to ask you some -- no, i'm going to yield the rest of my time. if that's okay. >> thank you very much. senator franken. i will reserve my time. we'll have -- senator sessions has asked us for ten-minute rounds. i think primarily on the republican side. i may speak again when they finish, but we'll begin with you, senator sessions. >> thank you, chairman leahy. i think we tried to meet our goal. i had a goal that people would have say this is one of the most fair and effective hearings we've ever had. i hope that's been the case.

it's a great issue, the choice of putting someone on the united states supreme court. and our nominee has a wonderful group of friends and a long and distinguished record, but a number of questions arose that are important. american people rightly are concerned that on important social issues that are not clearly stated in the constitution, on important legal issues, not clearly stated in our law, seem to be decided by unelected lifetime appointed courts. those are big, big issues that we've discussed here today. i hope in a way that is healthy and positive. judge, one thing i will ask you, i asked justice roberts, i'm not sure how much good it did because he came back asking for a pay raise the next week, i think. but can you live on that salary that you're paid? we're in the largest deficit in the history of the republic, a

lot of people have to tighten their belts. are you prepared to do so also. >> i've been living on the salary for 17 years, so i will suffer through more of it. it is difficult for many judges. the pay question is a significant one for judges who haven't received pay raises. i think it's more than 20 yeas s now. >> well, you're saying pay raises based on -- they're getting pay raises almost every year, really. and the cost of living and that kind of thing, but there was a big pay raise about 20 years ago. i think that it's about four times the average family income in america. i hope that you can live on it. if not, you probably shouldn't take the job. all judges, whether they're activists or not, if asked, are

going to say they follow the law. they just have a different view of the law. they just have a little more looser interpretation of the law. so that's why we press some of these issues. we want to determine as best we can just how tightly you believe you're bound by the law and much flexibility you might think that you have as a judge to expand the law to suit, perhaps, a prediliction in one policy area or another. recently we were are told we lacked courage in discussing the race issue and i think that's something we should take seriously. that was a valid comment. in my opinion, we had a higher level of discussion of that issue since i've been in this committee and i hope we've done it in a way that is correct. because this is so sensitive and

it's so important and we need to get it right and we must be fair to everybody. we know that there are cases when people have been discrimina discriminated against. they are en titled to a remedy. and the supreme court has been quite clear, when you can show a history of discrimination, and we've had that not just in the south but in the south, the jurisprudence has developed it's that appropriate for a judge to have a remedy that would encourage a move forward to a better opportunity those who have been held back. so that's good. but supreme court is also said. that this is a dangerous philosophy. because when you do that, you have identified one racial group and you've given them a preference over another. so it can be done in a legitimate way that's remedial. and we still have vestiges of

discrimination in our society and there will be need for remedial remedies, but i do think as justice it roberts said, the best way to end discrimination is quit doing t and a lot of our orders and court decisions are such that they benefit one race over another solely because of their race and it has to be tied to a remedy. that's why the supreme court has made clear that when you do that it must meet the highest scrutiny, the courts are supposed to review that very carefully. and at language they use is strict scrutiny. you don't favor one group over another without meeting that high standard. so i'm glad we begin to discuss that and we have the firefighters and they'll be able to express their view on it in a little bit. and judge, let me just say before i go forward that you've done a good job, you've had a

good humor, you've been direct in your answers and we appreciate that. i will not support and i don't think any member of this side will support a filibuster or any attempt to block a vote on your nomination. it's a very important vote. we all need to take our time and think it through and cast it honestly as the occasion demands. but i'll look forward to you getting that vote before we recess in august. let me discuss -- judge, i'll just express this as we go forward. in your handling of the ricci ca case, i think it's fair to say that it was not handled in the regular order. you said in your opening statement that the process of judging is enhanced when the arguments and concerns of the parties to the litigation are

understood and acknowledged. that is why i generally structure my opinions by setting out what the law requires and then by explaining why a contrary position sympathetic or not is accepted or rejected. that is how i seek to strengthen both the rule of law and faith in the impartiality of our justice system. close quote. i think that's a good statement, but i think what the panel did in this case is d not meet that standard. i think it was action -- i would conclude fairly, i think, contrary to the rules of the second circuit, rule 32:1 says that summary orders are only appropriate where, quote, a decision unanimous and each judge of the panel leaves no

juris prudential purpose are settles around well settled principles of law. i would note it was not a procurium opinion at first, it was a summary order, which is even less of an impactful decision than the other. but i think the supreme court made clear and i think most americans understand that the firefighters case was more than that. it was -- it had tremendous jurisprudential impact and i think you were wrong to attempt to use the summary order which, because it was objected to within your circuit, which resulted in a pretty roaring debate and discussion, and that you went forward, that you then did it in a procurium way, which at least gave it a little higher

credence but you did not write an in-depth opinion at all. in fact, it was still a procurium and short opinion. i understand that according to some of the writers that judge sach "the new york times," i believe, quoted by stewart taylor, national 1y0ur7b8, that he was the most reluctant to join the opinion. judge pooler was in the middle and i guess it didn't reference the third judge, but apparently you were the third judge they were pushing for this kind of result. did you fail to show the courage that attorney general holder has asked to us show and discuss this issue openly with an in-depth opinion and wouldn't we have been better off if the case had had been handled in that

fashion? >> sir. no. i didn't show a lack of courage. the court's decision was clear in both instances on the basis for the decision. it was a thorough, complete discussion of the issues as presented to the district court, the circuit court's ruling was clear in both instance. no, i did not lack courage. >> well, i don't think it was a great district court opinion. but it was -- so i would disagree on that. but mr. chairman, you've been fair to us throughout. i don't know that every member of our side would use the time they are allotted but i am glad you are allowing them the opportunity to do so. >> well, thank you for that compliment, senator. and i should compliment senator specter here. he was chairman when i was rank and member when we had two supreme court nominations.

