.

>> thank you mr. chairman. in recent weeks, i have had the privilege and published a meeting 89 senators, including all the members of this committee. each of you has been gracious to me, and i have enjoyed meeting you. our meetings have given me and eliminating tour -- eliminating tour of specific states and insight into the american people. -- eliminate -- eliminatiillumi tour of specific states and insight into the american people. i want to thank my mother. i am here because of her aspirations and sacrifices for both my brother and me. mom, thank you. i am very grateful to the

president and humbled to be here today. as the nominee to the united states supreme court -- the progression of my life has been uniquely american. our parents left pr during the second world war. i grew up in the bronx housing projects. my other comic a factory worker with a third grade education passed away when i was 98 -- my father with eight third grade education was a factory worker who passed away when i was nine years old -- a third grade education was a factory worker who passed away when i was nine years old. we worked hard. i poured myself into my studies in high school burning scholarships to princeton

university and then he'll law school -- earning scholarships to princeton university and then yale law school. i try to pass on this legacy by serving as a mentor and friend to my many got children -- got childredchildrend and to stude. as a prosecutor as a corporate litigator, as the trial judge, and as an appellate judge, i have served. i saw children exploited and abused during one of my positions. i felt the pain and suffering of families torn apart by the needless deaths of loved ones.

i saw and learned the stepped-up law enforcement has in protecting the public. in my next legal job, a focus on commercial matters. i litigated issues on behalf of national and international businesses and advised them on everything from contracts to trademarks. my career as an advocate ended and my career as a judge began when i was appointed by president george h. bush to the united states district court for the southern district of new york. as a trial judge, i did decide over 450 cases and presided over dozens of trials. my most famous case was the major league baseball strike in 1995. after six extraordinary years on

the district court, i was appointed by president clinton to the united states court of appealsnb. on that court, i have enjoyed the benefit of sharing ideas and perspectives with wonderful colleagues. we have worked together to resolve the issues before us. i have now serve as an appellate judge for over one decade. i have decided a wide range of constitutional, statutory, and other legal questions. throughout my 17 years on the bench, i have witnessed the consequences of my decisions. those decisions have not be in -- not been made to serve the interests of any one person. only to serve the larger interests of impartial justice. in the past month, many senators have asked me about my judicial philosophy. it is simple. fidelity to the law.

the task of a judge is not to make law but to apply the law. it is clear, i believe, that my record reflects my rigorous commitments in interpreting the constitution according to its terms, interpreting statutes according to their terms, and reviewing the precedents established by the supreme court. i have applied the law with the facts at hand. the process of judging is enhanced when the arguments are understood and and knowledge. that is why i structure my opinions by setting out what the law requires and then explaining why a contrary position is accepted or rejected.

that is how i see how to strengthen the rule of law and strengthen the impartiality of our judicial system. my personal and professional experiences help me to listen and understand what the law always commanding the result in every case. since president obama announced my nomination in may, i have received letters from people all over this country. minitel a unique story of hope -- many tell a unique story of hope. each reflects a dream, a belief in the dream that led my parents to come to new york all of those years ago. it's our constitution that makes that dream possible. i now seek the on all of upholding the constitution as a justice on the supreme court.

senators, i did forward in the next few days to answer your questions. to having the american people learn more about me. to be part of a process that reflects the greatness of our constitution and of our nation. thank you. >> now she answers questions, and later we will hear from another person.

>> i think some people are having trouble getting in here because of the traffic today. what we are going to do is have 30 minute rounds. we will go back and forth between sides. the senators will be recognized based on seniority if they are there. if not, then we will go to the next person.

with that, as i said yesterday when we concluded, and now the american people finally have heard some judges so my your -- sonya so my york. i appreciate your opening statement -- and i appreciate your opening statement yesterday. you've had weeks of silence. you follow the traditional way of dom -- nominees. you've visited more senators than any nominee i know of for just about any position. we get used to the traditional, the press is outside t questions are asked, you give a nice wave, and keep going. but finally you're able to speak. i think your statement yesterday

went a long way answer the critics and the nay sayers. i hope everybody will keep the questions pertained to you and to your background as a judge. you're going to be the first supreme court nominee in more than 50 years to serve as a federal trial court judge. the first in 50 years to have served in both a federal trial court and a federal appellate court judge. let me ask you the obvious one. what are the qualities a judge should possess? you've had time with the trial kourlt and appellate court. what qualities should a judge have, and how does that experience you've had -- how does that shape your approach? your approach to being on the bench?

>> senator leahy, yesterday many of the senators emphasized that the values they thought were important for judging. and essential to many of their comments was the fact that a judge had to come to the process understanding the importance and respect the constitution must receive in the judging process and understanding that that respect is guided by and should be guided be a full appreciation of the limited jurisdiction of the court in our system of government, but understanding its importance as well.

that is the central part of judging. what my experiences on the trial court and the appellate court has reinforced for me is that the process of judging is the process of keeping an open mind. it's the process of not coming to a decision with a prejudgment ever of an outcome. and that reaching a conclusion has to start with understand in what the parties are arguing, but examining in all situations carefully the facts as they prove them or not prove them, the record as they create it, and then making a decision that is limited to what the law says on the facts before the judge. >> let's go in on this. one of the things that i found

appealing in your record is that you were a prosecutor. as many of us, both the ranking member and i had the privilege. you worked in the front lines. assistant district attorney of the manhattan d.a.'s office. your former boss, district attorney robert morganthal, the dean of the prosecutors said one of the most important cases you worked on was the prosecution who terrorized people at harlem. he would swi@@@@@@@ they described as a skilled legal practitioner who works pursued justice.

you know how to curb crime. how did that experience shape your views as a lawyer and also as a judge? this is about as knitting pretty as you can get -- nitty gritty as you can in criminal law. nitty-gritty as you could into the whole area of criminal law. >> i became a lawyer in the prosecutor's office. to this day i owe who i have become as who i became as the judge to mr. morganthal. he gave me the privilege and honor of working in his office that has shaped my life. when i say i became a lawyer in his office it's because in law

school, law school keeps you hypothetical. they set up facts for you. they give you a little teaching on how the facts are developed. but not a whole lot. then they ask you to a pli legal theory to the facts before you. when you work in a prosecutor's office, you understand that the law is not legal theory. it's fact. it's what witnesses say and don't say. it's how you develop your position in the record. then it's taking those facts and making arguments based on the law as it exists. that's what i took with me as a trial judge, it's what i take with me as an appellate judge. it's respect that each case gets decided case by case, applying

the law as it exits to the facts before you. you asked me a second question about the murder case. and that case brought to light for me in a way that perhaps no other case had fully done before. the tragic consequences of the needless day. in that case mr. maddox was dubbed the tarzan murder by the press because he used acrobatic fetes to gain entry into an apartment. in one case he took a rope, placed it on a pipe on top of a roof, put a paint can at the other end, and threw it into a window. in a building below and broke the window.

he then flung himself into the apartment and on the other side shot a person he found. he did that repeatedly. and as a result he destroyed family. i saw a family that had been intact with a mother living with three of her children, some grandchildren, they all worked at various jobs. some were going to school. they stood as they watched one -- the mother stood as she watched one of her children be struck by a lull et that mr. maddox fired and killed him because the bullet struck the middle of his head. that family was destroyed. they scattered to the fore winds and only one brother remains in new york who could testify.

that case taught me that prosecutors as all participants in the justice system must be sensitive to the price that crime imposes on our entire society. at the same time as the prosecutor in the case, i had to consider how to ensure that the presentation of that case would be fully understood by jurors. and to do that, it was important for us as prosecutors to be able to present those number of instances that mr. maddox had engaged in in one trial. so the full extent of his conduct could be determined by a jury. there had never been a case quite like that. where an individual who used the different acrobatic fetes to gain entry into an apartment was tried with all of his crimes in

one indictment. i researched very carefully the law and id found a theory that basically said if you can show a pattern that establish ad person's identity or assisted in establishing a person's identity then you can try different cases together. this was not a conspiracy. he acted alone. i had to find a different theory to bring his acts together. well, i presented that to the trial judge. it was a different application of the law. but it was the principles of the theory and arguing those principles to the judge. the judge permit that had joint trial of all of mr. maddox's activity. in the end carefully developing the facts in the case, making my

record -- our record, i should say, complete. we convinced the judge the theory was supported by law. that harkens back to my earlier answer, which is that's what being a trial judge teaches you. and you see it from both ends. you also as a trial judge, you see the theorys brought by prosecutors or defense. tough make your decisions based on those. you do, do you not? >> as a judge, i don't make law. so the task for me as a judge is

not to accept or not accept new theorys. it's do decide whether the law as it exists as principles that apply to new situations. >> obviously the tarzan case was a unique case. mr. morganthal singled that out as an example of the kind of lawyer you are. i stood at 3:00 in the morning as they carried the body out from the murder. i can understand how you're feeling. applying the law and applying the facts -- you told me once ultimately and completely the law is what controls.

