very issue yet that's not found in the house bill. they took a different approach. so i think that -- i know there's a lot of people who want to see this marked up and rushed to the floor for a vote before the august break, maybe it can happen, maybe it can't. we shouldn't have an artificial deadline of when we get it done. rather, we should take our time and do it right. if we can do it right in the month of july, that's great. if we need additional time in order to get it done right, we should do that. because this is an issue that's going to face everyone in america. >> we're just about out of time, but is there frustration on your part with the liberals who run the committee, waxman of energy and commerce and rangel of ways and means, that they're driving the train on this? >> well, there is a growing frustration, not only among

conservative blue dog democrats, but across our caucus, quite frankly. of they got 'ems being put before us with an artificial deadline and being rushed through the process and onto the house floor. the american people want health care reform but they want us to slow down and get it right and have time to read the bills we're voting on. >> congressman mike ross, chair of the health care task force for the blue dog democrats a democrat from arkansas, thank you for joining us on newsmakers. we continue the conversation with david clark of c.q. politics.com. and anna edney. now that the sotomayor hearings have concluded, that the front and center. where is this going? >> the congressman said this may

all need to start over based on what c.b.o. is saying about the cost of health care. he's talking about amendments but not having anything specific quite yet. it looks like they may be looking to the senate finance committee to sort of solve the issue. they're the only bipartisan hope for a health care reform bill. they're still working, haven't come out with anything, they were delayed slightly, it seemed, by the sotomayor hearings, there were a number of negotiators, particularly on the republican side, involved in those. so now they've all been able to come back to the table and it looks like they're sort of the last best hope for anybody to get a bill that will actually do something to reduce the growth of health care spending. i think everyone will have their eye on them, and it seems including the blue dogs. >> you kept going back to, how do you pay this? he kept going back to waste, fraud, and abuse. >> that's the toughest question is how do you pay for it.

it seems difficult to do without some sort of tax component. when you talk about waste, fraud, and abuse, no one is against eliminating that but it's difficult when you talk about major, massive government programs to root out all that and get all the savings you could if you could eliminate all that. i think they'll be in a bit of a spot because the blue dogs sort of organizing principle is deficit reduction, being fiscally responsible. if they want to do that and make sure this is paid for, they may have to make concessions on the tax part. that will be one of the interesting things, when the bill comes to the floor in the house, in the past, the blue dogs have taken tough stands as bills are being negotiated saying they're wary of the bill because of its cost but when they came to the floor, they've been supportive of what leadership has wanted them to do. they have gotten some concessions but this is probably the biggest issue we'll see this dynamic play out on. i think it'll be interesting to

see, number one, what sort of concessions they get and how big those are and how the votes go down on the floor. they'll be very tough to vote against the leadership and the president if he want this is bill. >> yet for both of you, but saw this in 1993 and the democrats losing the house in 1949. how much of that is in the back of their minds as they look to the next mid term elections? >> i think it's extremely in the back of their minds because they want to pass the bill by august and get it to the president's desk by october so in 2010, this is not an issue that they'll be taking a vote, 2010 being an election year, especially these vulnerable democrats. they're not looking to take a vote to raise taxes so close to when their constituents are going to the polls. >> i think it's always a concern for people like congressman ross and the blue dogs, there's about 52 of them, in general the house is a little more liberal.

there's a concern that leadership may put a bill on the floor that they vote for, that they're attacked for back home by the republican running against them and in the end, the senate doesn't pass a similar bill, they pass a more moderate bill and they're left asking, why were we forced to take a vote to hurt us in our re-election campaigns when in the end it was never going to be what became law? >> david clarke who covers health care issues for cqpolitics.com and anna edney, also a health care reporter. thank you for being with us today. >> coming up next, we'll show you some of the senate confirmation hearings of supreme court justice sotomayor. then an interview with former treasury secretary paulson. then at 3:00, live, the

mississippi governors -- the national governors association in mississippi on emergency preparedness. >> tonight, spend an hour with "the wall street journal's" technology expert, walt mossberg on c-span's "q & a." >> the next step in the confirmation process for judge sotomayor will be a vote by the senate judiciary committee, scheduled to meet on tuesday. the vote could be taken at that time or they could schedule a day for the vote. continuing coverage of the confirmation process here on the c-span networks. for more, check out c-span.org. this past monday, the senate held a confirmation hearing for judge sotomayor, nominated by president obama to be justice of the supreme court. now some of the question and answer session with the senators.