we tried to work out a time to be fair to everybody and we did. and we were told by both republicans an democrats that nobody had complained about the amount of time. i tried to do the same thing t is a lifetime appointment. i've been very impressed, of course, with our nominee. and it's been obvious incidentally, she was originally nominated by president george w. bush and then by president bill clinton who nominated president barack obama. she was nominated to a second term. i have a letter addressed to member of the committee or actually to you and i senator sessions from former president clinton and he speaks of her being able to make a yunique contribution through her

experience as a prosecutor, trial judge from the bench and hopes that we will have a speedy confirmation for an output that in the record. one of the things that also trying to make sure everybody gets balanced time, but we've had a lot of us who have served as either chairman oranging member of this committee and we know ohio important are that is. we use that to yield to senator hatch, who said also the problem of having to schedule how things go and, but thank you, jeff, i appreciate that. >> well, thank you, mr. chairman. i echo jeff's statement here. judge, you've been great throughout this process and i appreciate are it. i have some questions i'd like to ask that i think you can answer yes or no. of course you can qualify if you feel like it. but i would like to get through these because they're important questions to me and millions of other people that i represent.

judge, from 1980 to 1990, you were actively involved with the puerto rican defense legislation, a well known civil rights organization in our country. among other activities, this group files briefs in supreme court cases. you served in nearly a dozen different leader pigs there including serving on and chairing the litigation committee. "the new york times" has described you as a, quote, tough policymaker, unquote, with the group and said that you would meet frequently with the legal staff, review the status of cases and played an active role in the fund's litigation. lawyers at the fund describeds you as, quote, an ardent supporter of their various legal efforts with your time with the group. unkwoechlt the associate the press looked at your service with the fund that showed that you were involved in making sure that the fund's cases handled were in keeping with its mission statement and were having an impact.

and when senator gillibrand, she compared yours with ruth bader ginsberg or thurgood marshall's work naacp. let me just ask you about a few abortion cases in which the fund if filed briefs. i believe you can answer these yes or no, but again, certainly qualify if you feel like it. i'm not asking for your present views either personal or legal. let's get that straight, on these issues. nor am i asking how you might rule on these issues in the future. i just want to make that clear. i might say that -- like i say, these are important issues. in one case, harris versus mccray, the fund joined an amicus brief in which the fund

overturned restrictions on taxpayer funding for abortions. the brief compared using medicaid funds to pay for the abortion to the dred scott case that refused citizenship to black people in our society and treated them terribly. at the time, did you know that the fund was filing this brief? well let me just each one. at the time, did you know the fund was filing this brief? >> no, sir. >> okay. at the time did you know this brief made this argument? >> no, sir. >> at the time, did you support the fund filing this brief that made this argument? >> no. >> at the time, did you voice any concern, objection, disagreement or doubt about the fund filing this brief or making this argument? >> i was not like justice ginsberg or justice marshall, i was not a lawyer on the fund as they were with respect to the organizations they belonged to. i was a board member. and it was not my practice and not that i know of any board

member although maybe one with civil rights experience would ha ha have. i didn't have any in this airy so i never reviewed the briefs. >> all right. in another case, ohio versus akron center for reproductive health, the fund argued that the first amendment right to freely exercise religion undernine mines laws inquiring parental notification for minors getting abortion. at the time, did you know that the fund was filing this brief? >> no. no specific brief. obviously, it was involved in litigation, so i knew generally they were filing brief, but i wouldn't know until after the fact that a brief was actually filed. but i wouldn't review it. >> the same questions on this. at the time did you know that the brief made this argument, at the time did you support the fund filing this brief that made this argument? at the time did you voice any concern, okay, disagreement or doubt about the fund filing this brief or making this argument? >> no, because i never reviewed the brief. >> that's fine.

i'm just going to establish this. in another case, planned parenthood v. casy the argued against a 24-hour waiting period for obtaining an abortion. so again those questions. at the time did you know the fund was filing this brief? did you know the brief made this argument? did you support the fund filing this brief that made this argument? did you voice any concern, okay, disagreement or objection about the fund filing this brief or making this argument? >> for the same reason, no. >> okay. now, judge, i'm going to be very easy on you now because i invite a constituents in utah to submit questions and got an overwhelming response. many of them submitted questions about the second amendment and other issues that have already been discussed. but one constituent asked whether you see the courts, especially the supreme court as an institution for resolving perceived social injustices, inequities and disadvantages. now please address this both in terms of the justices intention

it and effect of their decisions. that was the question. i thought it was an interesting question. >> no, that's not the role of the courts. the role of the courts is to interpret the law as congress writes it. it may be the effect in a particular situation that the court in doing that and giving effect to congress' intent it has set out. but it's not the role of the judge to create that outcome. it's to interpret what congress is doing and do what congress wants. >> great. one final question, judge. you have described your judicial philosophy in terms of the phrase fidelity to the law. would you agree with me that both the majority and sis dissenting justices in last year's gun rights decision in the district of columbia versus heller were doing their best to be faithful to the history and text of the second amendment. >> text and history expressed it

and analyzed it, yes. >> nerpdz, do you believe they were exhibiting fidelity to the law as they understood it? >> yes. yes. >> okay. then i take it you would agree that the justices in the majority were not engaging in some kind of right wing judicial activism as some have characterized the decision. is that fair to say? >> it is fair for me to say that i don't view what a court does as activism. i view it as each judge principally interpreting the issue before them on the basis of the law. >> great. well let me just ask you one other constituent question. it's a short one. another constituent asked, which is more important or deserves more weight, the constitution as it was originally intended or newer legal precedent? >> what governs always is the

constitution. >> which is more important or deserves more weight? actual wording of the constitution as it was originally intended or newer legal precedent? that's a tough question. >> the intent of the founders were set forth in the constitution. they created the words, they created the document. it is their words that is the most important aspect of judging. you follow what they said in their words and you apply it to the facts you're looking at. >> well, thank you, judge. i'll get back back the remainder of my time, mr. chairman. >> thank you. thank you so much. i just would note we we do have this letter in the record from puerto rican legal defense education fund in which they say neither the board as a whole nor any individual member selects

litigation be undertaken or controls ongoing litigation. i just think that should be very, very clear here. probably why they get support from the united ya and a number of other organizations. senator grassley? >> good morning, justice -- judge sotomayor. yesterday, you said you would take a look at baker versus nelson. so i ask this question -- you said you hadn't read bakery long time and would report back. you added that if baker was president, you would uphold it based upon stare decisis consistent with your stance in cases like co-hole, roe v. wade, griswold and many others that you mentioned this week. it upheld that same-sex marriage did not violate the 4th, 8th,