i was struck by that. when you did. there's been great talk about the richie case. you and two other judges were assigned the appeal involving firefighters in new haven. the decision to discard the result of a paper and pencil test to measure leadership abilities. the legal issue in that case was not a new one. not in your circuit. in fact, it was a unanimous decade's old supreme court decision as well. in 1991 congress acted to reinforce the law. might note that every republican member of this committee still serving in the senate sported that part of the law.

you and two other judges came to a unanimous decision. they could not justify using the paper and pencil test under our civil rights laws. and set judicial precedence. the majority of the second target later voted not to revisit the panel's unanimous decision. you upheld within the circuit. subsequently went to the supreme court in a fair majority five justices reversed the decision. reverse reversed their precedence. many said they created a new interpretation of the law. ironically if you had done something other than follow the

precedent, some would be now attacking you as being an activist. you followed the precedent. now they attack you as being biassed and ray cyst. you're damned if you do and damned if you don't. how do you react to the supreme court's decision in the new haven firefighter's case? >> you are correct, senator, that the panel made up of myself and two other judges in the second circuit decided that case on the basis of the very thorough 78-page decision by the district court and on the basis of established precedence. the issue was not what we would do or not do because we were following precedence. because you are obligated on a panel to follow established circuit precedence.

the issue was what the city did or could do when it was presented with a challenge to one of its test that for promotion. this was not a confirmtive action case. that was a challenge to a test that everybody agreed had a very wide difference between the pass rate of a variety of different groups. faced with the possibility recognized by law that the employees who were districtically impacted, that's the terminology used in the law. and is a part of the civil rights amendment that you are talking about in 1991, that those employees who could show a

disproportionate pass rate, that they could bring a suit. and that then the employer had to defend what it gave. the city here after a number of days of hearings and variety of different witnesses decided that it went certify the test. and it wouldn't certify it in an attempt to determine whether they could develop a test that was of equal value in measure ing qualifications. but which didn't have a different impact. so the question before the panel was based on its understanding of what the law required it to do?

the panel concluded that the city's decision in that particular situation was lawful under established law. the supreme court in looking and reviewing that case applied a new standard. in fact, it announced that it was applying a standard from a different area of law and explaining to the courts below how to look at this in the future.

now that the supreme court has changed their decision, it may open up a different result. it would be bound by the new decision. it is only a 5-4 decision. >> that is now the statement of the supreme court of how employers should examine this issue. >> during the course of this nomination, some unfortunate comments and charges of racism have been made about you on television and radio. one person said you were the equivalent of the head of the ku >> klan -- kkk. another person said you were a bigot.

of the kuklux klan. another referred to you as a bigot. they have not repeated those charges. but you haven't been able to respond to any of these things. you've had to be quiet. your critics are taking lines out of your speeches. twisted my view to mean something you never intended. you said you would hope that a wise latina woman would reach wise decisions. i remember other justices most recent one talking about the experience of his -- immigrants in his family and how that would influence his thinking and help him reach decisions. and you also said in your speech

that you love america and great things could be achieved if one works hard for it. you said judges must transcend their preferences and inspire to achieve a greater disparity based on the reason of law. but you told me that law is what controls. so tell us, you have heard all of these charges and counter charges of the wise latina and on and on. here's your chance. you tell us what's going on here, judge. >> thank you for giving me an opportunity to explain my remarks. no words i have ever spoken or written have received so much attention.

i gave my speech to a variety of different groups. most often the groups of women or to groups most particularly of young latino lawyers and students. as my speech made clear, i was trying to inspire them to believe that their life and experiences would enrich the legal system. because different life experiences and backgrounds always do. i don't think that there is a quarrel with that in our society. i was also trying to inspire them to believe that they could become anything they wanted to become. just as i had. the context of the words that i have spoke have created a

misunderstanding, and misunderstanding and to give everyone assurances, i want to state up front unequivocally and without doubt i do not believe that any racial, ethnic or gender group has an advantage in sound judging. i do believe that every person has an equal opportunity to be a good and wise judge regardless of their background or life experiences. the words that i used. i used agreeing with the sentiment that the justice was attempting to convey. i understood the sentiment to be that both men and women were equally capable of being wise

and fair judges. that has to be what she meant. because judges disagree about legal outcomes all of the time. or at least in close cases they do. justices on the supreme court come to different conclusions. it can't mean that one of them is unwise. despite the fact that some people think that. so her literal words couldn't have meant what they said. she had to have meant that she was talking about the equal value of the capacity to be fair and impartial. >> you've been on the bench for 17 years. have you set your goal to be fair? show integrity based on the law?

>> i believe my 17 year record on two courts which show that in every case that i render, i first gds what the law required r under the facts before me. and that what i do is explained to litigants why the law requires a result. and whether their position is sympathetic or not, i explain why the results are commanded by law. >> doesn't your oath of office require you to do that? >> that is the fundamental job of a judge. >> let me talk to you about district of columbia versus heller. that second amendment has the right to keep and bear arms. and that it's a individual right. i haven't fired an arm since my early teen years, i suspect a

large majority of vermonters do. i enjoy target shooting on a regular basis at our home in vermont. i watch that had decision rather carefully. is it safe to say that you accept the supreme court's decision as establishing the second amendment right is an individual right? is that correct? >> yes, sir. >> then the second circuit decision. you in fact recognized the supreme court decide that had the personal right to bear arms is guarantee d by the second amendment of the constitution against federal law restriction sch . is that correct? >> it is. >> you used the heller decision?

>> completely, sir. i accepted and applied, established the supreme court precedence that the supreme court in its own opinion acknowledged answered a different question. >> let me refer to that. her opinion in the case left unresolved and reserved as a separate question whether the second amendment guarantee applies to the states and laws adopted by the states. now the unanimous decision i

know they agreed with the second circuit decision. we all know that not every constitutional right has been applied to the states by the supreme court. one of my first cases was whether the fifth amendment made the grand jury applicable to the state. the supreme court has not held that applicable to the state. 7th amendment, right to jury trial. eight amendment, prohibition against excessive fines. these have not been made applicable to the state.

i'm not going to ask about that case before the supreme court. how you're going to rule. but would you have an open mind on the supreme court in valuing the legal proposition on whether second-amendment rights should be considered fundamental rights and thus applicable to the states. >> like you i how important the right to bear arms is to many, many americans. one of my god children is a member of the nra. i have friends who hunt. i understand the individual right fully that the supreme court recognized. as you pointed out the supreme

court was addressing a very narrow issue, which was whether an individual right under the second amendment applied to limit the federal government's rights to regulate the possession of firearms. the court expressly identified supreme court precedence has said that that right is not incorporated against the state. ha that term of incorporation means in the law is that doesn't apply to the state in its regulation of its relationship with its citizens. it's a legal term. it's not talking about the importance of the right in the legal term. it's talking about incorporated against the state.

when maloney came before the second circuit, as you indicated, myself and two other judges read what the supreme court said, saw that it had not explicitly rejected the precedence and followed the precedence. it's the job of the supreme court to change it. you asked me -- i'm sorry, senator. i didn't mean to cut you off. but you asked me whether i have an open find on that question. absolutely. my decision on maloney would be to follow the precedence of the supreme court when it speaks toly on an issue. i would not prejudge any question that came before me if i was a justice on the supreme court. >> let me -- i just asked senator sessions. i want to ask one more question.

and it goes to the area of prosecution. you've heard appeals in over 800 criminal cases. many convictions for terror cases. 99% of the time at least one republican judge on the appointed panel agreed with you. let me ask you about one. the united nations versus donald. the mayor of waterbury, connecticut. the victim the young daughter, niece of a prostitute. young children who as young as 9 and 11 were forced to engage in sexual acts with the defendant. the mayor was convicted under a law passed by congress prohibiting the use of any facility or means of interstate commerce to transmit or contact information about person under 16 for the purpose of illegal sexual activity. you spoke for a unanimous panel including judge jacobs and judge hall. you upheld the conviction against the constitutional

challenge that the federal criminal statute in question exceeded congress's power to the congress clause. i appreciate your deference to prohibit illegal conduct. did you have any difficulty in reaching the conclusion that you did in the case? >> no, sir. >> thank you. i'm glad you reached it. senator sessions. and i appreciate senator sessions forebearance. >> i hope we have a good day today. look forward to dialogue with you. i got to say that i like your statement on the fidelity of the law yesterday and some of your comments this morning. had you been saying that with clarity over the last decade or 15 years we would have fewer

problems today. you have evidenced -- i think it's quite clear, a philosophy of the law@@@@@@@ @ @ @ @ @ @ å bob like to ask you a few things about it. it is not just one sentence as my chairman suggested that causes the difficulty, it is a body of thought over several years that causes this difficulty. i suggest that what he gave was not right regarding the comment that was made. he said six different times that i would hope that -- they would