in this first round of questioning, senators got 30 minutes of time. we'll begin with the final three senators from the round, tom coburn, arlen specter and al franken. >> welcoming again. first of all -- welcome, again. first of all, let me apologize to you, i was not able to hear, though i got to read, some of your comments yesterday. we have a schedule that says we must finish health care by a certain time, i was involved with that. i also apologize to you for the outburst that occurred in this committee. anyone who is pro-life recognizes that the way you change minds is not to yell at people, you love them and care about their concerns and take it to a level of understanding, not yelling.

i commend your composure and i apologize. i want to change the tone here. a lot of americans are watching this hearing. when i get together with a couple of doctors, they don't understand what i same when two lawyers talk, most people can't understand them. i want to use words the american public can understand, as i ask the questions and as you answer them. i will try to do thatened i hope you will too. you said that roe v. wade is settled law. what is the settled law in america about abortion? >> i can speak to what the court has said in its precedents. in planned parenthood versus k.c., the court reaffirmed the

holding of roe vs. wade, a woman has a constitutional right to terminate her pregnancy in certain circumstances. in k.c., the court announced that in reviewing state regulations that may apply to that right, that the court considers whether that regulation has an undue burden on the woman's constitutional rights. that's my understanding of what the law is. >> let me give you a couple of cases. let's say, i'm 38 weeks pregnant and we cover a small spina bifida sack on the lower sacrum, the lower part after the back on my baby, and i feel like i can't handle that. would it be legal to terminate that child's life? >> i can't answer that question in the abstract because i would have to look at what the state

of the state's law was on that question and what the state said with respect to that issue. i can say that the question of the number of weeks that a woman is pregnant has been approached to looking at a woman's -- that approach to looking at a woman's access was changed by k.c. that is, is the state regulating what a woman does an undue burden. i can't answer your hypothetical without looking at the state lieus. -- laws. and i'm sure that situation might arise before the court. >> does technology, in terms of the advancement of technology, should it have bearing on the way we look at roe v. wade. for example, published reports

most recently the 21-week, 21-week, 142 days fetus alive and well now at nine months of age with no aparent complications because the technology advanced so far we can save children who are born prematurely at that level. should that have a bearing as we look at the law? >> the law has answered a different question, it's talked about the constitutional right of women in certain circumstances and as i indicated, the issue becomes one of what is the state regulation in any particular circumstance. >> i understand, but all i'm saying is, should it have any bearing? >> yaff answer -- i can't answer that in the abstract, that question if it came before me wouldn't be in the way that you form it as a citizen. it would come to me as a judge in the context of some action

that someone is taking, whether, if it's the state, if it's a private citizen being controlled by the state, challenging that action, those issues -- >> viability is a portion of a lot of that. and a lot of the decision has been made based on that. if we have viability at 21 weeks, why would that not be something that should be considered as we look at the status of what can and cannot happen in terms of this right to privacy that's been granted under roe v. wade? >> all i can say to you is what the court has done. the standard the court has applied what factors it may or may not look at in a particular situation cannot be predicted to say, yes, absolutely, that's going to be considered. >> all i'm asking is whether it

should? should viability, should technology at any time be considered as we discuss these very delicate issues that have such an impact on so many people? and your answer is that you can't answer it >> i can't because that's not a question that the court reaches out to answer. that's a question that gets created by a state leglation -- regulation of some sort or an action by the state that may or may not, according to some claimants, place an undue burden on her. we don't make policy choices in the court. we look at the case before us with the interests that are argued by the parties, regard our precedent and atry to apply its principles to the elements parties are raising. >> i'm reminded of one of your quotes that says you do make policy and i won't continue that. i'm concerned and i think many

others are, does the state legislature have the right under the constitution to determine what is death? have we statutorily defined, and we have, in 50 states and most territories, what is death. do you think that's within the wem of what they can do? >> debbeds on what they're applying that definition to. there are situations in which they might and situations where that definition would or would not have applicability to the dispute before the court. all state action is looked at within the context of what the state is attempting to do and what liabilities it's imposing. >> but you would not deny the fact that states have the right to set up statutes that define, to give guidance to their citizen what constitutes death.