9th or 13th amendment to the constitution. the supreme court in a very short ruling concluded that, quote, the appeal is dismissed for want of substantial federal question." baker remains on the books as president. will you respect the court's decision in baker based upon stare decisis and if not, why not? >> as i indicated yesterday, i didn't remember baker and if i have studied it, it would have been in law school. you raised the question and i did go back to look at baker. and in fact, i don't think i ever read it even in law school. baker was decided at a time where jurisdiction over federal questions was manndatory before the supreme court. and the disposition by the supreme court, i believe, was what you related, senator, which is a dismissal of the appeal raised on the minnesota

statutes. what i are have learned is the question of it's what the meaning of that dismissal is. is actually an issue that's being debated in existing litigation. as i indicated yesterday, i will follow precedents according to the doctrine of stare decisis. i can't prejudge what that precedent means until the issue comes before what a prior decision of the court means and its applicability to a particular issue is until that question is before me as a judge. or a justice if that should happen. so at bottom, because the question is pending before a number of courts, the aba would not permit me to comment on the merits of that but as i indicate ed i affirm that with each

holding of the court to the extent it is pertinent to the issues of the court, it has to be given the effects of stare decisis. >> am i supposed to interpret what you just said as anything different than what you said over the last three days in regard to kehoe or roe or griswold or any other precedents or would it be exactly in the same tone as you mentioned in previous days with previous precedents under stare decisis? >> well, those cases have holdings that are not open to dispute. the holdings are what they are. their application to a particular situation will differ on what facts those situations present. the same thing with the nelson

case, which is what is does a holding mean? and that's what i understand is being litigated because it was a one-line decision by the supreme court and how it applies to a new situation is what's also would come before a court. >> okay. my last question for your appearance before our committee involves a word i don't think that showed up here yesterday, vacuums and it's a question that i asked judge roberts. and justice alito. and it comes from a conversation i had dialogue i had at a similar hearing when judge souter was before us, now justice souter. involving the term vacuums in law. i think the term vacuums in law comes from souter himself as i'll read to you in just a

moment. i probed judge souter about how he would interpret the constitution and statutory law and his response justice souter talked about the court filling vacuums left by congress and there's several quotes that i can give you from 19 -- i guess it was 1990, but i'll just read four or five lines. of judge souter speaking to this committee. because if in fact the congress will face the responsibility that goes with the 14th amendment powers, then by definiti definition, there is to that extent not going to be a kind of vacuum of responsibility created in which the courts are going to be forced to take on problems which sometimes in the first instance might be better addressed by the political branches of government. both prior to that and after

that, judge souter talked a lot about maybe the courts needed to fill vacuums. do you agree with justice souter? is it appropriate for the courts to fill vacuums in the law? and let me quickly follow it up, do you expect that you will fill in vacuums in the law left by congress if you're confirmed to be an associate justice? >> senator grassley, one of the things i say to my students when i'm teaching brief writing, i start by saying to them, it's very dangerous to use analogies because they're always imperfect. i wouldn't ever use justice souter's words because they're his words, not mine. i try always to use and this is what i tell my students to do is use simple words.

explain what you're doing without analogy, just tell them what you're doing. and what i do is not described in the way or i wouldn't describe it in the way justice souter did. just judges apply the law. they apply the holdings of press departments and they look at how that fits into the new facts before them. but you're not creating law. if that was an intent that justice souter was expressing and i doubt it, that's not what judges do. judges do what i've just described and that's not in my mind acting for congress. it is interpreting congress' intent as skpresd in a statute and aapplying it to the new situation. >> thank you. i'm done, mr. chairman. >> thank you very much, senator grassley.

did you want another round? >> yes. i'm not sure how long this will take. but judge, i think maybe we're to use the president's analogy that we talked about in my very first question to you. we may be in about the 25 ath miflt marathon and i might be persuaded to have a little empathy for this last mile here, i think you're just about done. i wanted to go over three quick things if i could. the first is the exchange we had this morning regarding the decision in ricci in which you insisted you were bound by supreme court and second circuit precedent. i quoted from the supreme court decision to the effect that i believe that contradicted your answer. if you have anything different to say than what you say this morning, i wanted to give you another opportunity to say it. we don't need to replow the same ground but is there anything different you would like to offer on that? >> senator, after each round, i go to the next moment. without actually looking at a transcript, i couldn't answer that question.

it's just impossible to, right now. i'm glad you're giving me the opportunity, but i would need a specific question as to something i said and what i meant before i could respond. >> all right. since we will probably have a few questions as follow-up in writing and you'll be providing usens answer to those, maybe the best thing is just to ask a general question or if there's something specific i can relate it to and then you can respond in that way. >> thank you, sir. >> you're very welcome. the second question has to do with the section amendment. in the maloney case, you held that it was not incorporated into the 14th amendment and what -- well, maybe i should ask you what that means in two separate situation as a practical matter. if the supreme court does not review that issue, then is it the case that at least in the second circuit and the 7th

circuit, the states in the seventh and 2nd circuit, those states could pass laws that restrict or even prohibit people from owning firearms. >> i did not hold it was not incorporated. i was on a panel that -- >> fair enough. >> that viewed supreme court precedent and second circuit precedent as a hold iing that fact. >> right. >> you can't talk in an absolute. there always has to be a reason for why a state acts. and there also has to be a reason for the extent of the regulation the state passes. and so the question in maloney for us was a very narrow question, which is are these nunchaku sticks and i have described them previously as

martial arts sticks tied together to by a belt and that you swing them them when someone comes by that there could be deadly force in in sideways situationings, if the state has a reason recognized in law for determining it was illegal to own those sticks. the next issue that would come up by someone who challenged the regulation would be what's the nature of the regulation and how does it comport with the reason the state gives for the actions it did? so absolute regulation? not what i would answer. >> excuse me. i appreciate your answer. what would be the test that would be applied by a court in the event that a state said because of the danger that firearms present to others, we're going to require that only law enforcement personnel can

own firearms in our state? and someone challenged that as an affront to their rights. they would say the federal government can't take that right away from us because of the second amendment. what would be the test be that the court would apply to analyze the regulation of the state? >> well, that's very similar, although not exactly if i understood it to the facts in heller and the court there said that the regulation in bc was broader than the interest asserted. that question in a different state would depend on the circumstances of its barring -- >> excuse me for interrupting. is there no standard. we're familiar with district scruti scrutiny, the reasonable basis test, so sorngs there a standard in which you're aware that the court are would use to examine the state's right to impose such a restriction given that the

second amendment would be deemed not incorporated? >> in maloney, the court addressed whether there was a violation of the equal protection statute of equal protection of the 14th amendment and determineded that rational basis review. now that i understand your question. >> sure, i understand. of the tests that the court applies drishlly, the rational basis is the least difficult of state states to meet in justifying a regulation, is it not? >> i'm not going to be difficult with you, it's the one where you don't need an exact fit between the exact injury that you're seeking to remedy and the legislation. so it does have more -- >> flexibility. >> well, flexibility is the wrong term.