reach a better conclusion. of her experiences would more often than not reach a better conclusi conclusion. so that's a matter i think we'll talk about as we go forward. let me recall that yesterday you said it's simple but delicately to the law. the task of a judge is not to make law, it's to apply law. i heartedly agree with that. previously you said the court of appeals is where policy is made. you said in another occasion the law that lawyers practice and judges declare is not a definitive capitol "l." law that many would like to think exists. so i'm asking today, what do you really believe on those

subjects? that there is no real law? the court of appeals is where policy is made. discuss that with us, please. >> i believe my record of 17 years demonstrates fully that i do believe that judges must apply the law and not make the law. whether i've agreed with a party or not, found them sympathetic or not, in every case i have decided i have done what the law requires. with respect to judges making policy, i assume, senator, that you were referring to a comment i made in a duke law dialogue. that remark in content made very clear that i wasn't talk iing

about the policy reflected in the law that congress makes. that's the job of congress to this decide what the policy should be for society. in that conversation with the student i was focusing on what district court judges do and circuit court judges do. i noticed that district court judges apply the facts to the individual case. when they do that they're findings doesn't bind anybody else. appellate judges, however, establish precedence. they decide what the law says in a particular situation. that precedence has policy ramification. because it binds not just the litigants in that case but all

lit gats in similar cases and cases that may be influenced by the precedent. i think that it's very clear that i was talking about the policy ramifications of precedence. and never talking about appellate judges or courts making the policies that congress make. >> i don't think it was that clear. i looked at that tape several times. yesterday you spoke about your approach to rendering opinions and said i seek to strengthen the rule of law and faith and impartiality in the justice system. i would agree. but you have previously said this. i am willing to accept that we

who judge must not differences resulting from experience and heritage, but attempt as the stream court suggests continuously to judge when those opinions, sympathies and prejudices are appropriate. so first i would like to know, do you think there's any circumstance in which a judge should allow their prejudices to impact their decision making? >> never their prejudices. i was talking about the very important goal of the justice system is to ensure the biases of a judge. i was talking about the obligation of judges to examine what they're feeling as they're adjudicating a case and to sure that that's not influencing the outcome.

life experiences have to move you. we have to recognize those feelings and put them aside. that's what my speech was saying. that's our job bchlt. >> but the statement was i willingly accept that we who judge must not deny the differences resulting from experience and heritage. but continually judge when those are appropriate. that's exactly opposite of what you're saying, is it not? >> i don't believe so, senator. all i was saying is because we have feelings and different experiences, we can be let to believe that our experiences are appropriate. we have to be open minded to accept that they may not be and that we have to judge always

that we're not letting those things determine the outcome. there are situations in which some experiences are important in the process of judging because the law asks us to use those experiences. >> i understand that you want to increase the faith and impartiality of the system. this statement suggest you accept that there may be sympathies, prejudices and opinions that legitimately can influence a judge's decision. how can that further faith in the impartiality of the system. >> i think the system is strengthened when judges don't assume they're impartial. but when judges test themselves to identify when their emotions are driving a result or their

experiences are driving a result and the law is not. >> i agree with that. i know one judge that says if he has a feeling about a case, he tells his law clerks to watch me. i do not want my biases, sympathies or prejudices to influence the decision which i've taken an oath to make sure is impartial. i'm very concern that had what you're saying today is quite inconsistent with your statement that you willingly accept that your prejudices may influence your decision making. >> well -- as i have tried to explain, what i try to do is to ensure that they're not. if i ignore them and believe that i'm acting without them without looking at them and testing that i'm not then i could be led to do the thing i don't want to do, let something

but the law command the results. >> yet today you always said that your decisions have always been made to serve the larger interest of impartial justice. a good aspiration, i agree. in the past you repeatedly said i wonder whether achieving the goal of impartiality is possible at all. in even most cases and i wonder whether by ignoring our differences as women, mean, people of color, we do a disservice to people of the society. aren't you saying there that you expect your background and heritage to influence your decision making. >> what i was speaking about in that speech harkens back to what we were just talking about a few minutes ago. which is life experiences do influence us. in good ways.

that's why we seek the enrichment of our legal system from life experiences. that can affect what we see or how we feel, but that's not what drivers a result. the impartiality is an understanding that the law is what commands the result. most of my speech was an academic discussion about what should we be thinking about, what should we be considering in the process in accepting that life experiences could make a difference? but i wasn't attempting to encourage the belief that i thought that that should drive the result. >> yuj, i'm -- i think it's consistent in the comments i quoted to you in your previous statements that you do believe that your background will affect the result of cases.

that's troubling me. that's not impartiality. that is not consistent with the statement that you believe rour role is impartial. >> no, sir. as i've indicated my record shows that at no point or time have i ever pmitted my personal views or sympathies to influence the outcome of the case. in every case where i have identified a sympathy, i have articulated it and explained to the litigants why the law requires the different result. i do not permit my sympathies, personal views or prejudices to influence the outcome of my cases. >> well, you said something similar to that yesterday. that in each kals i applied the law to facts at hand. but you repeatedly made this

statement. i accept the proposition that a difference there will be by the presence of women and people of color on the bench and my experiences affect the facts i choose to see as a judge. that's troubling to me as a lawyer. when i present evidence i expect the judge to see and hear all the evidence. how is it appropriate for a judge to ever say they will choose to see some facts and not others? >> it's not a question of choosing to see some facts or another, senator. i didn't intend to suggest that. what i believe the point i was making was that our life experiences do permit us to see some facts and understand them more easily than others. but in the end you're absolutely

right. that's why we have appellate judges that are more than one judge. each of us from our life experiences will more easily see different perspectives argued by party. but judges do consider all of the arguments of litigants. i have. most of my opinions if not all of them explain to parties why the law requires what it does. >> do you standby your statement that my experiences affect the facts i choose to see. >> no, sir. i don't standby the understanding of that statement that i will ignore other facts or other experiences because i haven't had them. i do believe that life experiences are important to the process of judging. they help you to understand and listen. but that the law requires this.

>> you made that statement in individuals speeches about seven times over a number of years. and it's concerning to me. i would just say to you, i believe in the judge's formulation. she said, and you disagreed, and this was really the context of your speech. and you used her statement as sort of a beginning of your discussion. you said she believes that a judge no matter what their gender or background should strive to reach the same you deal with the famous code of justice o'connor where she says a wise old man will reach the same conclusion as a wise old woman. you do not think that is

necessarily accurate. you doubt the ability to be objective. how can you reconcile your speeches which assert that impartiality is a mere aspiration that may not be possible in all or most cases with the oath and you have taken twice which requires impartiality? >> my friend is here this afternoon. we are good friends. i believe that we both approach to judging in the same way which is looking at the facts of each individual case and applying the law to those facts. i also as i explained it was using a rhetorical flourish that fell flat. i knew that justice o'connor could not admit that if judges reach different conclusions, legal conclusions that one of

them was not wise. . met if judges reach different legal conclusions that one of them wasn't wise. that couldn't have been her meaning because reasonable judges disagree. on legal conclusions in some cases. i was trying to play on her words. my play fell flat. it was bad. it left an impression that i believe that life experiences command a result in the case. that's clearly not what i do as a jung. it's clearly not what i intended in the contest of my broader speech. it was to believe that their life experiences added value. >> well, i can see that perhaps as a layperson approach to it.

as a judge who took the oath that you repeatedly made statements that consistently argues that this ideal and commitment. i believe everybody judge is committed, must be, to put aside the personal experiences and biases and make sure that that person before them gets a fair day in court. so filts fi can impact your judging. it's much more likely to reach full flower if you sit on the supreme court than it will on a lower court where you're subject to review by your colleagues. so with regard to how you approach law and your personal experiences, let's look at the new haven firefighters cases.

the city of new haven told firefighters they would take an examine, set forth the process to determine who would be eligible for promotion. the city spent a good deal of time and money on the examine to make it a fair test of a person's ability to serve as a supervisory fireman which in fact has the awesome responsibility at times to send their firemen into a dangerous building o on fire. they had a panel that did oral examines. wasn't all written. and according to the supreme court, this is what the supreme court held. the new haven officials were careful to ensure broad racial participation in the design of the task and its administration. the process was open and fair.

