on all as it exists -- based on the law as it exists. that is what i take with me as a trial judge, an appellate judge, the respect that each case gets decided case by case, applying the law as it exists to the facts before you. you asked me a second question about the tarzan murder case, and that case brought to life for me in a way that perhaps no other case had fully done before the tragic consequences of needless death. in that case, mr. maddox was dug the tarzan murderer by the press because he used acrobatic feats to gain entry into

apartments. in one case, he took a rope, placed it on a pipe on top of a roof, and threw it into a window in a building below and broke the window. . 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. shot a person he found. he did that 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 futur future. >> you had precedence to determine the outcome you had to come up with. is that correct? >> absolutely. >> and if today now the supreme court has changed their decision without you having to relitigate the case it would lay open a different result. they would be bound by the new decision. is that correct? >> absolutely, sir. that is now the statement of the

supreme court of how employers and the court should examine the issue. >> during the course of this nomination there have been some unfortunate comments including outrageous charges of racism made about you on radio and television. one person reported you as the equivalent of the head of the u 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 , tell us what is going on here.

>> thank you for giving me an opportunity to explain my remarks. but no words that i have ever spoken or written have received so much attention. [laughter] i gave a variant of my speech to a variety of different groups. most often, to groups of women lawyers or to groups of, most particularly, young latino leaders and students. as my speech made clear, i was trying to inspire them to believe that their life experiences when it reached the legal system because different life experiences and backgrounds always do. i do not think that there is a quarrel with that in our society.

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 seiment 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 wt 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 that suggests a judge's backgrounds and experiences can and should and naturally will impact their decision, which i think goes against the american ideal and oath that a judge takes to be fair to every party and every day when they put on that road robe, that's a symbol to put

aside their pempbs preferences. it's not just one senate. as my chairman suggested that caused the difficulty. it's a body of thought over a period of years that causes difficulty. and i would say the suggestion is not exactly wise. you said i think six different times, "i would hope that a wise latina woman with the richness 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@@@@@@@@@ á1@ @ >> was not talking about the policy reflected in the law that congress makes, that is the job of congress to decide what the policy should be for society. in that conversation with the students, i was focusing on what district court judges do and what circuit court judges do. i noted that district court judges find the facts and they apply the facts to the individual case and when they do that, they are holding their findings and do not by anybody else. the appellate judges establish precedents. hey decide what the law says

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 permitted 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 conclusion and she believes that's possible. you then argued that you don't think it's possible in all, maybe even most cases. you deal with the famous quote of justice o'connor in which a wise old man should reach the same decision as a wise old woman. you say you don't think that's necessarily accurate. and you doubt the able to be objective in your analysis. it may not be possible in all or most cases with your oath that you've taken twice which requires impartiality? >> my friend judge sedeband is

here this afternoon. we are good friends. i believe that we both approach judging in the same way, km is looking at the facts of each individual case and applying the law to those facts. i also as i explained was using a rhetorical. i know he couldn't have 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. if you sit on the supreme court,

then it will, on a lower court, be subject to review. with regard to how you approach law and your personal experiences, let's look at the new haven firefighters case. in that case, the city of new haven told firefighters that they would take an exam, set forth the process for it, that would determine who would be eligible for promotion. the city said the -- spent a good time of money and time on the exam to make it a fair and to serve as a supervisor requirement. it required the responsibility to send their firemen into a dangerous building. and they had a panel and they did oral exams. it was not all written. it consisted of one hispanic and

one african-american and one white. according to the supreme court, this is what the supreme court held. the new haven officials were careful to insure broad racial participation in the design of the tests and its administration. 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, unusual that one of the judges had to panel the decision. your vote made the majority not to rehear it. i know there's concern on both sides of the issue. we should do it carefully and

correctly. do you think of the claims to dismiss the arguments and concerns were appropriately understood and acknowledged by such a short opinion from the court? >> we were. >> very sympathetic in expressing our sympathy to the firefighters who challenged the city's decision. mr. ricci and the others. we understood the efforts they had made in taking the test. we said ad much. they did have before them a 78-page thorough opinion by the district court. they oefbl disagreed with the 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 . . $"grrrá@ @ @ @ @ @ @ @ @ @ @ @ü i put in congressional research analyzing and found that you consistently deal with the law and aa past presidents. you put in that the found this a solidly in the mainstream and then another analysis of more 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 supreme 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 another case, the court determined that another fixed use of race that didn't consider the individual was inappropriate and it shut down the undergraduate admissions policy. that is what the court has said about the educational use of race in a narrow way. the question is i indicated of

whether that should apply in other contexts has not been looked at by the supreme court direct directly. the holdings of that case has not been applied or 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 consider those actions were constitutional or not. >> many critics saw the bush v. gore decision 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.@@@@@@@ @ @ @ @ @ @ @ @ @r

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 know that

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 th 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 overturned a 97-year-old precedent that held that vertical price fixing no longer automatically violated antitrust law. in effect, this means that a manufacturer is now free to set minimum prices at retail for its products and thereby to prohibit discounting of its products. what do you think of this decision? do you think it was appropriate for the supreme court by judicial fiat to overturn a

nearry century-old decision on the meeting of this sherman act that businesses and consumers had come to rely on and which should have been never altered by congress. those two things, antitrust. >> i cannot speak, senator, to whether leggins was right or wrong. it is now the established law of the court. that case, in large measure centered around the justices. different views of the effects of star ry dicis. on a question that none of them seemed to dispute that there were a basis 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 n%%@ @ @ @ @ @ @ @ @ @ @ @ @ @ á 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

further the applicability of that case. >> thank you, mr. chairman. >> thank you, senator grassley. senator 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 americans 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. th'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 to an earlier question academic discussion is just that. it's presenting the extremes of every issue and attempting to debate about on that extreme of a legal question, how should the judge rule. >> i'll concede that point, judge. given your tremendous knowledge of the law and your preparation, i'm pretty sure you would have run into any example of where this had happened. i just want to know, i am unaware and is anybody aware of an example where something was justified under the president's power under the lowest ebb, i would love to know about it. i think that's not a question of a hypothetical. that's a factual question about what the history of the case law is. >> i can only accept your assumption. 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. >> in august 2002, the office of 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 advisors in 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 in a decision involving this question because it is that case's framework is how these issues are generally approached. >> good. i appreciate that answer. let me go to a topic that senator leahy and senator hatch

discussed with you at some length, the second amendment. i believe the second amendment grants citizens an individual right to own firearms and frankly, he was elated when the court ruled in heller last year basically what i think had been a mistake all along, did not recognize it is an individual right. the qut%&r