more deference to congressional findings about what -- >> or state law. >> exactly. >> you know the general rule that the rational basis test is the least intrusive on a tate's ability to regulate whereas strict scrutiny is the most intrusive on the state's ability. is that a fair characterization? >> it's a fair characterization that when you have strict scrutiny, the government's legislation must be very narrowly taylored. >> right. so when on the national basis there's a broader breadth for the states to act. >> so wouldn't it be correct for the states to say that as between the application between the second amendment for the district of columbia, for example, as compared to a situation in which a state or a city impose a regulation on the control of firearms, that it would be much more likely that the court would uphold the

state's ability or the city's ability to regulate than it would in the abstract, i'm talking about here, than it would a federal attempt to regulate it under the second amendment? >> that's a problem within the abstract because what the court would look at is whatever legislatuledg legislative findings there are in the fifth -- fit between those findings and the legislation. >> right. >> and i appreciate that you're not going to -- without knowing the facts of every case, you can't opine, but just as a general proposition, obviously if the amendment is incorporated trvgs will be much more difficult for a government to impose a standard than it. it is not incorporated. >> well, the standard of review, even under the incorporation doctrine was actually not decided in heller. and that issue wasn't resolved so what that answer will be is actually an open question that i couldn't even discuss in a broad

term, other than to just explain that -- >> all right, let me ask you again to interrupt because we're less than two minutes now. if senator leahy says gee, in vermont, he's not worried about the fact that the second amendment isn't incorporated, maybe if i lived in new york be or massachusetts or some other state i would be worried. the question, i would ask here is can you understand why someone who would like to own a gun would be@@@@$rra&d&@ @ @ @

substantially on foreign law. in kennedy versus louisiana, an adult was convicted of raping an 8-year-old child and the same five justices who wrote the opinion in roper wrote that it was cruel and unusual to sentence the individual to death but cited no foreign law whatsoever. some of us said that a discussion of foreign law was left out of the kennedy case because it cut against the majority's opinion. what do you think? >> i can't speak tour what they did. i can only do what you did which is to describe what the courts did in what they said. it's impossible for me to speak about why a particular court

acted in a particular way or why a particular justice analyzed an issue outside of what the opinion said. >> i'll just tell you, my revenue is that it kind tells me if the court can find some foreign law that supports its opinion it uses it, if it's on the other side, it doesn't use t in my view, it's one of the opinions that is problem in using foreign law. and from what i understand, you believe it should not be used except in treaty and other foreign tase cases. >> i believe foreign law should not be used to determine the results under constitutional law or american law except where american law directs. >> thank you very much. thank you, judge. >> thank you senator graham? >> thank you, judge. i guess we do get to talk again. when you look at the fundamental right aspect of the second

amendment, you'll be looking at precedent, you'll be looking at our history. you'll be looking at a lot of things you hopefully godchild is an nra member, you can assimilate your view of what south america all about when it comes to second amendment, but one thing i want you to know is russ fine gold and lindsey graham have reached the same conclusion and that speaks strong of the second amendment because we don't reach the same conclusion a lot. so i want to you realize this fundamental right issue of the second amendment is very important to a lot of people throughout the country whether you own a gun or not and one of the things you'll look at and find america like other countries has unique relationship to the second amendment. today, khalid sheikh mohammed is appearings at a tribunal in guantanamo bay, cuba. he will be appearing before a military judge and representing

by military lawyers and a military prosecutor. the one thing i want to say here i've been a judge advocate, a member of the legal community for well over 25 years and to america and world who may be watching this, i have nothing but great admiration and respect for those men and women who serve in our judge advocate corps who will be given the obligation by our nation to render justice against people like khalid shake sheikh mohammed. to those who wonder why we do this. why do we give him a trial? why are we so concerned about him having this day in court? why do we give him a lawyer when we know what he would do to our people in his hands? i would just like to say that it makes us better than him. it makes us stronger for us to give the mastermind of 9/11 his

day in court represented by counsel and any verdict that comes his way won't be based on prejudice or passion or religious bigotry, it will be based on facts. now, let's talk about what this nation is facing. this congress, judge, is trying to reauthorize the military commission act. trying to find a way to bring justice to the enemies of this country in a way that will make us better in the eyes of the world and also make us safer here at home. have you had an opportunity to look at the boomadeen-hamdin decisions in the cases? >> i have. >> you will be called upon to pass judgment over the enactments of congress. when it comes to sfcivilian criminal law, do you know of any concept in criminal law that

would allow someone be held in criminal law indefinitely without trial? >> when you're talking about civilian criminal law, you're talking about -- >> domestic criminal law. >> domestic criminal prosecutions. >> right. >> after conviction, defendants are often sent -- >> i'm talking about you're held in jail without a trial. >> a speedy trial act. there are constitutional principles that require a speedy trial, so the answer to your -- no. there is no -- >> had a is a correct statement of law, judge, in my opinion. you cannot hold someone in domestic indefinitely without trial. under military law, the law of armed conflict, is there any requirement to try in a court of law every enemy prisoner? >> there you have an advantage

on me because i -- i'm sorry. >> fair enough. >> the point i'm trying to make and if i'm wrong you'll have time to do this, as i understand military law, if we as a nation, one of our airmen is downed in a foreign land held by an adversary, it's my understanding we can't demand that that airman or american soldier go to a civilian court. that's not the law. if we have a pilot in the hands of enemy, there is no requirement of the detaining force to take that airman before a civilian judge. i think that's the law. there is no requirement under military or the law armed conflict to have civilian judges review the status of our prisoners. that's a right that we do not possess. the question for the country and

