as a result, since this is the first matter that you resolved -- when you have to recuse yourself, if either or both or all three of those courses -- cases came to the court. >> i indicated how i would respond to the court during this in what case and whether it did this in one or all three, this is a question where i would have to wait to see what they decide to do. . court taking serb jacar certiorari. it would be on the basis of a

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

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

serving me correctly -- and it may not be, but i think so -- that judge alito as a supreme court justice has heard issues that were similar to ones that he considered as a circuit court judge. so as i've indicated, i will take counsel from whatever the practices of the justices are, with the broader question of what -- i appreciate that. >> issues which are similar is different from an issue which is the same. i would suggest there would be an imappearance of impropriety. if you decided the issue of incorporation one way, that's the same issue that went before the court and in effect you review your own decision. that to me would be a matter of inappropriate -- and perhaps you would recuse yourself. i understand your answer.

let me ask you about what the president said whether you agree with him. he used two different analogies. he talked once about the 25 miles -- the first 25 miles of a 26-mile marathon. and then he also said in 95% of the cases, the law will give you the answer and in the last 5%, legal process will not lead you to the rule of decision. the critical ingredient in those cases is supplied by what is in the judge's heart. do you agree that the law only takes you the first 25 miles of the marathon and that last mile has to be decided by what's in the judge's heart? >> no,sir. i wouldn't approach the issue in judging the way the judge does. i can only explain what judges can do. judges can't rely on what's in their heart. they don't determine the law. congress makes the laws.

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

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

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

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

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

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

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

people who had a different point of view than yours. you said i accept the proposition as professor resnick explains, to judge is an exercise of power and there is no objective stance, but only a series of perspectives. no neutrality, no escape from choice in judging, you said. i further accept that our experiences as women and people of color will in some way affect our decisions. now, you're deep into the argument here. you've agreed with resnick there is no objective stance, only a series of perspectives, no neutrality, which just as an aside is relativism run amuck. but then you say, what the professor's quote means to me is

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

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

you acknowledge they made a big difference. it took time. then you concluded this. in short, i accept the proposition that difference will be made by the presence of women, people and color on the bench and that my experiences will affect the facts i choose to see. i don't know exactly what the difference will be in my judging, but i accept there will be some based on gender and my latina heritage. as you said in your response to senator sessions, you said that you weren't encouraging that. and you talked about how we need to set that aside. but you didn't, in your speech, say that this is not good, we need to set this aside. instead you seem to be celebrating it. the clear inference is, "it's a good thing that this is happening. " so that's why some of us are concerned, first with the president's point of view here about judging, and then the speeches, several of them, including speeches that were included in law review article that you edited that all say the

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

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

if not all of it was intended to inspire. and my whole message to those students was that i hope i see you in the courtroom someday. i often ended my speeches by saying and i hope someday you're sitting on the bench with me. and so the intent of the speech was to inspire them to believe, as i do, as i think everyone does, that life experiences enrich the legal system. i use the words, process of judging. that experience that you look for in choosing a judge, whether it's the aba rule that says the judge has to be a lawyer for "x" number of years or it's the experience that your committee looks for in terms of what's the

background of the judge? have they undertake serious consideration of constitutional questions. all of those experiences are valued because our system is enriched by a variety of experiences. it's good for the land of opportunity and to the extent that we're pursuing and showing that all groups can be lawyers and judges. >> that's the key. it shows these young people that you' talking to with a little hard work it doesn't matter where you came from, you can make it and that's why you hope to see them on the bench. i totally appreciate that. the question is if you leave them with the impression that it's good to make difference