>> as i said, it depends on in what context they're attempting to do that. >> they're doing it so they limit the liability of others with regard to that decision. which would inherently be the right of the state legislature, as i read the constitution, you may have a different response to that. which brings me back to technology again. as recently as six months ago we now record fetal heartbeats at 14 days post-conception. we record fetal brain waves at 39 days post-conception and i don't expect you to answer this, but i do expect you to pay attention as you contemplate big issues, we have defined death as the absence of those but we refuse to define life as the presence of those. all of us are dependent at different levels on other people during all stages of our

development from the very early in the womb, outside of the womb, to the very late and it concerns me that we are so inaccurate, or inaccurate is an improper term, but inconsistent in terms of the application of logic. you said roe v. wade is settled law yesterday. and i believe it's settled under the basis of the right to privacy. which has been there. so the question i'd like to turn to next is, in your ruling, the second circuit ruling, on -- and i'm trying to remember the name of the case, maloney, the position was is that there's not an individual fundamental right to bear arms in this country. is that a correct understanding of that 1234 >> no, sir. >> please educate me, if you

would. individual, fundamental right to bear arms. is that correct? >> no, sir. >> please educate me, if you would. >> in the supreme court's decision in heller, it recognized an individual's right to bear arms as a right guaranteed by the second amendment, an important right, and one that limited the actions the federal government could take with respect to the possession of firearms. in that case we're talking about handguns. the maloney case presented a different question. that was whether that individual right would limit the activities that states would do to limit the regulation of firearms.

that question is addressed by a legal doctrine. that uses the word fundamental but doesn't have the same meaning that common people understand if word to mean. to most people the word means critically important, central, fundamental, rock basis. those means are not how the law uses that term when it comes to what the statescan do or not do. the term has a specific legal meaning. is that amendment of the constitution incorporated against the state? >> through the 14th amendment. >> and others. through the 14th.

the question becomes how that amendment to the constitution that protection applies or limits the state to act. in maloney the issue for us was a very narrow one. we recognized that the law of the land right now in the sense of precedence that there is an individual right to bear arms as it applies to federal government regulations. the question in maloney was different for us. >> okay. >> was that right incorporated against the state. and we determined that given supreme court precedence, precedence that had addressed that precise question and said it's not. wasn't fundamental in the legal doctrine sense. that was the court's holding. >> did the supreme court say in heller that it definitely was not? or did they just fail to rule on

it? >> they failed to rule on it. you're right. >> there's a very big difference there. >> i agree. so i sit in oklahoma in my home. what we have today as law on the land as you see it is i do not have a fundamental incorporated right to bear arms. as you see the law today. the l. as you see the interpretation of the law, in your opinion of what the law is today, is my statement a correct statement? >> no, it's not my interpretation. i was applying both supreme court precedence deciding that question and second circuit precedence that had directly answered that question and said it's not incorporated. the issue of whether or not it should be is a different question and that is the question that the supreme court

may take up. in fact, in his -- in his opinion, justice scalia suggested it should, but it's not what i believe. it's what the law has said about it. >> so what does the law say today about the statement? where do we stand with my statement that i claim to have a fundamental guarantee, spelled-out right of the constitution that applies to me the right to own and bear arms. am i right or am i wrong? >> i can't answer the question of incorporation other than to refer to precedent. precedent says, as the second circuit interpreted the supreme court's precedent that it's not -- it's not incorporated. it is also important to understand that the individual issue of a person bearing arms

is raised before the court in a particular setting. >> context, yes. >> and by that i mean what the court will look at is the state regulation of your right and then determine can a state do that or not. so each once you recognize a right, you are always considering what the state is doing to limit or expand that right and then decide is that okay constitutionally? >> it's very interesting to me. i went back and read the history of the debate on the 14th amendment and for many of you who don't know, what generated much of the 14th amendment was in reconstruction. southern states were taking away the right to bear arms by freed men, recently freed slaves and much of the discussion in the congress was to restore that right of the second amendment, through the 14th amendment to restore an individual right that was guaranteed under the constitution. so one of the purposes for the 14th amendment, one of the