the world, if people operate outside of the law of armed conflict that don't wear uniforms, are they going to get a better deal than people that play by the rules? and as we discuss these matters, i hope you take into account that there is no requirement to try everyone held as an enemy prisoner. and do you believe that there's a requirement in the law that at a certain point in time that a prisoner has to be released, an enemy prisoner just through the passage of time. ? >> i can only answer that question nar rowly. and narrowly because the courts holdings have been narrow in this area. first, military commissions and proceedings under them have been a part of the country's history. >> right. >> so there's no question that

they are appropriate in certain circumstances. >> and judge, they'll have to render justice and meet the standard of who you are. my point to critics on the right that objected to my view that we ought to provide more capacity. wherever the flag flies and in every courtroom there's something attached to the flag. we're going to work hard to create a military commission consistent with the values of this country. i want to let you know that under traditional military law, it is not required to let someone go who is properly detained as part of the enemy force because the passage of time. judge, it would be crazy for us to capture someone, give them adequate due process, independent judicial review, and the judges agree with the military, you're part of al qaeda and represent a danger and

say at a magic point in time, good luck, you can go now. the people that we are fighting. if some of them are let go, they'll try to kill us all. it doesn't make us a better nation to put a burden upon ourselves that no one else has ever accepted. so what my goal working with my colleagues is to have a rational system of justice that will make sure that every detain ee has a chance to make the argument i'm being improperly held, have a day in court. have a review by an independent judiciary but we do not take it so far as that we can't keep anan al qaeda member in jail. i want the world to understand that america is not a bad place because we will hold al qaeda members under a process that is

fair, transparent until they die. my message to those that want to join the organization or thinking about joining it, you can get killed if you join and may wind up dying in jail. as this country and this congress comes to grips with how to deal with an enemy that doesn't wear a uniform, that doesn't follow any rules, that would kill everybody they could get their hands on in the name of religion, that not only we focus, senator whitehouse on upholding our values, that we focus on the threat that this country faces in an unprecedented manner. so judge, my last words to you will be, if you get on this court, and you look at the military commission act that the congress is about to pass, when you look at whether or not habeas should be applied to a

war time battle field prison, please remember, judge, that we're not talking about domestic criminals who rob the liquor store. we're talking about people who have signed up for a cause that is every bit as dangerous as any enemy this country has faced and this congress and the voice of the american people who stand for re-election has a very difficult assignment on its hands. their lanes for the executive branch, judicial branch and the congressional branch, even in a time of war, please judge, understand that 535 members of congress cannot be the commander of chief and unelected judges can't run the war. thank you. and got speed.

>> thank you, senator. >> senator cornyn. >> you're almost through, judge. i want to ask three relatively quick items that i was not able to get to earlier. you wrote that neutrality and object tist in the law are a myth. you said you there is no objective stance, no neutrality or escape from choice in judging. would you explain what that means? >> in every single case and senator graham gave the example in his opening statement, there are two parties arguing

different perspectives on what the law means. that's what litigation is about. and what the judge has to do is choose the perspective that is going to apply to that outcome. so there's a choice. you're going to rule in someone's favor, rule against someone's favor. that's the perspective with the lack of neutrality, that you can't just throw up your hands and say i'm not going to rule. judges have to choose the answer to the question presented to them. and so that's what that part of my talking was about, that there's choice in judging. you have to rule. >> you characterized in your opening statement that your judicial philosophy, would you

agree that the authority and justices in last year's begun rights case, were each doing their best to be faithful to the text and the history of the second amendment? in other words do you believe they were exhibiting fidelity to the law? >>@@@@@@@ @ @ @ @ @ @ @ @ @ @ @

judicial activism? >> i don't describe people's actions with those labels. >> i appreciate that. you testified earlier today that you would not use foreign law in interpreting the constitution statutes. i would like to contrast that statement with earlier statement that you made back in april. and i quote, international law and foreign law will be very

important in the discussion of how to think about unsettled issues in our legal system. it is my hope that judges everywhere will continue to do this. close quote. let me repeat the words that you used three months ago. you said very important and you said judges everywhere. this suggests to me that you consider the use of foreign law to be broader than you indicated in your testimony earlier today. do you stand by the testimony you gave earlier today? do you stand by the speech you gave three months ago, or can you reconcile those for us? >> stand by both. because the speech made very clear in any number of places where i said you can't use it to interpret the constitution or american law, that went through not a lengthy because it was a shorter speech, but i described the situations in which american law looks to foreign law by its terms, meaning its counselled by

american law. my part of the speech said people misunderstand what the word use mean. if you cite a foreign decision, that means it's controlling an outcome or you're using it to control an outcome. and i said, no, you think about foreign law as a -- i believe my words said this, you think about a foreign law the way judges think about all sources of information. ideas. and you think about them as ideas both from law review articles and from state court decisions and from all of the sources, including wikipedia, that people think about ideas. they don't control the outcome of the case. the law compels that outcome. and you have to follow the law.

but judges think. we engage in academic discussions. we talk about ideas. sometimes you'll see judges who choose. i haven't, not my style. but there are judges who will drop a footnote and talk about an idea. i'm not thinking that they are using that idea to compel a result. it's an engagement of thought. but the outcome as in, you know, you could always find an exception, i assume if i looked hea hard enough. in my review judges are applying american law. >> why would the judge cite foreign law unless it somehow had an impact on their decision on their decision-making process? >> i don't know why other judges do it. as i explained, i haven't. but i look at the structure at

what the judge has done and explained and go by what that judge tells me. there are situations -- that's as far as i can go. >> you said on another occasion that you find foreign law useful because it quotes, gets the creative juices flowing, close quote. what does that mean? >> to me i am a part academic, please don't forget i taught at two law schools. i do speak more than i should. and i think about ideas all the time. and so for me it's fun to think about ideas. you sit at the lunch room among judges and you'll often hear them say, did you see what that law school professor said, or did you see what some other

judge wrote and what do you think about it and -- but it's just talking. it's sharing ideas. what you're doing in each case and that's what my speech says, you can't use foreign law to determine the american constitution. it can't be used neither as a holding or precedent. >> do you agree with me that if the american people want to change the constitution, that is a right reserved to them under the constitution to amend it and change it, rather than to have judges under the guise interpreting the constitution by -- >> there is an amendment set forlz that controls how you change the constitution. >> if academics or legislators or anybody else who's got creative juices flowing from

invocation of foreign law, it is foreign the american people to do it through the amendment process than for judges to do it relying on foreign law. >> we have no disagreement. >> thank you very much, your honor. >> thank you. >> mr. chairman, i'll go into an area that we have not covered -- no one has covered yet. and i'm reminded of senator sessions talking to you about pay. you know, i would predict to you in about 15 or 18 years -- >> i'm sorry. >> pay. >> and in 10 or 15 years judicial pay, we may not be able to pay your salary. if you look -- nine years from now we'll have a trillion dollars worth of interest on the national debt. it's not very funny.