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

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

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

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

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

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

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

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

record, i don't think it was your speech that said that, but that's what you said in response to senator sessions' question this morning. >> when we get the references made justice scalia, that was on january 11, 2006. what he said -- when i get a -- this is justice alito speaking. when i get a case about discrimination, i have to think about people in my own f durbin. >> okay. thank you, judge. i know it's been a long day and we'll try to keep it moving here. i think you are one senator away from me after taking a break. my problem, quite frankly, is that as senator schumer indicated, the cases that you've been involved in, to me, are left of center but not anything that jumps out at me, but the speeches really do. i mean, the speech you gave to the aclu about foreign law, we'll talk about that probably in the next round, was pretty disturbing. and i keep talking about these speeches because what i'm

trying -- and i listen to you today. i think i'm listening to judge roberts. i mean, you know, i'm listening to a strict constructionist here. so we've got to reconcile in our own minds here to put the puzzle together to go with that last mind is that you've got judge sotomayor who has come a long way and done a lot of things that every american should be proud of. you've got a judge who has been on a circuit court for a dozen years. some of the things trouble me that, generally speaking, left of center, but within the main stream, and you have these speeches that just blow me away. don't become a speechwriter if this law thing doesn't work out because these speeches really throw a wrinkle into everything. and that's what we're trying to figure out. who are we getting here. who are we getting as a nation? now legal realism, are you familiar with that term? >> i am. >> what does it mean for someone

who may be watching the hearing? >> to me it means that you are guided in reaching decisions in law by the realism of the situation, of the -- it's less -- it looks at the law through the -- >> kind of touchy-feely stuff. >> not quite words that i would use because there are many academics and judges who have talked about being legal realists. i don't apply that label to myself at all. as i said, i look at law and precedence and discern its principles and apply it to the situation. >> so you would not be a disciple of the legal realism school? >> no. >> all right. would you be considered a strict constructionist in your own mind? >> i don't use labels to describe what i do. there's been much discussion

today about what various labels mean and don't mean. each person uses those labels and gives it their own sense. >> when judge rehnquist says he was a strict constructionist, did you know what he was talking about? >> i think i understood what he was referencing, but his use is not how i go about looking at -- >> what does strict constructionism mean to you? >> well, it means you look at the constitution as it's written or statutes as they are written and you apply them exactly by the words. >> right. >> would you be an originalist? >> again, i don't use labels. and because -- >> what is an originalist? >> in my understanding, an originalist is someone who looks at what the founding fathers intended and what the situation

confnting them was and you use that to determine every situation presented. not every, but most situations presented by the constitution. >> do you believe the constitution is a leaving, breathing, evolving document? >> the constitution is a document that is immutable to the sense that it's lasted 200 years. the constitution has not changed except by amendments. it is a process -- an amendment process that is set forth in the document. it doesn't live other than to be timeless by the expression of what it said. what changes is society. what changes is what facts a judge may get. >> what's the best way for

society to change generally speaking? what's the most legitimate way for society to change? >> i don't know if i can use the words changed. society changes because there's been new developments in technology, medicine, in society growing. >> do you think judges -- do you think judges have changed society by some of the landmark decisions in the last 40 years? >> well, in the last few years? >> 40 years. >> i'm sorry you seed. >> 40, i'm sorry. 4-0. >> do you think roe v. wade changed american society? >> roe vs. wade looked at the constitution and decided that the constitution is applied to a claims right applied. >> anything in the constitution that says a state legislator of

a congress cannot regulate abortion or the definition of life in the first trimester? >> the holding of the court as -- >> i'm asking the constitution. does the constitution as written prohibit a legislative body, at the state or federal level from defining life or regulating the rights of the unborn or protecting the rights of the unborn in the first trimester? >> the constitution in the 14th amendment has a -- >> is there anything in the document written about abortion? >> the word abortion is not used in the constitution, but the constitution does have a broad provision concerning a liberty provision under the due process. >> and that gets us to the speech speeches. that broad provision of the

constitution has taken us from no written prohibition protecting the unborn, no written statement that you can't voluntarily pray in school and on and on and on. and that's what drives us here, quite frankly. that's my concern. and when we talk about balls and strikes, maybe that's not the right way to talk about it, but a lot of us feel that the best way to change society is to go to the ballot box, elect someone and if they are not doing it right, get rid of them through the electoral process. and a lot of us are concerned from the left and the right, that unelected judges are very quick to change society in a way that's disturbing. can you understand how people may feel that way? >> certainly, sir.