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's always the issue that litigants are arguing in litigation. so to the extent that the

supreme court has not addressed this question yet, and there's a strong likelihood it may in the future, i can't say to you that i prejudged the case and decided this is exactly how i'm going to approach it. >> but what would be the general test for incorporation? what is the general principle? >> one must remember that the supreme court's analysis in its prior precedent predated its principles or the development of cases discussing the incorporation doctrine. those are newer cases. and so the framework established in those cases may well inform -- as i said, i'm hesitant to prejudge it in saying they will or won't, because that will be what the parties are going to be arguing in the litigation. but it is -- i'm sorry. >> no, go ahead. >> i was just suggesting that i do recognize that the court's

more recent jurisprudence in incorporation with respect to other amendments has been more recent and those cases as well as stare decisis and a lot of other things will inform the court's decision on how it looks at a new challenge to a state regulation. >> of course, it is true that despite that trend you just described, the supreme court has not incorporated several constitutional amendments as against the states but most of those are covered by constitutional provisions and state constitutions and the supreme court decisions that refuse to incorporate the federal constitutional protections like the case involving the second amendment, 19th century case, date back nearly a century. so after heller, doesn't it seem almost inevitable that when the supreme court does again consider whether the second amendment applies to the states, that it will find the individual rights to bear arms to be fundamental, which is a word that we have been talking about

today? after all, justice scalia's opinion said this. by the time of the founding the right to bear arms had become fundamental for english subjects. blackstone, whose works we have said constituted the preeminent authority on english law for the founding generations, cited the arms provision bear arms was one of the fundmental rights. it was the natural right of resistance and self-preservations and the right of having and using arms for self-preservation and defense. >> as i said earlier, you're a very eloquent advocate, but a decision on what the supreme court will do and what's inevitable will come up before the justices in great likelihood in the future. and so i feel that i'm threading 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's try it in a less lofty way then. you talked about numchucks

before. that's an easier kind of case. but what helder 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 you should the constitution that the people of washington, d.c. can have a handgun. isn't there a danger here if you don't have this incorporate against the states we would have the result where is the citizens of d.c. have a constitutional right to have a handgun but the people of wisconsin might not have that right? doesn't that make it almost inevitable that you would have to apply this to the states? >> that's the question the court will have to consider. >> i appreciate your patience. >> and its meaning.

>> senator, the supreme court did hold there is in the second amendment an individual right to bear arms and that is as holding and that is the court's decision. i fully accept that. and in whatever new cases that come before me 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 or other instruments. >> i accept that answer and going to move on to another area that i like to call secret law. and that's controlling legal authority that has direct effects on the rights of americans done entirely in secret. there are two strong examples of that. first, the fisa court often issues rulings involving substantive interpretation of the fisa that with very few exceptions have been kept from the public and until a recent change in the law, many were not

available to the full congress either. meaning members had been called upon to vote on statutory changes without knowing how the court interpreted the statute. second, the legal department issues rulings binding but kept from the congress. these legal documents may sometimes contain classified operational details that would need to be redacted. but i'm concerned that fisa could develop entirely in secret. i think it flies in the face of our traditional notion of an open and transparent legal system. does this concern you at all. can you say a little bit about the importance of the law itself being public? >> well, the question far judge is -- a judge would look at it is to examine first what policy choices the 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. and as you just said, there's been amendments subsequent to that, and so a court would start with what congress has -- 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. and as i understand it, there are review processes in the fisa

procedure. i'm not a member of that court so i'm not intimately familiar with those procedures, but i know that this is a part of the review process there in part. and so when you ahave 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 in which judges

have to determine whether juries should be impanelled anonymously. and 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, the safety of jurors that require an anonymous jury. i'm attempting to speak about this as a -- always a question of balance. you have to look at first what congress says about that. >> but the concerns you raised, don't they have to do more with the facts that shouldn't be revealed than the legal basis? it's sort of hard for me to imagine a threat to national security by revealing properly redacted documents as simply referring to the legal basis for something. isn't there a distinction between those two things. >> it's difficult to speak from the abstract. in large measure, as i

explained, i'm never been a part of the fisa court, and so i've never had the experience of reviewing what those documents are and whether they, in fact, can be reacted or not. without creating risks to national security. one has to think about what explanations the government has. there's so many issues a court would have to look at. >> let me go to something completely different. there's a lot of talk about the concept of empathy. the judge's ability to feel empathy does not mean the judge should rule one way or the other, as you well explained. but i agree with president obama that it's important for our judges to understand the real-world implications of their decisions and seek to understand both sides of an issue. judge, your background is remarkable. as you explained yesterday, your parents came to new york from puerto rico and after your father died, your mother raised you on her own in a housing project in the south bronx.

you are a life-long new yorker and a yankee fan, as i understand it, but many americans don't live in big cities. many live in rural areas and small towns and they root for the brewers and the packers. some might think that 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 everyday challenges of rural and 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 sts 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, %@@@@@@(,@ @ @ @

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 crt 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 agree that the law only takes you the first 25 miles of the marathon and that last mile has to be decided by what's in the judge's heart? >> no,sir. i wouldn't approach the issue in judging the way the judge does. i can only explain what judges can do. judges can't rely on what's in their heart. they don't determine the law. congress makes the laws. the judge of the judge is to apply the law. and so it's not the heart that

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

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

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

question about the president. that in every case the judge is able to find a basis in@@@@@@@

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

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

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

you said i accept the proposition as professor resnick explains, to judge is an exercise of power and there is no objective stance, but only a series of perspectives. no neutrality, no escape from choice in judging, you said. i further accept that our experiences as women and people of color will in some way affect our decisions. now, you're deep into the argument here. you've agreed with resnick there is no objective stance, only a series of perspectives, no neutrality, which just as an aside is relativism run amuck. but then you say, what the professor's quote means to me is not all women or people of color or in all circumstances, but

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

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

big difference in discrimination cases but it 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 a lawyer for "x" number of years or it's the experience that your committee looks for in terms of what's the background of the judge? have they undertake serious

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

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

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

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

you cite two other@@@@@@@@

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 famil

>> okay. thank you, judge. i know it's been a long day and we'll try to keep it moving here. i think you are one senator away from me after taking a break. my problem, quite frankly, is that as senator schumer indicated, the cases that you've been involved in, to me, are left of center but not anything that jumps out at me, but the speeches really do. i mean, the speech you gave to the aclu about foreign law, we'll talk about that probably in the next round, was pretty disturbing. and i keep talking about these speeches because what i'm trying -- and i listen to you today. i think i'm listening to judge roberts. i mean, you know, i'm listening to a strict constructionist here. so we've got to reconcile in our own minds here to put the puzzle togetho with that last mind is that you've got judge sotomayor who has come a long

way and done a lot of things that every american should be proud of. you've got a judge who has been on a circuit court for a dozen years. some of the things trouble me that, generally speaking, left of center, but within the main stream, and you have these speeches that just blow me away. don't become a speechwriter if this law thing doesn't work out because these speeches really throw a wrinkle into everything. and that's what we're trying to figure out. who are we getting here. who are we getting as a nation? now legal realism, are you familiar with that term? >> i am. >> what does it mean for someone who may be watching the hearing? >> to me it means that you are guided in reaching decisions in law by the realism of the situation, of the -- it's less -- it looks at the law

through the -- >> kind of touchy-feely stuff. >> not quite words that i would use because there are many academics and judges who have talked about being legal realists. i don't apply that label to myself at all. as i said, i look at law and precedence and discern its principles and apply it to the situation. >> so you would not be a disciple of the legal realism school? >> no. >> all right. would you be considered a strict constructionist in your own mind? >> i don't use labels to describe what i do. there's been much discussion today about what various labels mean and don't mean. each person uses those labels and gives it their own sense. >> when judge rehnquist says he was a strict constructionist, did you know what he was talking