what it does is it undermines of freedom and security of our children and our grandchildren. and i want to go to madison. madison is the father of our constitution and i want to get your take on three issues. one the commerce clause, two the general welfare clause and number three the tenth amendment. and i don't know if you've read the federal papers i find them interesting to see what the founders met and said during the constitution and madison expressed the importance of a restrained government by stating in framing a government to be administered by men over men the great difficulty lies in this. you must first enenable the government -- and oblige to control itself. do you believe that our federal courts enable the federal government to exceed its intended boundaries by

interpreting article one's commerce clause to dell gate virtual unlimited authority to the government? >> the supreme court in at least two rulings or one has said there are limits to all powers set forth in the constitution and the question for the court in any particular situation is to determine whether whatever branch of government or state is acting within the limits of the constitution. >> so you would say -- let me read you another madison quote, again the father of our constitution. if congress can employ money indefinitely to the general welfare and are sole and supreme court judges of general welfare, they may take the religion in their own hands and appoint teachers and pay them out of the public treasury, may take into

their hands anywhere own hands the education of our children, establishing in like manners schools throughout the union. may assume the provision for the poor, undertake the regulations of all roads, in short everything from the highest object of state legislation down to the most minute object of police would be thrown under the power of congress. were the power of congress to be established in the latitude contended for, it would subvert the nature of the limit of the government established by this constitution and the american people. i guess my question to you is, do you have any concerns as we now have a $3.6 trillion dollar. $90 trillion worth of unfunded obligations that are going to be placed on the back of our children, that maybe some reigning in of congress in terms of general welfare clause, the

commerce clause and reinforcement of the tenth amendment under its intended purposes by our founders which said that everything that was not specifically listed in the ee unanimous rated powers was left to the states and the people, do you have any concerns about where we're heading this nation and the obligations of the supreme court maybe to relook at what madison and the founders intended as they wrote the clauses into our constitution? >> one of the beauties of our constitution is the very question that you asked me, is the dialogue left in the first instance to this body and the house of representatives. the answer to that question is not mine in the abstract. the answer to that question is a discussion that this legislative body will come to an answer about as reflected in laws it

will pass. and once it passes those laws, there may be individuals who have rights to challenge those laws and will come to us and ask us to examine what the constitution says about what congress did. but it is the great beauty of this nation that we do leave those law making to our elected branches and that we expect our courts to understand its limited role but important role in ensuring that the constitution is upheld in every situation. >> so -- >> that's presented to it. >> i believe our founders thought that the supreme court would be the check and balance on the commerce clause, the general welfare clause and insurance of the tenth amendment. that's the reason i raised the issues with you. i wonder if you think we honored

the plain language of the constitution and the intent of the founders with regard to the limited power granted to the federal government. >> that's almost a judgment call. i don't know how to answer your question because it would seem like it would lead to the natural question, did the courts do this in this case? and that would be opining on a particular view of a case and that case would have a holding and i would have to look at that holding in the context of another case. i'm attempting to answer your question, senator. but our roles and the ones we choose to serve, your job is wonderful. it is so, so important. but i love that you're doing your job and i love i'm doing my

job as a judge. i like mine better. >> i think i would like yours better as well. >> although i doubt i could ever get to the stage of a confirmation process. well, let me end up with this -- it would be entertaining, wouldn't it? >> i'll preside over it. >> well, that's not likely to happen. let me end with this. you know, people call me simple because i really believe this document is the genesis of our success as a country. and i believe these words are plainly written. and i believe we ignore them at

our peril. and my hope is that the supreme court will relook at the intent of our founders. and the tenth amend@@@ @ @ @ rr find ourselves near bankruptcy because of them. i thank you, mr. chairman. >> thank you. >> this is almost over. there was one question, i withheld balance of my time before. i want to make sure i ask this question because i asked it of chief justice roberts and justice alito when they were

before the committee. in death penalty cases it takes five justices to stay an execution but only four to grand certiary to hear the case. it would become a moot point, the person could be executed into between. if the four justices were willing to hear a case, agrees with the fifth vote as a matter of koucourtcy to the person is executed in the few weeks that might be between granting of cert and the hearing of the case. both justice roberts and alito agreed this rule was sensible. it appears according to a study

done by the "new york times," the rule that both chief justice roberts and alito said was reasonable and i think the majority of us on the committee thought was reasonable. they said that suggested that rule has not been adhered to the rule of four because there have been a number of cases where four justices voted to for cert and wanted to stay the execution and the fifth would not and the person was executed before the case was heard. if you were on the supreme court, basically the same thing i asked justice robert and justice alito, if you were on the supreme court, four of your fellow justices said they would like to consider a death penalty case and they asked you to be a fifth vote to stay the

execution. even though you didn't necessarily plan to vote for cert, how would you approach that issue? >> i answer the way those two justices did, which is, i would consider the rule of the fifth vote in the way it has been practiced by the court. it has a sensible basis, which is, that if you don't grant the stay an execution can happen before you reach the question of whether to grant certiary or not. >> thank you, i applaud both chief justice roberts and alito for their answers. it appears that perhaps somewhere between the hearing room and the supreme court their minds changed. now, now in 2007 christopher

scott everett was executed even though four voted for stay of execution. justice stevens wrote a statement joined by ginsburg for review of the denial. first application for a federal writ of habeas corpus. i'm not asking for a commitment, but justices stevens and ginsburg said, but that something that ought to be considered? >> unquestionably. there was an under lying reason for that practice. >> and there's an understanding that when the case is reviewed it may very well end up the sentence below it may well be upheld. and the execution would go forward. but this is on the various steps for that hearing.