there was no genuine dispute that the examinations were job related and consistent with business necessity. but after the city saw the result of exam, it threw out those results because one group did well enough on the task. the supreme court then found that the city rejected the result because the high scoring candidates were white. after the tests were completed the raw racial results became the predominant rationale for the city's refusal to certify the results. so you've stated that your background affects the facts that you choose to see. was the fact that the new haven

firefighters were subject to discrimination. one of the facts you chose not to see in this case. >> no, sir. the panel was composed of me and two other judges in a very similar case. i'm sorry -- i misspoke. it wasn't judge easterbrook, they saw the case in an identical way. neither judges -- i confuse ad statement. i apology. in a similar case the sixth circuit approached a very similar issue in the same way. so a variety of different judges on the appellate court were looking at the case in light of established supreme kurt and second circuit precedence. and determined that the city facing potential liability under

title seven could choose not to certify the tests. the supreme court, as it is its prerogative in looking at a challenge, established a new consideration or a different standard for the city to apply. and that is with their substantial evidence that they would be held liable under the law. that was a new consideration. our panel didn't look at that issue that way. it wasn't argued to us in the case before us. the case before us was based on existing precedence. it's a different test. >> judge, there was apparently unease within your panel.

i was really disapointed and a lot of people have been that the opinion was so short. it did not discuss the serious legal issues that the case rose. and i believe that's legitimate criticism of what you did. it appears according to a writer for the national journal, it appears that the judge was concerned about the outcome of the case. was not aware of it because it was an unpublished opinion. but it began to raise the question of whether a hearing should be granted. you say you're bound by the superior authorities. but the fact is when the question of rehearing that second circuit authority that you say covered the case, some says it didn't cover so clearly. that was up for debate. the circuit voted. and you voted not to reconsider

the prior case. you voted to stay with the decision of the circuit. . in fact, your vote was the key vote. had you voted for the judge himself, had you voted with him, you could have changed that case. in truth you weren't bound by the case. you must have agreed with it. and agreed with the opinion. and stayed with it until it was reversed by the court. let me just mention this. in 1997 -- >> was that a question? >> well, that was a response so some of what you said, mr. chairman. you misrepresented fact chully what the -- the posture of the case. >> i obviously will disagree with that. but we'll have a chance to vote on the issue. >> in 1997 when you became before the senate.

i was a new senator. i asked you this. in a suit challenging a government racial preference will you follow the supreme court decision and subject racial preferences to the strictest judicial scrutiny? in other words, i asked you would you follow the supreme court's binding decision the supreme court held that all governmental organizations that discriminated by race of an applicant must face strict securityny in the court. this is not a light thing to do. when one raises favor over another, you must have a really good reason for it, or it's not accepted. the government agencies must prove there's a compelling state interest in support of any decision to treat people

differently by race. it determines the same level of strict scrutiny applies for the purpose of evaluating the constitutionality of all government classifications. whether at the state or federal level based on race. so that was your answer. it deals with the government being the city of new haven. in view of this commitment you gave me 12 years ago. equal protection and strict scrutiny are completely missing from any of your panel's discussion on this decision. >> because those cases were not what was at issue in this decision, and, in fact, those cases were not what decided the supreme court's decision.

the supreme court parties were not arguing the level of skrurt des moines, iowa that would apply with respect to intentional discrimination. the issue is a different one before our court in the supreme court, which is what's a city to do when there is proof that its test districtly impacts a group. the supreme court decided not on the basis of scrutiny that what it did here was wrong, what the city did here was wrong, but on the basis that the city's choice was not based on a substantial basis in evidence to believe it would be held liable under the law. those are two different standards. two different questions. that a case would present. >> judge, it wasn't that simple. this case was recognized soon as a big case. at least what perhaps kicked off the judge's concern was the

lawyer saying it was the most discrimination case that the circuit had seen in years. they got basically a one paragraph decision unsigned back on that case. judge cabrana raised the issue within the circuit, asked for rehearing, your vote made the difference in not having a rehearing, in fact. and he said municipal lawyers could reflect the impact of your decision. municipal employers could reject the results of an informant examination whenever the results failed to yield a desirable outcome. failed to satisfy a racial quota. that was the judge's analysis of the impact of your decision.

he thought it was very important. he wanted to review the case. he thought it deserved a full and complete analysis and opinion. he wanted the whole circuit to be involved in it. the circuit could have preserved the precedence if they chose to do so. tell us how it came to be this important case was dealt with in such a cursory manner. >> it was based on the 78-page opinion. it was referenced by the circuit. it relied on a very thoughtful, thorough opinion by the district court.

the justice had within view of the case. the panel had another. the majority of the court, not just my vote, denied the petition for rehearing. the court left to the supreme court the question of how an employer should address, no one disputed the evidence that its test desperately impacted on a group. that was undisputed by everyone. it brought lawyers to bring a suit. the question was for the city was it racially discriminating when it didn't accept those tests or was it attempting to comply with the law? >> i guess it's fair to say a

majority voted against rehearing. but it was 6-6, @@@@i @ @ @ @ @ and your vote made the difference. ricci did talk about important issues. issues we have got to talk about as a nation amount of -- and work it through and do it carefully. but do you think frank ricci and the other firefighters whose claims you dismissed felt that their arguments and concerns were appropriately understood and acknowledged by the court when the opinion was so short? >> we were extremely sympathetic to mr. ricci and the others and understood the challenges they had undertaken in taking the test and said as

much. law. that's why they were pursuing the claims. in the end the body that had the discretion in power to decide how the tough issues should be the decided, the precedence was recognized by our circuit court. that's what the supreme court did. it answered that important question. it had the power to do that not the power but the ability to do

that. the panel was dealing with precedence and arguments that relied on our precedence. >> thank you, judge. i appreciate the opportunity. i would just say had the procurement opinion stood without a rehearing requested by one of the judges in the whole circuit and kicked off the discussion. it's very, very unlikely that we would have heard about this case or the supreme court would have taken it up. thank you plrks chairman. >> thank you. obviously we can talk about your speeches. ultimately we determine how you act as a judge. and how you make decisions. i will put into the record the american bar association, which is unanimously given you the highest rating. i have put into the record the new york city bar which said you're extremely well credentialed to sit on the

supreme court. congressional research service analyzed your cases and found that you consistently deal with the law and quoting a past judicial precedence. put in that the nonpartisan center in the mainstream. then another analysis that more than 800 of your cases that you've called a contentious -- i thought i would put those in. it's one thing to talk about speeches you might give. i'm more interested about cases you might decide. >> thank you, mr. chairman. good morning, judge sotomayor. >> good morning. >> senator sessions spent a great deal of time on the new haven case. i would like to see if we can't

put it into some perspective. isn't it true that ricci was a very close case? isn't it true that 11 of the 22 judges who reviewed the case did agree with you, and that it was only reversed by the supreme court by a one vote, 5-4 margin? so do you agree, judge, that it was a close case, and that reasonable minds could have seen it in one way or another and not be seen as prejudice or unable to make a clear decision? >> to the extent that reasonable minds can differ on any case, that's true. to what the legal conclusion should be in a case. but the panel as the case was presented to itself was relying on the reasonable views the second circuit precedent established. so to the extent that one that

which guides and gives stability to the law. then those reasonable minds who decided the precedence and the judges who apply it are coming to the legal conclusion they think the facts and law require. >> all right. judge, we've heard several colleagues now. particularly on the other side criticize you because they believe things you've said in speeches show that you'll not be able to put your personal views aside. rather than pulling lines out of speeches often times out of contest text, the better way is to examine your record as a judge. alito said if you want to know what sort of justice i would make, look at what sort of judge i had been. you've served as a federal judge for the past 17 years, last # 11

as an appellate court judge. i believe it's plain you are a careful jurist, respectful of precedence, and ou thor of carefully reasoned decisions. the best evidence is the infrequency with which you have been reversed. you have offered over 230 majority opinions in your 11 years on the second circuit court of appeals. in only three of the 230 plus cases have your decisions been reversed by the supreme court. a very, very low reversal rate of 2%. doesn't this indicate you do have an ability to be faithful to the law and put your personal opinions and backgrounds aside when deciding cases as you have in your experience as a federal judge. >> i believe what my record showed is that i follow the law.

and that my small reversal rate -- these are the vast body of cases that i have examined. i've been a participant in thousands more that have not been either reviewed by the supreme court or reversed. >> i agree with what you're saying. i would like to suggest that this con stantd criticism of you and your able to be a partial judge is totally refuted by the record you've compiled as a federal judge up to this point. we heard recently that judges are like umpires, simply calling balls and spriks. so we do like to take the opportunity to give us your view about this sort of an analogy?