about? >> i think i understood what he was referencing, but his use is not how i go about looking at -- >> what does strict constructionism mean to you? >> well, it means you look at the constitution as it's written or statutes as they are written and you apply them exactly by the words. >> right. >> would you be an originalist? >> again, i don't use labels. and because -- >> what is an originalist? >> in my understanding, an originalist is someone who looks at what the founding fathers intended and what the situation 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 leaving,

breathing, evolving document? >> the constitution is a document that is immutable to the sense that it's lasted 200 years. the constitution has not changed except by amendments. it is a process -- an amendment process that is set forth in the document. it doesn't live other than to be timeless by the expression of what it said. what changes is society. what changes is what facts a judge may get. >> what's the best way for society to change generally speaking? what's the most legitimate way for society to change? >> i don't know if i can use the words changed. society changes because there's been new developments in

technology, medicine, in society growing. >> do you think judges -- do you think judges have changed society by some of the landmark decisions in the last 40 years? >> well, in the last few years? >> 40 years. >> i'm sorry you seed. >> 40, i'm sorry. 4-0. >> do you think roe v. wade changed american society? >> roe vs. wade looked at the constitution and decided that the constitution is applied to a claims right applied. >> anything in the constitution that says a state legislator of a congress cannot regulate aborti . holding of the court as -- >> i'm asking the constitution. does the constitution as written

prohibit a legislative body, at the state or federal level from defining life or regulating the rights of the unborn or protecting the rights of the unborn in the first trimester? >> the constitution in the 14th amendment has a -- >> is there anything in the document written about abortion? >> the word abortion is not used in the constitution, but the constitution does have a broad provision concerning a liberty provision under the due process. >> and that gets us to the speech speeches. that broad provision of the constitution has taken us from no written prohibition protecting the unborn, no written statement that you can't voluntarily pray in school and on and on and on.

and that's what drives us here, quite frankly. that's my concern. and when we talk about balls and strikes, maybe that's not the right way to talk about it, but a lot of us feel that the best way to change society is to go to the ballot box, elect someone and if they are not doing it right, get rid of them through the electoral process. and a lot of us are concerned from the left and the right, that unelected judges are very quick to change society in a way that's disturbing. can you understand how people may feel that way? >> certainly, sir. >> now let's talk about you. i like you, by the way, for whatever that matters. since i may vote for you that ought to matter to you. one thing that stood out about

your record is that when you look at the almanac of the federal judiciary, lawyers anonymously rate judges in terms of temperament. and here's what they said about you. she's a terror on the bench. she's temperamental, excitable. she seems angry. she's overly aggressive, not very judicial. she does not have a very good temperament. she abuses lawyers. she really lacks judicial temperament. she believes in an out-of-control -- she behaves in an out-of-control manner. she makes inappropriate outbursts. she is nafty to lawyers. she will attack lawyers for making an argument she does not like. she can be a bit of a bully. when you look at the evaluation of the judges on the second circuit, you stand out like a sore thumb. in terms of your temperament. what is your answer to these

criticisms? >> i do ask tough questions at oral arguments. >> are you the only one that asks tough questions at oral arguments? >> no, not@@@@@@@@@ @ @ @ @ @ @r

it's a term of art lawyers use. it means that they are peppered with questions. lots of lawyers who are unfamiliar with the process in the second circuit find that tough bench difficult and challenging. >> if i may interject, judge, they find you difficult and challenging more than your colleagues. and the only reason i mention this is it stands out. there are many positive things about you and these hearings are designed to talk about the good and the bad. and i never liked appearing before a judge that i thought was a bully. it's hard enough being a lawyer, having your client there to begin with without the judge just beating you up for no good reason. do you think you have a temperament problem? >> no, sir. i can only talk about what i

know about my relationship with the judges of my court and with the lawyers who appear regularly from our circuit. and i believe that my reputation is such that i ask the hard questions, but i do it evenly for both sides. >> in fairness to you, there are plenty of statements in the record in support of you as a person that do not go down this line. but i would just suggest to you for what it's worth as you go forward here that these statements about you are striking. they're not about your colleagues. the ten-minute rule applies to everybody. and that, you know, obviously, you've accomplished a lot in your life. but maybe these hearings are time for self-reflection. this is pretty tough stuff that you don't see from -- about other judges on the second

circuit. let's talk about the wise latina comment yet again. and the only reason i want to talk about it yet again is that i think what you said -- let me just put my vices on the table here. one of the things that i constantly say when i talk about the war on terror is that one of the missing ingredients in the mideast is the rule of law that senator schumer talked about. that the hope for the mideast, iraq and afghanistan is that there will be a courtroom one day that if you find yourself in that court it would be about what you allegedly did, not who you are. it won't be about whether you are a sunni shia, a kurd or a pashtun. it will be about what you did. and that's the hope of the world, really, that our legal system, even though we fail at times, will spread. and i hope one day that there will be more women serving in elected office and judicial offices in the mideast. i can tell you this from my point of view.

one of the biggest problems in iraq and afghanistan is the mother's voice is seldom heard about the fate of her children. and if you wanted to change iraq, apply the rule of law and have more women involved in having a say about iraq. and i believe that about afghanistan. inside i think that's true here. i think for a long time a lot of talented women were asked, can you type? and we're trying to get beyond that and improve as a nation. so when it comes to the idea that we should consciously try to include more people in the legal process and the judicial process, from different backgrounds, count me in. but your speeches don't really say that to me. along the lines of what senator kyl was saying, they kind of represent the idea. there's a day coming when there

will be more of us -- women and minorities -- and we're going to change the law. and what i hope we'll take away from this hearing is they need to be more women and minorities in the law to make a better america. and the law needs to be there for all of us, if and when we need it. and the one thing that i've tried to impress upon you through jokes and being serious is the consequences of these words. and the world in which we live in. we're talking about putting you on the supreme court and judging your fellow citizens. and one of the things that i need to be assured of is that you understand the world as it pretty much really is. i can't find the quote but i'll find it here in a moment.