>> yes,sir. >> thank you. senator sessions? >> briefly. thank you, again, for your testimony and i know judges come before these committees to make promises and they mean those things. and then they are lucky, get a lifetime appointment. i think most likely the judicial philosophy will take over as the years go by, the 10, 20, 30 years on the bench. this is an important decision for us to reach and to consider. and we'll all do our best. i hope you felt it's been a fairly conducted hearing. that's been my goal. >> thank you, senators to all senators. i have received all the graciousness and fair hearing that i could have asked for. and i thank you, senator for your participation in this process and in ensuring that.

>> you're very courteous. for the record, a number of significant articles should be in the record, one the "washington post" on july 9th, uncommon detail. "wall street journal" defining activism down. july 15th. "new york times," new scrutiny of judge's most controversial case. qu"new york times," nominee's rulings are exhaustive but narrow. how ricci almost disappeared. the ninth justices reject sotomayor position 9-0. the wise latina article, which is an important analysis. for the record, i would also offer a letter from senator froman of the national rifle association and series of other people who co-signed that letter

making this point. i think it's important, senator froman, a lawyer, surprisely, heller was a 5-4 position that the second amendment does not apply to private citizens or if it does, even a total gun ban could be upheld if a legitimate public interest could be found. they also found d.c.'s absolute band on hand guns within the home to be a reasonable restriction. and if this had been the majority view, then any gun ban could be upheld and the second amendment could be meaningless. goes on to say the second amendment survived today by single vote in the supreme court, both its application to the states and whether there will be a meaningful strict standard of review remain to be decided. justice sotomayor has revealed her views on these issues and we believe they are contrary to the

intent and purposes of the second amendment and the bill of rights as a second amendment leaders we're deeply concerned about preserving all fundamental rights for current and future generations and strongly oppose this nominee. offer that and letter from the americans united for life. the 60-plus association. >> we'll hold the record open until 5:00 tonight for any other materials people wish to submit to the record. >> thank you, mr. chairman and thank you for your courtesy throughout. >> now, judge sotomayor, this hearing is extended over four days and the first day you listened to our opening statements, rather extensively. you shared with us a very concise statement about your own fidelity to the law. i expect it will be in law

school texts in years to come. over the last three days, you've answered our questions from senators on both sides of the aisle. and i hope i speak for all of senators, both republican and democratic on this committee when i thank you for answering with such intelligence, grace and patience. i also thank the members of your family for sitting here also with such intelligence and grace and especially patience. during the course of this week, almost 2,000 people have attended this hearing in person, 2,000. millions more have seen it, heard it or read about it thanks to newspapers and blogs and television and cable and web casting. and i think through the proceedings the american people have gotten to know you. even though i sat on two different confirmation hearings for you over the past 17 years,

i feel i've gotten to know you even better. the president told the american people in his internet address back in may that the justice of the supreme court, you would not only bring experience required over the course of a brilliant legal career but the wisdom accumulated over the course of an extraordinary journey. a journey defined by hard work, fierce intelligence and enduring faith in america, all things are possible. we witnessed that this week. experience of wisdom to benefit all americans. when you walk under that piece of vermont or the supreme court speaking of equal justice under law, i know that will guide you. judge sotomayor, thank you. god speed. >> thank you all. >> we stand .

the committee is back in. you can see that online. we'll take you back live to the senate judiciary committee. >> put in the record and senators will each have five minutes to ask questions of each panel. along with ranking members sessions, i am very glad to welcome tim askew and mary boyce. tim is mary is the aba lead evaluator on its investigation into the judge sotomayor's qualifications to be an associate justice on the supreme court of the united states. ranking member and i both look forward to their testimony. if i ask them to please stand and be sworn, we will begin. >> do you affirm the testimony

you're about to give will be the truth, the whole truth, and nothing but the truth so help you god? please be seated. you may proceed with your statements. >> good afternoon and thank you for having us. chair of the standing committee on the federal judiciary, this is mary boys, our second representative and she was a lead evaluator on the investigation of judge sotomayor. we are honored to appear here today to explain the standing committee's evaluation of this nominee. the standing committee gave her its highest rating, and unanimously found that she was well qualified. for 60 years the standing committee conducted a thorough nonpartisan peer review in which we did not consider the ideology of the nominee and we have done that with every federal judicial

nominee. we evaluate the integrity, the professional competence and the temperament of the nominee. does not impose endorse nominees, our sole function is to evaluate the professional qualifications and rate the nominee, either well qualified, qualified or not qualified. a nominee to the supreme court of the united states must possess exceptional professional squall fi squall fiction and because of that, our investigations of supreme court nominees more expensive than the nominations to the lower federal court and procedurely different in two ways. first, all circuit members participate in the evaluation. an investigation is conducted in every circuit, not just the

circuit in which the nominee resides. second, in addition to the standing committee reading the writings of the nominee, we commission three reading groups of distinguished scholars and practitioners who also review the legal writings. georgetown university law center and syracuse university school of law formed reading groups this year and these groups were comprised of professors all recognized experts in their s substantive areas of law. that group was also comprised of nationally recognized lawyers with substantial trial and appellate practices, all of them are familiar with supreme court practices and many have clerked for justices on the supreme court. in connection with judge sotomayor's evaluation, we initially contacted some 2600

persons who are likely to have relevant knowledge of her professional qualifications. this included every united states federal judge, state judges, law professors and deans and members of the community. we received 850 responses to our contact and we personally interviewed or received detailed letters or e-mails from over 500 judges, lawyers and others in the community who knew judge sotomayor or who had appeared before her. we also analyzed transcripts, speeches, other materials and of course, mrs. boyce and i interviewed her and it is on that basis that we reached the unanimous conclusion that she was well qualified. her record is known to this distinguished committee. she has been successful as a prosecutor, a lawyer in private practice, judge, a legal

lecturer. served with distinction almost 17 years on the federal bench, both as a trial court judge and an appellate judge. he has taught in two of the nation's leading law schools. she has a reputation for integrity, and outstanding character. universally praised for strong analytical ability and exceptional work ethic and known for courtroom preparation. her judicial temperament meets the high standards. the committee fully addressed the concerns raised of her writings and those are set forth in detail in our correspondence to this committee and we ask that they may be made a part of the record. in determining that these concerns did not detract from the highest rating of well