>> few judges claim they love baseball more than i do. for obvious reasons. but, i prefer to describe what judges the do u like an umpire tochlt be impartial and bring an open mind to every case before them. by an open mind i mean a judge who looks at the fact of each case, listens and understands the arguments of the party, and applies the law as the law commands. it's a refrain i keep repeating because that is my philosophy of judging. applying the law. to the facts at hand. that's my way of judging. >> thank you. >> judge what supme court justices do you most identify with? which ones might we expect you

to be agreeing with most of the time in the event that you are confirmed? >> senator, to suggest that i admire one of the sitting supreme court justices would suggest that i think of myself as a clone of one of the justices. i don't. each one of them brings integrity, their sense of respect for the law, and their sense of their best effort and hard work to come to the decisions they think the law requires. going further than that would put me in the position of suggesting that by picking one jis tis i was disagreeing or criticizing another. i don't wish to do that. i wish to describe just myself.

i'm a judge who believes that the facts drive the law. and when i say drive the law i mean determine how the law will apply in that individual case. if you would ask me instead if you permit me to tell you a justice from the past applying the that approach to the law. he had an unlikely passing. he had been a judge on the new york court of appeals for a very long time. and during his short tenure on the bench one of the factors he was so well known for was his great respect for precedence.

respect to the legislative branch. in those regards i do admire those parts of justice which he was most famous for and think that this is how i approach the law. as a case by case application law to the fact. >> appreciate that. judge sotomayor. many of us are impressed by you and your nomination and we hold you in great regard. kbu i believe we have a right to know what we're getting before we give you a lifetime appointment to the highest court in the land. in past confirmation hearings we've seen nominees who tell us one thing during our private meetings and in the confirmation hearings go to the court and become a justice quite different from the way they portrayed themselves at the hearing. i would like to ask you questions about a few issues that have generate much discussion. first affirmative action.

judge, first i would like to discuss the issue of affirmative action. we can all agree that it is good for our society when employers, schools and government institutions encourage diversity. on the other hand the consideration of ethnicity or gender should not trump qualifications or turn into a rigid system. without asking how you would rule any any particular case, what do you think of affirmative action? do you think affirmative action is a necessary part of our society today? do you agree with justice o'connor that she expects the use of racial preferences will no longer be necessary to promote diversity? do you believe affirmative action is more justified in education than in employment? or do you think it makes no difference?

in terms of legislative or em employer determination in terms oaf what issue it is addressing. and what remedy it is look iingt for structure. it pro motes the equal protection of law of all citizens in the 14th amendment. to ensure that protection there are situations in which race in some form must be considered. the courts have recognized that. equality requires efforts. and so there are some situations in which some form of race has been recognized by the court.

the university of michigan in law school admissions. 20 more years won't be needed to be considered in any situation. that's the hope. we've taken such great strides in our society to achieve that hope. there are situations in which there are compelling state interests and the admissions case that justice o'connor was looking at, the court recognized that in the education field. and the state is applying a solution that is very narrowly tailored. and therefore determined that the law school's use of race is only one factor among many others.

with no presumption circumstances in@@@@ >> that is what the court has said about the educational use of race in a narrow way. the question as i indicated of whether that should apply in other contexts has not been looked at by the supreme court directly. the holdings of that case have not been applied for discussed in another case. that would have to await another state action that would come before the court where the state would articulate its reasons for doing what it did and the court would cover if

those actions were constitutional or not the >> thank you. bush versus gore. many saw the action as an example of the judiciary improperly injecting itself into a political dispute. in your opinion should the supreme court even have decided to get involved in bush v gore? that case took the attention of the nation and there's been so much discussion about what the court did or didn't do. i look at the case and my reaction as a sitting judge is not to criticize it or to challenge it, even if i were disposed that way because i don't take a position on that. the court took and made the decision it did.

the question for me as i look at that generous situation, it only happened once in the lifetime of our country is that some good came from that discussion. there's been and was enormous electoral process changes in many states as a result of the flaws that were reflected in the process that went on. that is a tribute to the greatness of our american system which is whether you agree or disagree with the supreme court decision that all of the branches become involved in the conversation of how to improve things and as i indicated, both congress who devoted a very significant amount of money to electoral reform in certain legislation and states have looked to address what happened there. >> judge, in a 5-4 decision in

2005, the supreme court ruled that kilo versus the city of new london was -- that it was constitutional for local government to seize private property for private, economic development. many people including myself were live about the consequences of this landmark ruling because of the rule of descending justice o'connor under the logic of the kilo case, quote, nothing is to prevent the state from replacing any motel 6 with a ritz carlton. any home with a shopping mall or any farm with a factory, unquote. this decision was a major shift in the law. it said private development was a permissible, quote, public use. according to the fifth amendment as long as it provided economic growth for the community. what is your opinion of the kilo decision, judge sotomayor? what is an appropriate, quote, public use for condemning private property?

kilo is now a precedence of the court. i must follow it. i am bound by a circuit -- a supreme court decision that's the second circuit judge, as a supreme court judge i would r to give it what starry dicis suggests. the question of the reach of kilo has to be examined in the context of each situation and the court did in kilo knowhat there was a role for the courts to play in ensuring that taking it by a state did, in fact, intend to serve the public, a public purpose and public use. i understand the concern that many citizens have expressed about whether kuilo did or did

not honor the importance of property rights, but the question in kilo was a complicated one about what constituted public use and there the court held that a taking to develop an economically plighted area was appropriate. >> yes, that's what they decided in kilo. i asked you your opinion and apparently you feel that you're not in a position to offer an opinion because it's precedent and now you're required to follow precedent. as an appellate court judge, but i asked you if you would express your opinion assuming that you became a supreme court justice and assuming that you might have a chance some day to review the scope of that decision. >> i don't pre-judge issues. >> okay. >> that is, actually, i come to every case with an open mind. >> all right.

>> every case is new for me. >> that's good. all right. let's leave it there. >> as you know, judge, the landmark case of griswald, versus connecticut guarantees there's a fundamental right to privacy as it applies to contraception. >> that is the precedent of the court, so it is a law. >> is there a general constitutional right to privacy and where is the right to privacy in your opinion following the constitution? >> there is a right of privacy. the court has found it in various places in the constitution, has recognized rights under those various provisions of the constitution. it's founded in the fourth amendment's right and prohibition against unreasonable search and seizures. most commonly, it's considered, i shouldn't say, most commonly because search and seizure cases

are quite frequent before the court, but it's also found in the 14th amendment of the constitution when it is considered in the context of the liberty interests protected by the due process clause of the constitution. >> all right. judge, the court's ruling leads to foundation for roe versus wade. in your opinion has roe set a law some. >> the court's decision in planned parenthood reaffirmed the cor holding of roe. that is the precedence of the court and settled in terms of the holding of the court. >> do you agree with justices of suitor, o'connor and casey which reaffirm the court holding in roe? >> as i said, stacy reaffirmed the holding in roe. that is the supreme court's settled interpretation of what

the core holding is and its reaffirmance of it. >> all right. let's talk a little bit about cameras in the court. you sit on a court of appeals which does allow cameras in the court and from all indications, your experience with it has not been negative. in fact, i understand it's been somewhat positive. so how would you feel about allowing cameras in a supreme court where the country would have a chance to view discussions and arguments about the most important issues that the supreme court decides with respect to our constitution and our rights and our future. >> i have had positive experiences with cameras when i have been asked to join experiments of using cameras in the courtroom. i have participated. i have volunteered. perhaps it would be useful if i explain to you my approach to

collegiality on a court. it is my practice when i enter a new enterprise, whether it's in a court or in my private practice when i was a prosecutor to experience what those courts were doing or those individuals doing that job were doing. understand and listen to the arguments of my colleagues about why certain practices were necessary or helpful or why certain practices isn't be done or new procedures tried and then spend my time trying to convince them, but i wouldn't try to come in with prejudgement so that they thought that i was unwilling to engage in a

conversation with them or unwilling to listen to their views. i go in, and i try to share my experiences, to share my thoughts and to be collegial and come to a conclusion together, and i can assure you that if this body gives me a privilege of becoming justice of the supreme court that i will follow that practice with respect to the issues of procedure on the court including the question of cameras in the courtroom. >> i appreciate the fact that if you can't convince them, it won't happen, but how do you feel? how do you feel about permitting cameras in the supreme court recognizing that you cannot decree it? >> you know -- >> do you think it's a good idea? >> i'm a pretty good litigator. i was a really good litigator, and i know that when i worked

hard at trying to convince my colleagues of something after listening to them they'll often try it for a while. we'll have to talk together. we'll have to figure out that issue together. i would be again, if i was fortunate enough to be confirmed, a new voice in the discussion. a new voice is often see things and talk about them and consider taking new approaches. >> all right. >> judge, all of us in public office other than judges have specific, fixed terms and we must run for re-election if you want to run for office and even most judges have fixed term of office. . it is different. you have no term of office, instead, you serve for life. would you support term limits for supreme court just itses, for example, 15, 20 or 25 years. would this help ensure that justices do not become victims of a cloifterred ivory tower

existence and that you would be able to stay in touch with the problems of ordinary americans, term limits for supreme court justices? >> all questions of policy are within the providence of congress first. and so that particular question would have to be considered by congress first, but i would have to consider it in light of the constitution and the facts that govern these issues. and so that first step and decision would be congress'. i can only know that there was a purpose to the structure of our constitution and it was a view by the founding fathers that they wanted justices who would not be subject to political whim or to the emotions of a moment and they felt that by giving them certain protection that that would ensure that their