the wise latina quote. do you remember it? >> yes. >> say it to me. can you recite it from memory? >> i got it. all right. i would hope that a wise latina woman with the richness of her experience would more often than not reach a better conclusion than a white male. and the only reason i keep talking about this is that i'm in politics. and you got to watch what you say because, one, you don't want to offend people you are trying to represent. but do you understand, ma'am,

that if i had said anything like that and my reasoning was that i'm trying to inspire somebody, they would have had my head. do you understand that? >> i do understand how those words could be taken that way, particularly if read in isolation. >> well, i don't know how else you could take that. lindsey graham said that i will make a better senator than x because of my experience as a caucasian male makes me better able to represent the people of south carolina and my opponent was a minority. it would make national news, and it should. having said that, i am not going to judge you by that one

statement. i just hope you'll appreciate the world in which we live in that you can say those things meaning to inspire somebody and still have a chance to get on the supreme court. others could not remotely come close to that statement inside survive. whether that's right or wrong, i think that's a fact. does that make sense to you? >> it does, and i would hope that we've come in america to the place where we can look at a statement that could be misunderstood and consider it in the context of the person's life. and the work they have done. >> if that comes of this hearing, the hearing has been worth it all. that some people deserve a second chance when they misspeak. and you would look at the entire life story to determine whether this is an aberration or just a

reflection of your real soul. if that comes from this hearing, then we've probably done the country some good. now let's talk about the times in which we live in. you're from new york. have you grown up in new york all your life? >> my entire life. >> what did september the 11th, 2001, mean to you? >> it was the most horrific experience of my personal life and the most horrific experience in imagining the pain of the families of victims of that tragedy. >> do you know anything about the group that planned this attack, who they are and what they believe? have you read anything about them? >> i follow the newspaper accounts. i've read some books in the

area, so i believe i have an understanding of that. >> what would a woman's life be in their world if they can control a government or a part of the world? what did they have in store for women? >> i understand that some of them have indicated that women are not equal to men. >> i think that's a very charitable statement. do you believe that we're at war? >> we are, sir. we have tens and thousands of soldiers in the battlefields of afghanistan and iraq. we are at war. >> are you familiar with military law much at all? and if you're not, that's okay. >> no, no, no. i'm thinking because i've never practiced in the area.

i've only read the supreme court decisions in this area. i've, obviously, examine d by referencing cases some of the procedures involved in military law. but i'm not personally familiar with military law. i haven't participated -- >> i understand. from what you've read and what you understand about the enemy that this country faces, do you believe there are people out there right now plotting our destruction? >> given the announcements of certain groups and the messages that have been sent with videotapes, et cetera, announcing that intent and the answer would be based on that? yes. >> under the law of armed conflict, and this is where i

may differ a bit with my colleagues, it is an international concept, the law of armed conflict. under the law of armed conflict, do you agree with the following statement -- that if a person is detained who is properly identified through accepted legal procedures under the law of armed conflict as a part of the enemy force, there is no requirement based on a length of time that they be returns to the battle or released. in other words if you capture a member of the enemy force, is it your understanding of the law that you have to at some period of time let them go back to the fight? >> it's difficult to answer that question in the abstract of the reason that i indicated later. i've not been a student of the

law of war other than to -- >> we'll have another round. i know you'll have a lot of things to do. but try to look at that. look at that general legal concept and the legal concept i'm expousing is that under the law of war, article five specifically of the geneva convention requires the detaining authority to allow an importiant decisionmaker to determine the question of status. whether or not your a member of thenemy force. and see if i'm right about the law that if that determination is properly had, there is no requirement under the law of armed conflict to release a member of the enemy force that still presents a threat. i'd like you to look at that. now let's talk about your time as a lawyer. the puerto rican legal defense fund is that right? is that the name of the organization? >> it was then. i think -- i know it has changed

names recently. >> okay. how long were you a member of that organization? >> nearly 12 years. >> okay. if not 12 years. >> during that time, you were involved in litigation matters. is that correct? >> the fund was involved in litigations. i was a board member of the fund. >> okay. are you familiar with the position that the fund took regarding taxpayer funded abortion? the brief they filed? >> no inever reviewed those briefs. >> in their brief they argued that if you deny a low-income woman medicaid funding, taxpayer funds to have an abortion, if you deny her that, that's a form of slavery. and i can get the quotes. do you agree with that? >> i wasn't aware of what was said in those briefs.

perhaps it might be helpful if i explain what the function of a board member is and what the function of the staff would be@ it wasn't the size like the naacp defense fund or mexican-american legal defense fund, which are organizations that undertook very similar work to support that. in an organization like that a board member's main responsibility is to fund raise. and i'm sure the minutes will show that is what we spend most of our time on. to the extent that we looked at the ohrganization's legal work t

was to ensure that it was consistent with the broad mission statement of the fund. >> if the mission statement of the fund, was it to include taxpayer-funded abortion? was that one of the goals. >> our mission statement was broad like the constitution, which meant that the focus was on promoting the equal opportunities of hispanics in the united states. >> well, judge, i will share these with you and we will talk about them more, but a host of briefs for a 12-year period where the fund is advocating to the state court and federal courts that to deny a woman taxpayer funds, low income woman taxpayer assistance it having abortion is a form of slavery, an unspeakal cruelty to the -- unspeakable cruelty to the life and health of a poor woman.

was it not the position of the fund to advocate taxpayer-funded abortions to a poor woman? >> i didn't as a board member review those briefs. our lawyers were charged did -- >> would it bother you if that is what they did? it bother you if that's what they did? >> well, i know that the funds during the years i was there was involved in public health issues as it affected the latino community. it was -- >> is abortion a public health issue? >> well, it was certainly viewed that way generally by a number of civil rights organizations. >> do you personally view it that way some. >> it wasn't a question of whether i personally viewed it that way or not. the issue was whether the law was settled on what issues the

fund was advocating on behalf of the community it represented. and so the question would become, was there a good-faith basis for whatever arguments they were making as the fund's lawyers were lawyers. they had an ethical obligation. >> and quite frankly lawyers are lawyers and people who have causes that they believe in have every right to pursue those causes. and the fund, when you look -- you may have been a board member, but i'm here to tell you that file brief constantly for the idea that taxpayer-funded abortion was necessary and to deny it would be a form of slavery challenged parental consent is being cruel and i can go down a list of issues that the fund got involved in that

the death penalty should be stricken because it is a form of racial discrimination. what's your view of the death penalty in terms of personally? >> the issue for me with respect to the death penalty is that the supreme court since breg has determined that the death penalty is constitutional under certain situations. >> right. >> i have rejected challenges to the federal law and its application in the one case i handled as a district court judge but it's a reflection of what my views are on the law. >> as an advocate, did you challenge the death penalty as being an inappropriate punishment because of the effect it has on race? >> i never litigated a death

penalty case personally. the fund -- >> did you ever sign a memorandum saying that? >> i signed the memorandum for the board to take under consideration what positions on behalf of the latino community the fund should take on new york state reinstating the death penalty in the state. it's hard to remember because so much time has passed. >> i want you to be aware of what i'm talking about. let me ask you this. we've got 30 seconds left. if a lawyer on the other side filed a brief in support of the idea that abortion is the unnecessary and unlawful taking of an innocent life and public money should never be used for

such a hain yeinous purpose, wo that disqualify them, in your opinion, from being a judge? >> advocate advocates on behalf of the client they have so that's a different situation than how a judge has acted in the cases before him or her. >> the only reason i mention this, judge, is that the positions you took or the fund took i think, like the speeches, tell us is [captions copyright national cable satellite corp. 2009] [captioning performed by national captioning institute]

tonight spend an hour with the "wall street journal" technology expert on "q&a." >> how is c-span funded? >> donations? >> taxpayer funded possibly? >> philanthropy. >> fund-raising? >> 30 years ago america's cable companies created it as a public service, a private business initiative. no government mandate. no government money. >> the nation's governors have