>> now let's talk about you. i like you, by the way, for whatever that matters. since i may vote for you that ought to matter to you. one thing that stood out about your record is that when you look at the almanac of the federal judiciary, lawyers anonymously rate judges in terms of temperament. and here's what they said about you. she's a terror on the bench. she's temperamental, excitable. she seems angry. she's overly aggressive, not very judicial. she does not have a very good temperament. she abuses lawyers. she really lacks judicial temperament. she believes in an out-of-control -- she behaves in an out-of-control manner. she makes inappropriate outbursts. she is nafty to lawyers. she will attack lawyers for making an argument she does not

like. she can be a bit of a bully. when you look at the evaluation of the judges on the second circuit, you stand out like a sore thumb. in terms of your temperament. what is your answer to these criticisms? >> i do ask tough questions at oral arguments. >> are you the only one that asks tough questions at oral arguments? >> no, not at all. i can only explain what i'm doing, which is when i ask lawyers tough questions, it's to give them an opportunity to explain their positions on both sides and to persuade me that they're right. i do know that in the second circuit, because we only give litigants ten minutes of oral

arguments each, that the processes in the second circuit are different than in most othe circuits across the country. and that some lawyers do find that our courts, which is not just me, but our court generally is described as a hot bench. it's a term of art lawyers use. it means that they are peppered with questions. lots of lawyers who are unfamiliar with the process in the second circuit find that tough bench difficult and challenging. >> if i may interject, judge, they find you difficult and challenging more than your colleagues. and the only reason i mention this is it stands out. there are many positive things about you and these hearings are designed to talk about the good and the bad. and i never liked appearing

before a judge that i thought was a bully. it's hard enough being a lawyer, having your client there to begin with without the judge just beating you up for no good reason. do you think you have a temperament problem? >> no, sir. i can only talk about what i know about my relationship with the judges of my court and with the lawyers who appear regularly from our circuit. and i believe that my reputation is such that i ask the hard questions, but i do it evenly for both sides. >> in fairness to you, there are plenty of statements in the record in support of you as a person that do not go down this line. but i would just suggest to you for what it's worth as you go forward here that these statements about you are striking. they're not about your colleagues. the ten-minute rule applies to

everybody. and that, you know, obviously, you've accomplished a lot in your life. but maybe these hearings are time for self-reflection. this is pretty tough stuff that you don't see from -- about other judges on the second circuit. let's talk about the wise latina comment yet again. and the only reason i want to talk about it yet again is that i think what you said -- let me just put my vices on the table here. one of the things that i constantly say when i talk about the war on terror is that one of the missing ingredients in the mideast is the rule of law that senator schumer talked about. that the hope for the mideast, iraq and afghanistan is that there will be a courtroom one day that if you find yourself in that court it would be about what you allegedly did,ot who you are. it won't be about whether you are a sunni shia, a kurd or a pashtun. it will be about what you did. and that's the hope of the world, really, that our legal

system, even though we fail at times, will spread. and i hope one day that there will be more women serving in elected office and judicial offices in the mideast. i can tell you this from my point of view. one of the biggest problems in iraq and afghanistan is the mother's voice is seldom heard about the fate of her children. and if you wanted to change iraq, apply the rule of law and have more women involved in having a say about iraq. and i believe that about afghanistan. inside i think that's true here. i think for a long time a lot of talented women were asked, can you type? and we're trying to get beyond that and improve as a nation. so when it comes to the idea that we should consciously try to include more people in the legal process and the judicial process, from different

backgrounds, count me in. but your speeches don't really say that to me. along the lines of what senator kyl was saying, they kind of represent the idea. there's a day coming when there will be more of us -- women and minorities -- and we're going to change the law. and what i hope we'll take away from this hearing is they need to be more women and minorities in the law to make a better america. and the law needs to be there for all of us, if and when we need it. and the one thing that i've tried to impress upon you through jokes and being serious is the consequences of these words. and the world in which we live in. we're talking about putting you on the supreme court and judging your fellow citizens.