objectivity and their impartiality over time. >> sure. >> i do know, having served with many of my colleagues who have been members of the court sometimes for decades, i had one colleague who was still an active member of the court in his 90s, and at close to 90 he was learning the internet and encouraging my colleagues of a much younger age to participate in learning the internet. so i don't think that it's service or the length of time. i think there's wisdom that comes to judges from their experience that helps them in the process over time. i think in the end it is a question of one of what the structure of our government is best served by and as i said, that policy question will be

considered first by congress and the processes set forth by the constitution, but i do think there is a value in the services of judges for long periods of time. >> all right, judge. i'd like to turn to anti-trust law. anti-trust law is not a mysterious legal theory. antitrust is an old fashioned word for fair competition, judge, and it is a law that we used to protect consumers and competitors alike from unfair and illegal trade practices. the prominent antitrust lawyer named carl was quoted in an a.p. story recently that, quote, judge sotomayor has surprisingly broke the pro-business record in the area of antitrust. in nearly any case that he was one of the three judges considering a dispute, the court ruled against the plaintiff bringing an anti-trust complaint. i'd like you to respond to that and to one other thing i'd like

to raise. in 2007 legion case in a 5-4 decision, the supreme court @@@, what do you think of this decision? do you think it was appropriate for the supreme court by judicial fiat to overturn a nearly century old decision on the meaning of the sherman act that businesses and consumers had come to rely on and which had been never altered by congress? those two things. antitrust. >> i cannot speak, senator, to whether legins was right or wrong. it's now the established law of the court. that case in large measure

centered around the justices' different views of the effects of stare decisis on a question which none of them seemed to dispute that there were a basis to question the economic assumptions of the court in this field of law. is to question the economic assumptions of the court in this field of law. leggins is the court's holding. its teachings and holding i would have to apply in new cases, so i can't say more than what i know about it and what i thought the court was doing there. with respect to my record, i can't speak for why someone else would view my record as suggesting a pro or antiapproach

to any series of cases. all of the business cases as with all of the cases, my structure of approaching is the same. what does the law require? i would note that i have cases that have upheld antitrust complaints and upheld those cases going forward. i did it in my visa/mastercard antitrust decision and that was also a major decision in this field. all i can say is that with business in the interest of any party before me, i will consider and apply the law as it is written by congress and informed by precedent. >> thank you very much, judge sotomayor, and i thank you, mr. chairman. >> thank you. judge sotomayor, it is an appropriate place to take a

short break and we will, and then we'll come back and at some point we will break for both the republicans and the democrats being the caucus, but it also gives you a chance to have lunch. so we'll take a -- we'll take a ten-minute, a flexible &72

>> more questioning now from members of the judiciary committee. senators feingold and kyl. feingold? >> judge, let me first say i don't mind telling you how much i'm enjoying listening to you, both your manner and your obvious tremendous knowledge and yu understanding of the law. in fact, i'm enjoying it so much

that i hope when you go into these deliberations about cameras in the courtroom, that you consider the possibility that i and other aricans would like the opportunity to observe your skills for many years to come in the comfort of our family rooms and living rooms. i think -- >> you were a very good lawyer, weren't you, senator? >> but i'm not going to ask you about that one now. let me get into a topic that i discussed at length with two most recent supreme court nominees. chief justice roberts and justice alito. that's the issue of executive power. in 2003, you spoke at a law school class about some of the legal issues that have arisen since 9/11. you started your remarks with a moving description of how americans stood together in the days after those horrific events and how people from small midwestern towns and people from new york city found their common threads as americans, you said. as you said in that speech, while it's hard to imagine that something positive could ever result from such a tragedy, that

there was a sense in those early days of coming together as one community, that we would all help each other get through this and it was, of course, something that none of us had ever experienced before and something i have often discussed as well, but i have to also say in the weeks and months that followed, i was gravely disappointed that the events of that awful day, the events that had brought us so close together as one nation, were sometimes used, judge, to justify policies that departed so far from what america stands for. i'm going to ask you some questions that i asked now chief justice roberts at his hearing. did that day, 9/11, change your view of the importance of individual rights and civil liberties and how they can be protected? >> september 11th was a horrific tragedy. for all of the victims of that tragedy and for the nation.

i was in new york, my home is very close to the world trade center. i spent days not being able to drive a car into my neighborhood because my neighborhood was used as a staging area for emergency trucks. the issue of the country's safety and the consequences of that great tragedy are the subject of continuing discussion among not just senators, but the whole nation. in the end, the constitution by its terms protects certain individual rights. that protection is often back

specific. many of its terms are broad. what's an unusual search and seizure, what are other questions that are fact-specific. but in answer to your specific question, did it change my view of the constitution, no, sir. the constitution is a timeless document. it was intended to guide us through decades, generation after generation, to everything that would develop in our country. it has protected us as a nation. it has inspired our survival. that doesn't change. >> i appreciate that answer, judge. are there any elements of the government's response to september 11th that you think maybe 50 or 60 years from now, we as a nation will look back on with some regret? >> i'm a historian by undergraduate training. i also love history books. it's amazing how difficult it is

to make judgments about one's current position. that's because history permits us to look back and to examine the actual consequences that have arisen and then judgments are made. as a judge today, all i can do, because i'm not part of the legislative branch, it's the legislative branch who has the responsibility to make laws consistent with that branch's view of constitutional requirements and its powers, it's up to the president to take his action and then it's up to the court to just examine each situation as it arises. >> i can understand some hesitance on this but the truth is that courts are already dealing with these very issues. the supreme court itself is now

struck down a number of post-9/11 policies and you yourself sat on a panel that struck down one aspect of a national security letter statute that were expanded by the patriot act. so i would like to hear your thoughts a bit on whether you see any common themes or important lessons in the court's decisions in rasul, hamdi hamden, what is your general understanding of that line of cases? >> that the court is doing its task as judges. it's looking in each of those cases at what the actions are of either the military and what congress has done or not done, and applied constitutional review to those actions. >> is it fair to say given that line of cases that we can say that at least as regards the supreme court, it believes mistakes were made with regard to the post-9/11 policies? in each of those cases, there

was an overturning of a decision either by the congress or the executive. >> i smiled only because that's not the way that judges look at that issue. we don't decide whether mistakes were made. we look at whether action was consistent with constitutional limitations or statutory limitations. >> in each of those cases there was a problem with either constitutional violation or a problem with the congressional action, right? >> yes. >> that's fine. as i'm sure you're aware, many of us on the committee discussed at length with the prior supreme court nominees the framework for evaluating the scope of executive power, the national security context. you already discussed this at some length with senator feinstein, in the youngstone case and i and others on the committee are deeply concerned about the very broad assertion of executive power that's been made in recent years and

interpretation that is been used to authorize the violation of clear statutory prohibitions from the foreign intelligence surveillance act to the anti-torture statute. you discussed with senator feinstein the third category, the lowest ebb category in the youngstone framework. that's where as justice jackson said, the president's power's at its lowest ebb because congress has, as you well explained it, specifically prohibited some action. i take the point of careful scholars who argue that hypothetically speaking, congress could conceivably pass a law that is plainly unconstitutional, for example, if congress passed a law that said that somebody other than the president would be the commander in chief of a particular armed conflict and not subject to presidential direction, presumably that would be out of bounds. but setting aside such abstract hypotheticals, as far as i'm aware, i'm pretty sure this is accurate, supreme court has never relied on the youngstone framework to conclude the president may violate a clear statutory prohibition. in fact, in youngstown itself,

the court rejected president truman's plan to seize the steel mills. is that your understanding of the supreme court precedent in this area? >> i haven't had cases or sufficient number of cases in this area to say that i can remember every supreme court decision on a question related to this topic. as you know, in the youngstown case, the court held the president had not acted within his powers in seizing the steel mills in the particular situation existing before him at the time. but the question or the framework doesn't change, which is each situation would have to be looked at individually because you can't determine ahead of time with hypotheticals

what a potential constitutional conclusion will be. i may have said toúc@epepep% gag you in a previous discussion, academic discussions are just that. it's presenting the extremes of every issue and attempting to debate on that extreme of a legal question how should the judge have ruled? >> i'll concede that point. given your tremendous preparation and knowledge of lawsuit i'm pretty sure you would have run into an example of where this had happened. i am a -- unaware of something that was justified under the president's power but that's not a question of a hypothetical, that's a factual question about what the history of the case law was. >> i can only accept

yoursumption. as i said, i have not had sufficient cases to have looked at what i know in light of that particular question that you're posing. legal counsel at the department of justice issued two memoranda considering the legal limits on interrogation of terrorism detainees. one of these contained a detailed legal analysis of the criminal law prohibiting torture, it concluded among other things that enforcement of the anti-torture statute would be an unconstitutional infringement on the president's commander in chief authority. judge, that memo did not once cite to the youngstown case or to justice jackson's opinion in youngstown. we just learned on friday in a new inspector general report that a november 2001 olc memo providing the legal basis for the so-called terrorist surveillance program also did not cite youngstown. now, i don't think you would have to be familiar with those memos to answer my question. does it strike you as odd that a complex legal analysis of the