gathered this weekend for the annual meeting. this open iing recess has remar by a chinese official and his company's investments in infrastructure. you will hear discussion on freight transportation and a plan to direct money toward infrastructure production. >> this is an exciting time for all of us who have this important responsibility to our states and to the people we serve in difficult economic and fiscal environment. we will be talking about a lot of those issues over the next couple of days. we will get under way very shortly with our opening session. we are going to talk about infrastructure. we are going to make the presentation as we do each year to the distinguished service award winners and recognize their 15 and 20-year corporate fellows. first of all, may i have from my

colleagues a motion to adopt the rules of procedure for the annual meeting? moved and seconded. any discussion? all in favor say yaye. >> anyone who wants to present a new rule will require a three-fourth suspension vote. i want to welcome a new colleague at the annual meeting. governor jan brewer of arizona. jan, thank you for being with us. we are delighted to have you and we want to put you right to work, so at this time we will appoint the nominating committee who will make a recommendation to the plenary session on monday

for executive committee members and officers. i would like to appoint governor brewer. we want to help you with your presu resume. we've got a number of distinguished guests from outside the united states here. i mentioned the chinese delegation. we are also honored to have members of parliament from our nearest neighbor to the north, canada. we have represents atives of th u.s. arab chamber of commerce, head of the korean governors association from catalonia in spain and some former governors and we welcome them and thank them for being part of our annual meeting. [applause]

>> i want to recognize our distinguished host, someone who has provided tremendous leadership to the people of the great state of mississippi, who, along with his wonderful wife marcia, has worked tirelessly to prepare for this annual meeting of the association, our good friend and host governor healy barbour -- haley barbour. >> jim, thank you very much. i take no offense at that smart alec remark by you or governor mansion wearing his ear phones. we in mississippi and i literally speak for all mississippians, welcome the national governors association back. the last time we held this conference was in 1935, and

we've just had the opening news conference over in the sister city to biloxi of gulfport which is immediately to the west. and from the room in which we held the opening news conference you could see the mark hamm building which is it was held in 1935. it got about three stories of waterloo it when hurricane katrina hit here almost four years ago. several of you have mentioned to me that you had visited mississippi since the storm, and we are very proud of the progress that continues to be made. but we are not through. there is more to be done, but the strong, resilient, self-reliant people of south mississippi are up to the task. the coast is coming back bigger and better than ever and we are glad to have the chance to show it to you.

one reason is every one of our sister steps helped us after the storm. so many of you sent national guard, you sent law enforcement. we had 600,000 volunteers not from mississippi who came to volunteer during the first 12 months of the storm. they came from every state. jim, i will have to tell you, the first time that i realized how americans were pouring out their hearts for my state, on friday after the storm came in on monday, president bush was here and we went over to a feeding station, and at the feeding station it was so crowded and whenever the president would come i would usually try to get as far waway as i could because of the crowds. so i saw these seven guys standing under the edge and i went over to speak to them. turns out they were from vermont. they said yeah, we drove those

big tractor-trailors down there full of food. i said golly, that is so fantastic. then a little man named idaho w-- eddy who is older than i am now, said this is my third trip. it is spectacular what the people did, what the states did, what your citizens did, and we will never forget it. i want to thank you again for coming here. i have told everybody who was here last night that this is going to be a great conference. we have a lot of business to deal with, some serious issues to talk about and share ideas with solutions. but the other thing is we intend for you to have a good time. and if you don't have a good time, it is your fault. we are going to have a great show tonight of mississippi grammy winners who are coming in to play.

your spouses today are at the air force base where they are packing packages for our men and women overseas and their families. and paul overstreet, a sever several-time grammy winner, came over to play for the military families and our spouses. tomorrow morning will is going to be a gospel brunch. i don't care what religion you are or aren't. it is going to be fun. marty stewart, a several-time grammy winner and mississippian is going to entertain. he is incredibly talented. it will be a good way to start your day. so, come have a good time while you are here tonight, tomorrow night. mississippi is known as the hospitality state for a good reason and we want to show you that. i should tell you, this building was devastated by katrina.

we had water about 20 feet deep in the coliseum part. but then much of what you are seeing has been built since the storm. part of our recovery. so, we are very proud of it and we want you to enjoy it. and, with that, governor, let me s say, on behalf of all of mississippi, for every governor, welcome. we are glad to have you here. [applaus [applause] >> hailey, thanks so much. i think that it goes without saying all the american people are privileged to assist when other americans are facing the kind of adversity that mississippians an louisianans did a couple of years ago and we are glad we could help. thanks for putting this together. it is not a small task to raise

the resources necessary to organize the events to ensure that everything goes smoothly and haley and his staff are doing an outstanding job. unfortunately as all of you know the chairman of our association is unable to be here because of the fiscal and economic crisis in his home state. governor rendell is doing a great job leading our association. we will miss him. but he is here through the magic of telecommunications and we are going to start with a video message from our chairman and then invite him to offer some other remarks as we get into you're discussion on infrastructure this morning. chairman rendell. >> hello, everyone. let me begin by apologizing for not being with you today. we are in the midst of a budget crisis as a number of states are, and yesterday was the first payless pay day that our workers

under to undertook. by court order our workers have to work but we cannot pay them under the state constitution until we have a budget. eventually they will get paid for every minute they work but they are not getting paid right now and for some that live paycheck to paycheck that is difficult. and negotiations are somewhat heating up and i have to be around in harrisburg and couldn't leave. i apologize for not being with you, and particularly for jim who is going to take over a day or two earlier. let me say a word first about the organization. it has been an honor for me to serve as your chairman the past year and i think we have accomplished a lot moving the infrastructure agenda really under the radar screen of everybody in washington. i want to say also what a good organization this is. i think many of you are aware of the incredible work ray and the executive board and all of us did coming together in a bipartisan way and shaping the stimulus bill so it helped us protect our most immediate

needs, the influx of so many people on medicaid that we would have been swamped financially without the stimulus. we also got a significant portion of the stimulus dollars for infrastructure, not as much as i think we should have but our work in philadelphia in december with the president-elect and vice president-elect was very meaningful meaning f ful. it was meaningful because we came together in a bipartisan fashion. i don't know whether it has been reported to you but ray will report to you of the incredible work we did staving off the senate finance committee's proposal which would have required us to do bonding and many states would have needed a constitutional amendment to fund our increased share of medicaid under the health care proposal. the executive committee and healthcare task force headed by the governor got together on the phone with senator baucus and about a 20-minute conversation we turned senator baucus around

and he is a good man and very fair but once he makes up his mind he is hard to persuade otherwise. but we did it because we had republicans and democrats on the phone representing all areas of the country. it was a life saver. that would have been a game changer for us and a negative game changer. so, as your outgoing president let me say, stay involved with this organization. it does things that are so meaningful to protect us and help us accomplish the things we want to do for our people in a very meaningful way. thanks to all of you afor givin me the honor. it has been a pleasure working with you as chairman. i have one request, which leads that the plenary session and that is to adopt a proposal as a resolution, a proposal that i think is very important to the continuing battle to improve america's infrastructure. right now in washington there