and one of the things that i need to be assured of is that you understand the world as it pretty much really is. i can't find the quote but i'll find it here in a moment. the wise latina quote. do you remember it? >> yes. >> say it to me. can you recite it from memory? >> i got it. all right. i would hope that a wise latina woman with the richness of her experience would more often than not reach a better conclusion than a white male.

and the only reason i keep talking about this is that i'm in politics. and you got to watch what you say because, one, you don't want to offend people you are trying to represent. but do you understand, ma'am, that if i had said anything like that and my reasoning was that i'm trying to inspire somebody, they would have had my head. do you understand that? >> i do understand how those words could be taken that way, particularly if read in isolation. >> well, i don't know how else you could take that. lindsey graham said that i will make a better senator than x because of my experience as a caucasian male makes me better able to represent the people of south carolina and my opponent was a minority.

it would make national news, and it should. having said that, i am not going to judge you by that one statement. i just hope you'll appreciate the world in which we live in that you can say those things meaning to inspire somebody and still have a chance to get on the supreme court. others could not remotely come close to that statement inside survive. whether that's right or wrong, i think that's a fact. does that make sense to you? >> it does, and i would hope that we've come in america to the place where we can look at a statement that could be misunderstood and consider it in the context of the person's

life. and the work they have done. >> if that comes of this hearing, the hearing has been worth it all. that some people deserve a second chance when they misspeak. and you would look at the entire life story to determine whether this is an aberration or just a reflection of your real soul. if that comes from this hearing, then we've probably done the country some good. now let's talk about the times in which we live in. you're from new york. have you grown up in new york all your life? >> my entire life. >> what did september the 11th, 2001, mean to you? >> it was the most horrific experience of my personal life and the most horrific experience in imagining the pain of the

families of victims of that tragedy. >> do you know anything about the group that planned this attack, who they are and what they believe? have you read anything about them? >> i follow the newsper accounts. i've read some books in the area, so i believe i have an understanding of that. >> what would a woman's life be in their world if they can control a government or a part of the world? what did they have in store for women? >> i understand that some of them have indicated that women are not equal to men. >> i think that's a very charitable statement. do you believe that we're at war? >> we are, sir. we have tens and thousands of soldiers in the battlefields of afghanistan and iraq. we are at war.

>> are you familiar with military law much at all? and if you're not, that's okay. >> no, no, no. i'm thinking because i've never practiced in the area. i've only read the supreme court decisions in this area. i've, obviously, examine d by referencing cases some of the procedures involved in military law. but i'm not personally familiar with military law. i haven't participated -- >> i understand. from what you've read and what you understand about the enemy that this country faces, do you believe there are people out there right now plotting our destruction? >> given the announcements of

certain groups and the messages that have been sent with videotapes, et cetera, announcing that intent and the answer would be based on that? yes. >> under the law of armed conflict, and this is where i may differ a bit with my colleagues, it is an international concept, the law of armed conflict. under the law of armed conflict, do you agree with the following statement -- that if a person is detained who is properly identified through accepted legal procedures under the law of armed conflict as a part of the enemy force, there is no requirement based on a length of time that they be returns to the battle or released. in other words if you capture a member of the enemy force, is it your understanding of the law that you have to at some period

of time let them go back to the fight? >> it's difficult to answer that question in the abstract of the reason that i indicated later. i've not been a student of the law of war other than to -- >> we'll have another round. i know you'll have a lot of things to do. but try to look at that. look at that general legal concept and the legal concept i'm expousing is that under the law of war, article five specifically of the geneva convention requires the detaining authority to allow an importiant decisionmaker to determine the question of status. whether or not your a member of the enemy force. and see if i'm right about the law that if that determination is properly had, there is no requirement under the law of armed conflict to release a member of the enemy force that still presents a threat.