anti-torture statute or the fisa act that considers whether the president could violate those statutes would not even mention the youngstown case? >> i have never been an advisor to a president. that's not a function i have served so i don't want to comment on what was done or not done by those advisorsn that case and it's likely that some question, and i know some are pending before the court in one existing case, so i can't comment. all i can comment on whether that's surprising or not. i can only tell you that i would be surprised if a court didn't consider the youngstown framework that case's framework is how these issues are generally approached. >> good. i appreciate that answer. let me go to a topic that two

senators discussed with you at some length, the second amendment. i believe the second amendment grants individuals to own firearms and i was elated that the court corrected a mistake. the question of whether second amendment rights are incorporated in the 14th amendment's due process of law and therefore applicable to the states and therefore was decided in heller. a decision in 1986 said this held only for the federal government. in my view it is unremarkable that as a circuit court judge in the maloney case, you would follow applicable supreme court precedent that directly controlled the case rather than apply your own guess at where the court maybe headed after heller. i think that would be an unfair criticism of a case that i think you needed to rule that way, given the state of the law. but let me move on from that,

because many of my constituents would like to know more about how you would make such a decision as a member of the highest court. i want to follow up on that. first of all, am i right that if you're confirmed, and the court grants cert in the maloney case, you would have to recuse yourself from its consideration? >> yes, sir. my own judgment is that it would seem odd indeed if any justice would sit in review of a decision that they authored. i would think that the judicial code of ethics that govern recusals would suggest and command that that would be inappropriate. >> fair enough. what about if one of the other pending appeals comes to the court such as the seventh circuit decision in nra versus chicago which took the same position as your decision in maloney, would you have to recuse yourself from that one as well? >> there are many cases in which a justice, i understand, has

decided cases as a circuit court judge that are not the subject of review. that raised issues that the supreme court looks at later. what i would do in this situation, i would look at the practices of the justices to determine whether or not that would counsel to recuse myself. i would just know that many legal issues, once they come before the court, present a different series of questions than the one addresses at the circuit court. >> let's assume you were able to sit on one of these cases or a future case that deals with this issue of incorporating the right to bear arms. as applied to the states. how would you assess whether the second amendment or any other amendment that is not yet been incorporated through the 14th amendment should be made applicable to the states? what's the test the supreme court should apply? >> that

>> so to the extent that the supreme court has not addressed this question yet, and a strong likelihood that it may in the future, i can't tell you that i've prejudged the case and say this is how i would approach it. >> what is the general principal? >> one must remember that the supreme court's analysis in its prior precedent predated its principles or the development of cases discussing the incorporation dock trait. those are newer cases. and so the framework established in those cases may well inforth -- as i said, i am hesitant of prejudging and saying they will or won't because that is going to be what the parties are arguing in the litigation. >> go ahead. >> i was just suggesting that i do recognize that the court's more recent injures prudence in

corporation with respect to other amendments has been more recent, and those cases as well as other things will inform the court's decision on how it looks at a new challenge to a state regulation. >> and of course it is true that despite that trend that you just described, that the supreme court has not incorporated several constitutional amendments as against the states, but most of those are covered by constitutional provisions in state constitutions and it is supreme court refused to incorporate the constitutional protections that date back nearly a century. after heller, does not it seem almost nephew inevitable that it will find the individual right to bear arms to be fundamental, which is a word we have been talking about.

after all, justice scalia's opinion said this. the right to bear arms was fundamental for subjects. blackistone constituted. cited one of the rights of englishmen. it was the natural right of resist annuals and self preservation, the right of having and using arms for self preservation and defense. >> as i said earlier, you are an eloquent advocate, but what the supreme court will do and what is inevitable to come up before it is justices in the future. so i feel i am treading the line of answering a question about what the court will do in a case that may likely come before it in the future. >> let me try it in a less lofty way then. you talked about none chucks before. >> ok. >> that is an easier kind of

case. but what heller was about was that there was a law here in d.c. that said you couldn't have a handgun. if you wanted to have it in your house to protect yourself. it is now protected under the constitution that the citizens of the district of columbia can have a handgun. what happens if we don't incorporate? say we didn't have a constitutional provision in wisconsin. we didn't have one until the 1980's, until i and or senators proposed to have it. isn't there a danger here that if you don't have this incorporated that you would have the results that d.c. would have the right to have a handgun, but the people of wisconsin might not have that right. does that make it almost inevitable that you would have to apply this to the states. >> it is a question the court will have to consider, and its meaning. >> i appreciate your patience. >> senator, the supreme court

did hold that there is in the second amendment an individual right to bear arms. that is its holding and the court's decision. i fully accept that, and in whatever new cases come before that don't involve incorporation as a second circuit judge, i would have to consider those issues in the context of a particular state regulation of firearms. >> i accept that answer and move on to another area of what i like to call secret law. that is the development of controlling legal authority that has direct effects on the rights of americans but is done entirely in secret. there are two strong examples of that. first, the finch everyone sic court issues rulings of the fisa act that have been kept from the public.

members had been called upon to vote on statutory changes without knowing how the court had interpreted communisting statutes. the counsel issues legal opinions that are binding on the executive branch but are also often kept from the public and congress. i understand that these legal documents may sometimes contain classified operational details that would need to be redacted. but i am concerned that the meaning of a lou like fisa could develop entirely in secret. i think it flies in the face of our traditional notion of an open and trance parent american legal system. does this concern you at all? you can say something about the importance of the law itself being public? >> well, the question for a judge, the way a judge would look at it, is to examine first what policy choices congress is

making in its legislation. it is important to remember that some of the issues that you are addressing were part of congressional legislation as to how fisa would operate. as you said, there have been amendments subsequent to that. and so a court would start with what congress has done and whether the acts of the other branch of government is consistent with that or not. the issue of whether and how a particular document would affect national security or affect questions of that nature would have to be looked at with respect to an individual case. as i understand it, there are review processes in the fiza

procedure. i am not a member of that court, so i am not intimately familiar with those procedures, but i know this is part of the review process there in part. and so when you ask concern, there is always some attention paid to the issue of the public reviewing or looking at the actions that a court is taking. but that also is tempered with the fact that there are situations in which complete openness can't be had for a variety of different reasons. and so courts -- i did as a district court judge, and i have as a circuit court judge looked at situations whether a

jury would have to be empaneled anonymously. in those situations we do consider the need for public actions, but we also consider that there may be in some individual situations potential threats to the safety of jurors that require and anonymous jury. i am attempting to speak about this -- always a question of balance. you have to look at first what congress says it. >> the concerns you just raised, don't they have to do more with the facts to be revealed than the legal basis? it is sort of hard for me to imagine a threat to national security by revealing properly retacked documents referring simply to the legal basis for something. isn't there a distinction between those two things? >> it is difficult to speak from the abstract. in large measure, just as i

have explained, i have never been a part of the fiza court, and so i have never had the experience of reviewing what those documents are and whether the -- they in fact can be redacted or not without creating risk to national security. one has to think about what explanations the government has. there are so many issues the court would have to look at. >> let me go to something different. there has been this talk about the emhe peath in the context of your nomination, a judge's ability to feel empathy does not mean a judge should rule one way or another as you well explained. but i agree with president obama that it is a good thing for our country for judges to understand it is real word implications of their decisions. judge, your background is remarkable. as you explained yesterday. your parents came to new york from puerto rico during world war r, and after your father died, your mother raised you

alone. your are a life-long new yorker and a yankee fan. but many of my constituents live in rural area and small towns, and they root for the brures and the packers. some might think you don't have a lot in common with them. what can you tell me about your ability as a judge to empathize with them, to understand the every day challenges of rural and small-town america and how supreme court decisions might affect their lives? small town american and how a supreme court decision might affect their lives. >> yes, i live in new york city and it is a little different than other parts of the country. but i spend a lot of time in other parts of the country. i've visited a lot of states. i've stayed with people who do all types of work. i've visited and vacationed on

farms. i've lived and vacationed in mountain tops. i've lived and vacationed in all sorts -- not lived. i'm using the wrong word. i've visited all sorts of places. in fact, one of my habits is when i travel somewhere new i try to find a friend to stay with them. it's not because i can't afford a hotel. usually the people inviting me would be willing to pay, but because i do think it's important to know more than what i live. and to try to stay connected to people and to different experiences. i don't think that one needs to live an experience without appreciating it. listening to it, watching it, reading about it. all of those things,

experiencing it for a period of time help judges in appreciating the concerns of other experiences that they don't personally. and as i said, i try very, very hard to ensure that in my life i introduce as much experience with other people's lyes as i can. >> i want to talk about wartime supreme court decisions like cora matsu versus the united states decision in which the supreme court upheld a policy to round up and detain japanese-americans in world war ii. it seems inconceivable that the u.s. government would have decided to put citizens based on their race and the supreme court allowed that to happen.

i asked chief justice roberts about this. i'll ask you about this as well. do you think cora matsu was wrongly decided? >> it was, sir. >> do you think people should resist the wor time fears that likely played a role in the 1944 decision? >> a judge should never rule from fear. a judge should rule from law and the constitution. it's inconceivable to me today that a decision permitting the detention, arrest of an individual solely on the basis of their race would be considered appropriate by our government. >> some of the great justices in the history of our country were involved in that decision. how does a judge resist those kind of fears? >> one hopes by having the

wisdom of a harl em and a plesy. our constitution has held us in good stead for over 200 years and our survival depends on upholding it. >> thank you, judge. . >> thank you very much, senator feingold. i was going to go senator kyl, senator schumer and then we'll take a break. senator kyl? >> thank you. could i return briefly to a series of questions that senator feingold asked at the very beginning relating to the meloni decision, relating to the second amendment. >> sure. good afternoon, by the way.