are a lot of different things happening on infrastructure. the transportation bill the president has asked the senate and house to extend transportation funding and not to a new bill for 18 months. there is some opposition to that in the senate and house, but i believe the president's wishes will eventually prevail. but there needs to be stopgap legislation to do that. i have been an advocate of creating a national infrastructure bank, not to change the basic way funding is allocated for transportation, that will come through the existing formula or any chains in the formula that are made. but to have it for multi-state projects or ready to finance major national initiatives like high speed rail system. it would have independent funding and it would be awarded by a strict cost-benefit

analysis by experts, not by politicians, not determined by who has the most political clout but by what are the best projects which will have the most meaningful impact in rebuilding the country's infrastructure. we are not just talking about transportation but wastewater systems and so many different things. so we are going to ask for a resolution supporting the infrastructure bank. it is out of the ordinary scheme of doing things for the n.g.a. and for this reason we need a three-quarters vote of approval. and i'm asking you all to cast that vote on monday. the reason that it is important is because the obama administration has asked the congress in the continuing resolution that will continue to fund transportation funding until there is a new iced tea bill to create the infrastructure bank. it is not a democratic idea. both democrats and republicans support the bank. so, that is number one that we

want to support the administration's initiative. chairman oberstar in the house has put the infrastructure bank in his legislation and actually even allocated $2 billion for start-up funding for the bank. the bank can be a source of flexible funding, private funding, government funding, bonding, so many different things the bank can accomplish to give us the wherewithal to do major projects that we don't have in the current form will. so i'm asking all of you to support this on monday. it is moving fast. in addition to what the obama administration has done and what the chairman has done, congresswoman rosa de-lora from connecticut has put in legislation that would legislatively create the infrastructure bank. she is with us and she will be the lead speaker in the plenary or one of the speakers. she will talk about her legislation. she has been fighting for this.

she is not a johnny come lately to the infrastructure issue or the bank. she's been fighting for this for over a decade now and we support -- i strongly support her. she is a great advocate for the need to change the way we do infrastructure and infrastructure spending in this country. rosa, i'm truly sorry i'm not with you but i hope you have a chance to stay for a little bit of governor barbour's hospitality. belon biloxi a great town and governor barbour is a great host. i'm sorry i'm in the with you but when this video ends i'm going to participate in the first men nary session on -- men narrow -- plenary session by phone. let's push forward and pass the infrastructure bank motion on

monday. >> thanks for your hospitality at the centennial meeting last summer and the special meeting with the president-elect and vice president-elect. ed, are you there? >> yes, jim, i can hear you loud and clear and it was a pleasure working with you as well. >> thank you, ed, again and we are sorry you are not with us physically but we are glad you can participate and we are going to, as you suggest, jump right into our discussion of the importance of repairing and enhancing and improving our infrastructure system.

>> the challenges couldn't be greater. after a century of build-up our roads and bridges are in disrepair, water infrastructure hasn't kept pace and the electric grid is little different from the one envisioned by thomas edison more than a century ago. we face enormous cost to bring it in the 21st century. an estimated $2.2 trillion is needed the next five years. while the recent stimulus investments have helped us begin we have a long way to go. we are fortunate to have several distinguished speakers with us this morning to provide us with different perspectives an insight into how we can get it done. the vice governor joins us from china to share with us how they are transforming infrastructure on a massive scale. the chairman, president and chief executive for norfolk southern will focus on the important but often overlooked area of freight infrastructure and the contribution it makes.

then we will hear from congresswoman delora of connecticut to whom ed referred about the prospect of the national infrastructure bank that could provide much needed support. we will open the floor to your questions and i think it may make sense to do it after each individual presentation. first of all, the vice governor joins us from china's most populous professvince that is h to nearly 100 million residents. it is considered the cradle of chinese civilization. china is renown for one of the greatest achievements the great wall of china which was constructed beginning in the fifth century b.c. and stretches over 4,100 miles. it has been engaged in a massive infrastructure development effort. they have realized a robust economy depends on a robust

infrastructure and they have been investing on the order of 9% to 12% of g.d.p. in infrastructure in recent years. as part of the investments china is exploring the role of private investment to help design, build, operate and manage a 1 - 106-kilometer toll road which is part of a key passage from the northwest to the southeast coast. it is tackling many issues we face with respect to meeting the needs of urban and rural committees through new financing strategies. these public and private investments create a solid platform for global commerce. they are key to helping build bridges of a worldwide economic recovery. we will do simultaneous translation and at this point i would invite you to put your ear piece in and begin to listen to

the vice governor's presentation. what a pleasure to welcome you to the n.g.a. [applause] >> mr. chairman, ladies and gentlemen, i'm absolutely delighted to be able to come from the yellow river, which is the cradle of chinese civilization, to come to the gulf coast of the mississippi on the other side of the ocean. i'm honored to be able to represent the governor of the hunan province to this annual session of the n.g.a. i thank you all for the invitation to myself and my colleagues, and also for the great hospitality and considerate arrangements you have made for us. i look forward to having this

opportunity to exchange thoughts with my colleagues on infrastructure vment i have given you copies in english of my remarks and these are in the packs that you have. but i would like to take this opportunity to tell you very briefly something about hunan provin province, a bit of our history, our present and our future. we have a very long history. we are in central china, and we are located right where the cradle of chinese civilization is. based on universally accepted criteria, the people who first settled in hunan were among the first in all of east asia to enter the era of human civilization. the early dynasties of china were all in hunan province. for 5,000 years of history hunan

was the economic, political and cultural center for some 3,000 years and 20-plus dine iynastie up their capitals in hunan, and four of the eight most famous chinese capitals were in in hunan province. so this unique geography means that hunan is full of historical relics, we rank number one in china and above-ground relics we rank number two. the earliest written characters in china were in the afnyang ruins. we have the height of buddhist sculpture and these are part of the world heritage sites. many of you have heard of chinese martial arts. the world famous shao lin martial arts center it located

there. queen elizabeth, former president putin of russia and the president of the international olympics meeting all have fond memories of visiting the temple of martial arts and we hope that all of you have a chance to come to visit the shao lin temple and see it for yourselves. hichi boxing was found in hunan. it is famous for bid boilody bu. it has spread all over the world and is another bridge it our cultural exchanges. the hunan of today is growing sploefl. we have -- explosively. we have 167,000 square kilometers of land. we rank number one in china in production.