i'd like you to look at that. now let's talk about your time as a lawyer. the puerto rican legal defense fund is that right? is that the name of the organization? >> it was then. i think -- i know it has changed names recently. >> okay. how long were you a member of that organization? >> nearly 12 years. >> okay. if not 12 years. >> during that time, you were involved in litigation matters. is that correct? >> the fund was involved in litigations. i was a board member of the fund. >> okay. are you familiar with the position that the fund took regarding taxpayer funded abortion? the brief they filed? >> no inever reviewed those briefs. >> in their brief they argued that if you deny a low-income woman medicaid funding, taxpayer funds to have an abortion, if

you deny her that, that's a form of slavery. and i can get the quotes. do you agree with that? >> i wasn't aware of what was said in those briefs. perhaps it might be helpful if i explain what the function of a board member is and what the function of the staff would be in an organization like the fund. >> okay. >> in a small organization as the puerto rican legal defense fund was back then, it wasn't the size of other legal defense funds like the naacp legal defense fund or the mexican-american legal defense fund, which are organizations that undertook very similar work. in an organization like prld ef,

the member's main responsibility is fund-raising. i'm sure a review of the board meets would show that's what we spent the most of our time on. to the extent that we looked at the organization's legal work, it was to ensure that it was consistent with the broad mission statement of the fund. >> is the mission statement of the fund to include taxpayer funded abortion? was that one of the goals? >> our mission statement was broad like the constitution. which meant that its focus was on promoting the equal opportunities of hispanics in the united states. >> well, judge, i've got, and i'll share them with you and we'll talk about this more. a host of briefs for a 12-year period where the fund is

advocating to the state court and the federal court that to deny a woman taxpayer funds, low-income woman taxpayer assistance in having an abortion is a form of slavery is an unspeakable cruelty to the life and health of a poor woman. was it -- was it or was it not the position of the fund to advocate taxpayer funded abortions for low-income women? >> i wasn't and i didn't as a board member review those briefs. our lawyers were charged -- >> would it bother you if that's what they did? >> well, i know that the funds during the years i was there was involved in public health issues as it affected the latino community. it was -- >> is abortion a public health issue? >> well, it was certainly viewed that way generally by a number

of civil rights organizations. >> do you personally view it that way some. >> it wasn't a question of whether i personally viewed it that way or not. the issue was whether the law was settled on what issues the fund was advocating on behalf of the community it represented. and so the question would become, was there a good-faith basis for whatever arguments they were making as the fund's lawyers were lawyers. they had an ethical obligation. >> and quite frankly lawyers are lawyers and people who have causes that they believe in have every right to pursue those causes. and the fund, when you look -- you may have been a board member, but i'm here to tell you that file brief constantly for

the idea that taxpayer-funded abortion was necessary and to deny it would be a form of slavery challenged parental consent is being cruel and i can go down a list of issues that the fund got involved in that the death penalty should be stricken because it is a form of racial discrimination. what's your view of the death penalty in terms of personally? >> the issue for me with respect to the death penalty is that the supreme court since breg has determined that the death penalty is constitutional under certain situations. >> right. >> i have rejected challenges to the federal law and its application in the one case i handled as a district court

judge but it's a reflection of what my views are on the law. >> as an advocate, did you challenge the death penalty as being an inappropriate punishment because of the effect it has on race? >> i never litigated a death penalty case personally. the fund -- >> did you ever sign a memorandum saying that? >> i signed the memorandum for the board to take under consideration what positions on behalf of the latino community the fund should take on new york state reinstating the death penalty in the state. it's hard to remember because so much time has passed. >> i want you to be aware of what i'm talking about. let me ask you this. we've got 30 seconds left. if a lawyer on the other side

filed a brief in support of the idea that abortion is the unnecessary and unlawful taking of an innocent life and public money should never be used for such a hain yeinous purpose, wo that disqualify them, in your opinion, from being a judge? >> advocate advocates on behalf of the client they have so that's a different situation than how a judge has acted in the cases before him or her. >> the only reason i mention this, judge, is that the positions you took or the fund took i think, like the speeches, tell us >> live coverage of the confirmation hearing for supreme court nominee sonia sotomayor continues this week on c-span3, c-span radio and on the web at

c-span.org. we'll replay the proceedings week nights on c-span2. coming this fall, tour the home of america's highest court, the supreme court on c-span. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2009] >> "washington journal" is next on c-span. then we'll bring you part of today's sonia sotomayor confirmation hearings. and later, the u.s. house as they begin work on the annual energy and water project spending bill. .