>> good afternoon. you said if that case went before the court you would recuse yourself from participating in the decision. >> in that case, yes. >> you're aware, there are two other decisions, both dealing with the same issue of incorporation, one in the ninth circuit and one in the seventh circuit. the seventh circuit decided the case similarly to your circuit. the ninth circuit has decided it differently although that case is on rehearing. if the court should take all three -- let's assume the ninth circuit stays with its decision so you do have the conflict among the circuits. and the court were to take all three decisions at the same time, i take it the recusal issue would be the same? you would recuse yourself in that situation? >> i haven't actually been responding to that question. i think you're right for posing it. i clearly understand that recusing myself from meloni would be appropriate.

the impact of a joint would indicate i would have to make the same decision. but it's left to the discretion of the justices because their participation in cases is so important. it is something that i would s discuss with my colleagues and follow their practices with respect to a question like this. >> i appreciate that. and i agree with your reading of it. the law, 28 usc section 455 provides among other things, any judge, magistrate judge of the united states shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. and that raises the judge's desire to consult with others and ensure that impartiality is not questioned by participating

in a decision. i would think, eni would want your responses. i would think that there would be no difference if the meloni case is denieded on its own or it's decided as one of two or three other cases, all considered by the court at the same time. >> that was different than the question posed earlier. >> will you not make a commitment entitlement? >> it's impossible to say. i will recuse myself in any case involving meloni. how any other argument or decision is presented i would have to see what happens. >> your circuit is not involved or the court takes either the seventh or ninth circuit and decides the question in corporation of the second amendment, i gather that in subsequent decisions you would consider yourself bound by that precedent or you would consider that to be the decision of the

court on the incorporation question? >> the decision in helder recognized the right to bear arms as applied to the federal government. >> that was the matter before your circuit. and as a result of the fact that the court decided poet of the other court cases and resolved that issue so the same matter would be before the court, would it not make sense for you to indicate should that same matter come before the court and you're on the court that you would necessarily recuse yourself from its consideration? >> i didn't quite follow the start of your question. i want to answer precisely but i not quite sure -- >> you agreed with me if the court considered either the seventh or ninth circuit or both

decisions and decided the decision of incorporated the second amendment to make it applicable to the states you would consider that binding precedence of the court. that, of course, was the issue in meloni, wouldn't you have to refuse yourself if either case came to the court? >> i indicated clearly the statute would reach meloni. how i respond to the 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 >> no, sir. i wouldn't approach the issue of judging in the way the president does. he has to explain what he meant by judging. i can only explain what i think judges should do, which is -- judges can't rely on what is in their heart. they don't determine the law. congress makes the laws. the job of a judge is to apply the law.

so it is not the heart that compels conclusions in cases. it is 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 has been, and every lawyer no matter how good their quality of advocacy, that in every case, every lawyer has had a legal argument of some quality to make, some precedent that he cited? 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. but 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? >> well, i have actually had lawyers say something very similar to that.

[laughter] i have had lawyers where questions have been raised about the legal basis of his argument. i had one lawyer throw up his hands and say but it is just not right. "butts just not right" is not what judges consider. >> you have always been able to find a legal basis for every decision that you have rendered as a judge? ende 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 wi 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 that they made a big difference in discrimination cases bt took a long time to understand -- it takes time and effort. in short, i accept the proposition that difference will be made by the presence of women and people of color on bench and my experiences will affect the facts that i choose to see. i don't know exactly what the difference will be in my judging but i accept that there will be some based on jegender in my latina heritage. 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 al allucidation in speech and then this article. it would lead someone to the 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. >> 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 >> it's the experience that your committee looks for in terms of what is the background of the judge? have they undertaken serious consideration of constitutional

questions? all of those experiences are valued because your system is enriched by a variety of experiences. and i don't think that anybody quarrels with the fact that diversity on the bench is good for america. it's good for america because we are the land of opportunity. and to the extent that we are pursuing and showing that all groups can be lawyers and judges, that is just reflecting the values of our society. >> if i can't interrupt you right now, that is the key. it is good because it shows these young people you are talking to, that with a little hard work, it doesn't matter where you come from, you can make it. and that is why you hope to see them on the bench. i totally appreciate that. the question, though, is whether you leave them with the impression whether it is good to make different decisions

because of their ethnicity or gender. blind lady justice doesn't permit us to make those kinds of decisions. i found one oblique reference in your speeches that could be said you warned against that. all of the other statements seemed to embrace it, or certainly to recognize it and seem if you are powerless to do anything about it. i accept this will happen. while i appreciate what you are saying, it still doesn't answer to me the question of whether you think that these -- that ethnicity or gender should be making a difference? >> there are two different, i believe, issues to address and to look at, because various statements are being looked at and being tied together. but the speech as it is

structured didn't intend to do that and didn't do that. much of the speech about what 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, studies. they were suggesting that there could be a difference. they were raising reasons why. i was inviting the students to think about that question. most of the quotes that you had and referenced is say that. we have to ask this question. does it make a difference, and how. and the study of consequence and outcomes was about that. there was a case in which three women judges wednesday one way and two men the other, but i

didn't suggest that was driven by their gender. 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 this case. i was just talking about the academic question that one should ask. >> if i could interrupt, i think you just contradicted your speech. 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 don't want to be misunderstood here as disagreeing with a general look into the question of whether people's gender, 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 a case here for that

proposition. neither you nor i know for sure that was the reason, but one could infer it from the decision that was rendered. and then you cite two other studies. i am not questioning whether the studies are valuable. i would agree it is important for us to know these things so that we are on guard to set aside prejudices that we may not even know we have. when you do judge a case -- let me go back in time. 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 fñoírjc. >> 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 >> my problem, quite frankly, senator schumer said the cases you have been involved in are left of center, not anything that jumps out at me, but the speeches really do. the speech you gave to the aclu you gave about foreign law was

pretty disturbing. we keep talking about these speeches -- and i listened to you today, and i think i am listening to judge roberts. i am listening to a strict constructionist here. we have to reconcile in our minds here to puts the puzzle together, is that you have 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 are that generally speaking, left of center but in the mainstream. and then you have these speeches that blow me away. don't become a speech writer if the law thing doesn't work out because these speeches really throw a wrinkle into everything. that is what we are trying to figure out. who are we getting here? who are we getting as a nation?

now, legal realism -- are you fax 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. it looks at the law -- >> kind of touchy-feeley stuff. >> not quite words that i would use because there are many academics and judges who have talked about being legal realists. but i don't apply that label to myself at all. as i said, i look at law and precedent and deserve its principles and apply it to the situation. >> so you would not be a disciple of the legal realism school? >> no. >> would you be considered a strict constructionist in your own mind? >> i don't use labels to

describe what i do. there has 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 renquist 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 -- >> what does strict constructionism mean to you? well, it means that you look at the constitution as it is 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. >> what is an originalist? >> in my understanding, an

originalist is someone who looks at what the founding fathers intended and what it is situation confronting 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 living, breathing, evolving document? >> the constitution is a document that is immuteable to the sense that it has lasted 200 years. the constitution has not changed except by amendment. it is 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 says. what changes is society. what changes is what facts a

judge may get presented. >> what is the best way for society to change, generally speaking? what is the most legitimate way for society to change? >> i don't know if i can use the words change. society changes because there has been new developments in technology, medicine, in society growing. >> 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 am sorry? >> 40. i'm sor. do you ring roev wade changed society? >> it looked at the constitution and decided that the constitution as applied to a claimed right applied.

>> is there anything in the constitution that says a state legislator or the congress cannot regulate abortion or the definition of life in the first time sister? >> the holding of the court -- r >> is it the constitution as written prohibit a bode at the state or legistlative level from protecting the rights of the unborn in the first trimester? >> the constitution and 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