qualified for the judge, the standing committee was persuaded by the overwhelming responses of lawyers and judges who praised her writings and overall temper. . on behalf of the standing committee, mrs. boyce and i thank you for the ability to be present and present these remarks and we're available for any questions you may have. >> thank you so much. do you have a separate statement? >> i do not. >> i appreciate it. i just want to summarize a few conclusions from the report. and then ask you a little bit about the scope of the effort that went into it in terms of the numbers of people who were interviewed and the duration and nonpartisan nature of the effort, if you would. now on page 6 you conclude that judge sotomayor has earned and enjoys an excellent reputation for integrity and outstanding character. lawyers and judges uniformly

praised the nominee's integrity. on page 11, you report that judge sotomayor's opinions show an adherence to set policy based on the judge's personal views, her opinions are narrow in scope, address only the issues presented, do not revisit settled areas of law and devoid of broad or sweeping pronouncements. on page 13 you report that the overwhelming weight of opinion shared by judges, lawyers, courtroom observers and former law clerks is that judge sotomayor's style on the bench is, a, consistent with the active questioning style well-known on the 2nd circuit and which in a personal aside i will say i liked as a practitioner. b, directed at the weak points of the parties of the case. c, designed to ferret out relative strengths and shortcomings of the arguments

presented and finally, the committee unanimously found an absence of any bias in the nominee's extensive work. lawyers and judges overwhelmingly agree -- this is your quote, she is an absolutely fair judge. none including those many lawyers who lost cases before her reported to the stand committee that they have discerned any gender, racial or culture bias or any other bias. lawyers and judges commented that she is open minded, thorough lly examines a record far more detail than many circuit judges and listens to all sides of the argument. could you tell us a little bit about the scope of the review that took place that enabled you to reach those firm conclusions? >> unlike with most federal judicial nominees, in the case of a supreme court nominee, the entire 15-member committee writes letters to the entire judiciary throughout the country

and also to lawyers throughout the country. we go through her opinions and we look to see whether lawyers appeared in front of her. and we write many letters to those people. in addition, we write to as chair eskew said, law school deans and professors and we commissioned three reading groups of professionals and practitioners. 25 law professors from syracuse and georgetown law center that read the opinions as did 11 practitioners, many of whom themselves were former supreme court law clerks. and the standards that we look at and the only standards are the professional competence, judicial temperament and integrity. and each circuit member interviewed all of the judges and lawyers who respond to our letters or who may identify as someone who knows or has worked with judge sotomayor.

those interviews are then collected. i review them. the chair and i had a personal interview with judge sotomayor in her chambers in new york. we met for over three hours. and we discussed with her in detail every criticism that we had heard of her judging and the factor that is we look at. and following that, we received the reading group reports which were each one hundreds and hundreds of pages that went through her opinions one by one. they didn't merely give an overall summary. we read those. in addition, i read every opinion she wrote on the 2nd circuit and many she wrote on the district court. in addition, we took many of her leave of standing committee, took many of her opinions and divided them up among themselves so we, too, read those opinions not merely the reading groups. and i think that's in a -- is a

snapshot of the scope of our review. but i'll give you one example if i may of how we operate. and that is, we received a critical review from a lawyer about her conduct at a particular oral argument. we identified the date of that argument and the case. we then went through the court records and the opinions that were written and we identified all of the lawyers who were involved in that case. we identified the docket she -- from the 2nd circuit for that date. so that we could identify any other lawyers who might have been present in the courtroom even though they were not there for that particular case. and we identified all of the lawyers who had any argument that day because maybe they would have a view of the panel. and then finally, we talked to the other members of the panel

to ask what their view was on her judicial temperament because we had received a fairly important criticism. and so we not only review that criticism, but we look to see how others viewed the same conduct. now, you may say that this is stacking the deck against her. because we know we have a critical comment and maybe she was having a very bad day and maybe she wasn't up to her -- the way she normally would be on the bench. but we talked to at least ten other lawyers and another member of the panel. >> and that's what the peer review process is. much of what you will read anecdotally if you talk to the legal press, you may not have personal knowledge necessarily of what the judge does or you may not have been the lawyer that participated in that argument. the reason we talk to lawyers is

because we examine whether you have personal knowledge of what you're telling us. we will ask you about the case that you are in because then we can go forward and investigate. so we talk to all the lawyers, the judges and some instances we had the pleasure of listening to the transcript because one of the allegations here was a lack of temperament. that cannot always be picked up from the written record. luckily, we were able to find out there so we could hear the tone and tenor of the hot courtroom that has been described before this committee. and so, when we come to this distinguished committee and say that this was in keeping with the practice of the 2nd circuit, we have looked at it in every way that we possibly can to ensure what took place. >> let me conclude by thanking you for the thoroughness of your evaluation and as i understand it the ultimate conclusion was to evaluate her as well qualified which is the highest

available ranking. which was unanimous. and you considered her conduct as a judge over 17 years to be and i quote exemplary. >> that's correct. >> thank you very much. the ranking member? >> thank you. thank you. good to be with you. >> and with you, sir. >> the american bar association was critical of former president bush, well, former former president bush for not asking for evaluations before the nomination was made. president obama followed that same process. since this time, have you changed your view about the viability or the advisability of conducting the -- asking a president to give the names -- a name or names before a final decision is made? >> the chair of the committee,

let me answer that. the committee does not take a stand on that. the aba may take a stand on whether it thinks it is better idea for the president to nominate or pre or post nomination standing but the committee is divorce of the side of the aba. we will conduct a neutral, nonpartisan peer review whenever the president gives us that information. >> with regard to the temperament question, some questions you ask about that. i guess the almanac, whatever had -- she -- judge sotomayor turned out to have quite a much more negative feedback from lawyers, a terror on the bench, a bit of a bully. a lot of statements like that. and yet, you still gave her the highest rating. so you talked to those people

and you are okay with that? >> we absolutely are. just to give you a sense, we talked to over 500 lawyers and not to minimize any comment because sometimes one criticism can be the most important comment on a nominee but of the 500 lawyers we spoke to, we received comments on the temperament issue from less than ten lawyers. they were mostly lawyers and judges who were outside of the 2nd circuit and were not as familiar with 2nd circuit precedent. >> i hope they don't approve of beating up lawyers too much. >> they do not -- >> just enough. let me ask you. did you -- i was troubled by the handling of the richie case. that was a summary order at first until other judges on the panel objected and then was a procurement of opinion but