we are the biggest grain producer. we produce 1/10 of klinechina's grain. we have many types of ores. because we have such rich resources, we have a pretty complete industrial system. we produce chinese food products, nonferrous metals, energy, raw materials and equipment. also, we are in a very centrally located geographical location. our capital is the heart of the chinese railway system. we have 4,000 kilometers of railways and three northwest railways and three east-west railways. we are a hub of highways in china with 4,800 kilometers

which is tops in all of china. we have three civilian airports. the jungjho airport is one of the eight major regional hub airports in china. our province is almost 100 million. we are the most populous one in china. that means we have a lot of room for investment, consumption and market growth. in recent years, with the stepping up of industrialization and urbanization we have maintained a 13% growth rate. last your our g.d.p. reached $2$2 $280 billion in china. our industrial added value is fifth in china. therefore, we are beth very old and very young and very vigorous. now, what about hunan's future? we have very good potential because we have good conditions

and a good environment for development. since last year the international financial crisis has swept over the whole world and this has been the worst in the world economy since the great depression of the last century. in order to cope with these risks brought about by this economic downturn the chinese government has issued its own stimulus package of about half of this package going to improve the people's livelihood and for major infrastructure and environmental conservation. this is not only going to help china fight off the effects of the global crisis. it will stimulate domestic demand and stimulate the development of the economy. now, working together with the central government, provinces and cities in china are using infrastructure construction as a key project to drive our economic growth. this will be investment led.

last year our total social investment exceeded $2.5 trillion u.s. dollars. right now $600 billion is already in place and our overall economy is on the way to recovery. in order to fully utility ize t opportunity our province has pass passed various supportive policies including communications energy, subsistence housing, people's livelihood. so although this crisis has effected us to some extent, thanks to this investment-driven growth our g.d.p. in the second quarter will keep going at a 10% rate. ladies and gentlemen and friends, global experience tells us that economic development requires lots of investment to promote industrialization, urbanization and ingagricultura

modernization. with our population of almost 100 million every year as we accelerate urbanization 1.5 million to 1.7 million will move from rural areas to cities. in this process we must avoid the problems that have appeared in some developing countries where extreme poverty appears. this means we absolutely have to enhance investment in infrastructure and public service. we must provide apartments and housing, basic education, medicare, electricity, running water, public transportation, statement lots of -- at the same time lots of job opportunities so they have jobs and income. only then can they really enjoy the fruits of development. to do this our government has proposed a basic thought for our future infrastructure development. that is, we will be moderately advanced in levels. we will start from a starting point of sustaining and enhancing the economic and

social statement. but we have to tackle key areas and weak links to establish a modern infrastructure and basic industrial system to support our growth in a timely way. in communications, we plan to make civil aviation a priority. our airport will be a key hub. it will be a international aviation and cargo hub and have a annual passenger through-put of 60 million. rail is also important. for people and logistics. this has been a bottleneck in previous years. the next few years hunan will establish or rebuild 4,000 kilometers of track to have a total of 8,000 kilometers in operation. part will be high speed rail and we will have traffic between cities of rail transport exceeding 2,000 kilometers so that in one hour we will have one-hour travel time economic

circles covering the professor since with jungjho as the hub. in energy we will promote the development of scientific information and change away from traditional exploration. we want to focus more on nuclear, optical, wind and other forms of new and recyclable energy. we want a instructor that is clean, efficient, safer and reliable. in terms of urban infrastructure, we have to beef up electricity, water supply, heat and gas. particularly we have to build up rail systems like the metro and improve public service facilities which affect people's lively hoods. education, medical care, culture and sports. only then can we give comprehensive support to our development. in environmental protection, hunan will take the lead in china for building sewage and

trash processing facilities. by the end of 2027 every has been equipped with sewage and garbage treatment plants. in the next phase we will further invest and improve crucial drainage areas. we need to transform auld boilers and -- old boilers and kilns, reduce carbon emisses and thereby make a contribution to reducing the green house effect and cut back on global warming. right now hunan province has started investments in all of these areas and we are beginning to see results in some of them. but as a whole hunan professor relationships is still a developing province. our infrastructure and public service system of light rail, education, health, environment is still very inadequate when you compare it with the huge demand. so we need huge investment to

improve these systems. this huge investment will be guided by the government but also requires active participation from various social capitals. this provides many opportunities of mutual benefit and win-win for the united states and for hunan province. ladies and gentlemen and friends, this year will mark the 30th anniversary of the establishment of diplomatic relations between china and the united states. we have changed profoundly as the biggest developing country. china and the united states have both experienced ups and downs. yet we continue to progress. ext very senior levels and at other levels. and this is now covering the areas like politics, diplomacy, economic trade, we are over 60-plus mechanisms for change.

bilateral trade has risen to over $300 billion last year. we're now each others second biggest trade partner. and in the early years of diplomatic relations, there was very little nongovernmental exchange. now, we have 2.1 million people exchanging travel each way, and every day, 5,000 people cross the pacific. there are now 35 sister province state relations and 145 sister city relations. the u.s.-china relations are now one of the most influential and exciting relations in the world. this is good not only for the people of our two countries, but also good for world peace and development. henan is the sister province of kansas stay of the u.s. to celebrate this 30th anniversary between the ties of our two countries, to promote better relations, our government, the chinese people's association for friendship with

foreign cities, the governor of the state of kansas and the midwest u.s.-china association is going to conduct a u.s.-china midwest cooperation forum in the henan province this coming october 10. the topic will be exchanges, cooperation and development. we'll be having a high level summit as well as cultural exchanges. we'll be govering topics like how the midwest can better corporate with china to deal with the financial crisis, how it can corporate in agriculture. how we can have more education. how we can have invasion and regional developments. how we can have more cooperation in future and modern low giss ticks. by doing this, we will help address the financial crisis and we will build a new platform to promote.

now the n.g.a. was established in 1908, and it's ab important place where u.s. govers can influence ideas. also an important vote in american society. my colleagues and i have been paying great attention to this year's meeting, and we have great expectations for what you will achieve here. i would like, on behalf of the governor of my province, to extend our sincere invitation to all of you to bring delegations to attend our forum, to celebrate this event. and our invitation letters are already in your packets. we look forward to welcoming you. finally, i want to express my hopes for broth progress in america. my hopes for happy lives for

chinese and american people. and good health and happiness to all of you here. thank you@ @ @ @ @ @ rh"s@ @ @ >> [applause] >> vice governor, thank you for your presentation and invitation. it is certainly clear that a lot of challenges faced by our two countries are similar in terms of rebuilding our infrastructure and putting in place the road, bridge, rail, electric and telecommunications systems that will be necessary for success in a global economy. as you pointed out, we are a large trading partner and many governors have led trade missions to your current and we look forward to continuing to build on that relationship. are there questions of the vice governor?

again thank you for taking the time for being with us and bringing your delegation with you as well. i would like to know invite haley to come back to the podium and introduce our second speaker. >> you can certainly have that back. it wouldn't do me much good. it's my pleasure to introduce whit mormon who is the chairman president and c.e.o. of norfolk southern railroad. whit joined the railroad in 1970 and has had a number of senior positions since then. norfolk southern is one of the leading rail roads in the company. operates more than 20,000 miles of tracks in 22 eastern states. coal shipment but they're critical in trons porting cars, medals, chemicals, to paper products.

n.s. appointed the rail industries first corporate officerser in 2007, released the first report in 2008 and is working to intergrate sustainability practices across its business. part of the sustainability initiative, as part of it, the company has developed an in house green machine that enables shippers to instantly calculate the carbon savings from greater use of facilities and freight rail. nor folk is the heart land corridor and one of the critical transportation rights between norfolk, virginia and columbus, ohio. the corridor was recently upgraded through a public-private partnership and increased freight by raising vertical clearances in 28 tunnels. finally, the n.s., their leadership on sustainability is the use of advanced locomotive

technologies to reduce eyeding. norfolk southern has expanded the use of new, known as gin sets. they're multiengine that can reduce particular matter emissions up to 80%. the reason i'm here to introduce wick is because he's a native of hattiesburg, mississippi. wick moorman. [cheers and applause] >> thank you, governor barber. i grew up about 70 miles per hour from here. when i get down to this part of the world, i call it mississippi, too. up there we say mississippi and spell it out. thank you for the opportunity to

be here, and thanks to the n.g.a. for making this opportunity available. i feel very privileged to be able to participate in this discussion this morning about our nation's infrastructure. and i'm obviously here today to talk to all of you about the critical nature of rail, as a vital part of the solution to what i think i see, and i know many of you see, as a luming transportation crisis in this country. and i think that the fact that i've been invited here, in itself, speaks of the recognition that all of you, and the public policy leaders at all level have and a growing awareness that rail has to be part of the solution, and that rail roads offer significant economic and environmental benefits, while helping to relieve the stress on our nation's highways. and as you know, highway congestion is fast becoming public enemy number one in a lot

of cup. certainly all of you and the nation state houses are key to helping provide relief for transportation gridlock. and i want to say, that i am here to speak on behalf on all of my rail c.e.o.'s, in saying thanks to all of you for the leadership you've demonstrated and for the relationships that we've built with all of you. i should also say that while he's listening on the phone in governor rendell's absence, that he is a long time supporter of railway development programs. we appreciate that greatly because we have more of our 21,000 miles of network in pennsylvania than in any other of the 22 states we serve. we certainly commend governor rendell for his leadership in initiating this national dialogue in effort to strengthen all of our nation's infrastructure at such a critical time.

well, i don't need to tell all of you -- i made him hang up apatiently. that happens all the time. i don't know what it is. i don't need to tell all of you that our nation's transportation network is a very complex system and it demands the most creative efforts of all of us to operate it on an efficient basis. in our experience at norfolk southern, which is what i really want to talk about today, has shown that by walking together in public-private partnerships, we can achieve far more and far less time, and with far greater public benefits, than any of us can as working, while working alone. now, in some sense, that's not a big mystery. it's not a big secret. we've been doing this individually with a lot of you over the years in terms of economic development, where we partnered with you to bring new industries into states, as well

as expanding the existing industries that are there. these efforts, as all of you know, are all about new jobs, raising tax revenues, creating local business growth. and creating business for the railroad. and there are great things for all of us. let me give you a few norfolk southern numbers. i'll give you numbers all the other rail carry yers after their numbers. i'll talk about a couple of norfolk southern projects, all the others have projects that are almost as good as ours. but, working with the states we serve, just this past year, we located 830 new industries. we expanded 35 new industries. that represented about a $2.2 billion investment by customers, and by new citizens of this state. and we created about 3600 new jobs. and those are major headlines, particularly in the economic environment we're in today. if you look at the past 10 years, just on norfolk southern,

we've participated in the location or expansion of more than 1,100 new facilities. that represents an investment of $23.6 billion and created nearly 555,000 new customer jobs just in the territory we serve. by expanding that partnership concept across state lines and broadening, we can maintain public benefits associated with transportation infrastructure improvement, as i said before, none of us can do by ourselves, in any kind of reasonable or practical time frame. this is also a concept that works. i want to talk about something that governor barbar mentioned. we see this as a great example of how they can be leveraged to provide additional capacity on

our network with the public benefits of job creation, less highway congestion, lower environmental emissions, and fuel savings. the heart land core dor, is a norfolk southern rail route, it connects essentially the virginia ports in hampton roads with the heart land of america. columbus, ohio and then onto cleveland and chicago what we've been able to do is rage cleans and tunnels to allow them to stack railcars through that corridor. it's going to be open next year, and when we do, it will save about 00 miles on the route, in terms of existing rail transportation alternatives, and we'll take a lot more trucks off the highways. a model partnership in which we've had federal, state, and local support. substantial local support, as well as state support from west virginia, virginia, kentucky and

ohio. we open the western anchor of this route last year. we built in partnership with the columbus regional airport authority. what's happening in global trade is more and more international trade is entering the country through east coast ports. and we've seen this trend for some time now. and the challenge for us and for the ports is to get that traffic inland and to be more competitive by running quicker over shorter distances, and the heart land corridor is a great example of how we're doing that as a partnership. let me say that the federal fund from the heartland corridor came from the 2003 safely bill as part of the corridor's of regional or national significance. of all the pro john kerries authorized in that bill, there

are only three now underway. we'll be finished in 2010 and we'll be the first project finished. we think that's an absolutely great example of how the private sector can work with the public sector to really leverage investment and get the job done quickly. now, let me also mention there's an even bigger and better example on the way, now that we know about heartland and we have done that. we have a bigger project with a lot more public benefit, in what we call the crescent corridor. a 2,500 mile route that stretches from new jersey down to new orleans and memphis. and we'll you will mately take it from new england down into texas, or as we like to say from austin to boston. we don't have the infrastructure and capacity to provide the truck competitive service that's really needed to take a substancal portion of the now, more than five million truck

loads that travel every year in that market. it will ray low us to build the service to take those trucks off the highway. now, let me be very clear about this. we're not against trucks. in fact, they're among our biggest customers. governor barber mentioned what cole is in terms of our business, but an even bigger percentage are containers and running on the railroad. we're trying to address what they see as an infrastructure crisis. trucking industry, as all of you know, has its own share of problems. fuel efficiency problems, particularly with higher energy cost. big problems with driver shortages, growing problems with highway congestion and they want us to help them get the long

haul trucks off the highway. the crescent corridor is an idea opportunity. the average length of the haul would be about 1200 miles. so, very quickly. what are the public benefits? well, first, it creates jobs. we estimate over some 41,000 jobs just in the five states that are mostly directed by phase one -- mississippi, alabama, tennessee, virginia and pennsylvania. these are green jobs. i want to say that green. these are green jobs, that ultimately help relieve congestion on the highway, conserve fuel and reduce environmental emissions. just two days ago, we ah nounsed construction near birmingham, alabama and memphis, tennessee that will anchor one end of the crescent corridor. we'll also be building new terminals in charlotte and in franklin county, pennsylvania. and in all, we'll have to expand or build 13 new terminals and 11

different markets. now, i mentioned the big environmental and safety advantages, as well as creation of job and raising tax revenues. you've heard a lot of these numbers, but i'll say them again. rail is far more fuel efficient as a form of transportation than truck. that's reduced fuel consumption, lower emissions, one train handles the equivilent of 280 truck loads, and a train can haul a ton of freight, 436 miles on a single gallon of fuel. here are some of the numbers for crescent. more than a million tralks taken off the highways every year. more than 150 million gallons of diesel fuel saved annually. carbon emissions reduced by nearly two million tons a year, because we're nearly four times more fuel efficient than trucks on a 10-mile basis and emegses basis. the public will also say costs related to highway congestion.

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