reasons it came about is because those rights were being abridged in the southern states post-civil war. let me move on. in the constitution, we have the right to bear arms. whether it's incorporated or not, it's stated there. i'm having trouble understanding how we got to a point where a right to privacy which is not explicitly spelled out, but it's spelled out to some degree in the fourth amendment which has settled law and is fixed and something such as the second amendment which is spelled out in the constitution is not settled law and settled fix. i don't want you to answer that specifically. what i would like to hear you say is how do we get there? how do we get to the point that something is spelled out in the constitution and guaranteed to us, something that's spelled out specifically in our constitution is. would you give me your philosophical answer? i don't want to tie you down in

any future decisions, but how do we get there when we can read this book and it says certain things and those aren't dwarn teed, but the things that it doesn't say are. >> one of the frustrations with judges and their decisions by citizens is that and this is an earlier response to senator cornyn. what we do is different than the conversation that the public has about what it wants the law to do. we don't, judges, make law. what we do is we get a particular set of facts presented to us. we look at what those facts are and what in the case of constitutional amendments is. what states are deciding to do or not do and then look at the

constitution and see what it says and attempt to take its words and it's the principles and the precedence that have described those principles and applied them to the facts before you. in discussing the second amendment as it applies to the federal government, justice scalia noted that there had been long regulation by many states on a variety of different issues related to possession of guns. and he wasn't suggesting that all regulation was unconstitutional. he was holding in that case that he sees particular regulation was illegal. as you know, there are many states that prohibit felons from possessing guns and so does the federal government and so it's not that we make a broad policy

choice and say this is what we want, what judges do. what we look at is what other actors in the system are doing, what their interest in doing in it is and how that fits to whatever situation they think they have to fix. what congress or state legislature has to fix. all of that is the court's function. so i can't explain it philosophically. i can only explain it by its setting and what the function of judging is about. >> thank you. let me follow up with one other question. as a citizen in this country, do you believe in my right to have personal self-defense? do i have a right to personal self-defense?

>> i'm trying to think if i remember a case where the supreme court has addressed that particular question. is there a constitutional right to self-defense, and i can't think of one. i could be wrong, but i can't think of one. generally, as i understand, most criminal law statutes are passed by states and i'm also trying to think if there's any federal law that includes a self-defense provision or not. i just can't. what i was attempting to explain is that the issue of self-defense is usually defined in criminal statutes by the state's laws and i would think, although i haven't studied all of the state's laws. i'm intimately familiar with new york. >> do you have an opinion or can

you give me an opinion of whethe >> do i have the right as an individual to self-defense. >> i don't know if that legal question -- >> i'm not asking about the legal question, i'm asking about your personal opinion. >> that is sort of an abstract question with no particular meaning to me outside -- >> well, i think that's what american people want to hear, your honor. they want to know, do they have a right to personal self-defense? does the second amendment mean something under the 14th amendment? does what the constitution, how they take the constitution, not how leuer right -- how our bright legal minds, but what they think is important, is it ok to defend yourself in your home if you're under attack. the general theory is, do i have that right? i understand if you don't want to answer that because you might -- it might influence a case,

that's a fine answer with me, but that's what people want to know, not how you're going to rule what you'd rule, but just yes or no, do we have that right? >> i know it's difficult to deal with someone like a judge who is so sort of -- whose thinking is so cornered by law. >> kind of like a doctor, i can't quit using doctor terms. >> that's exactly right but let me try to address what you're saying in the context that i can, ok. which is what i have experience with. which is new york criminal law because i was a former prosecutor and i'm talking in very broad terms. but under new york law if you're being threatened with imminent death or very serious injury, you can use force to repel that. and that would be legal.

the question that would come up and does come up before juries and judges is how imminent is the threat? if the threat was in this room, i'm going to come get you, and you go home and get, or i go home, i don't want to suggest i am, by the way, i don't want anybody to misunderstand what i'm trying to say, if i go home, get a gun, come back and shoot you, that may not be legal under new york law, because you would have alternative ways -- >> you'll have lots of explaining to do. >> i'd be in a lot of trouble then. but i couldn't do that under a definition of self-defense. .

facts before you. >> the problem is we doctors think like doctors, it's hard to get out of the doctor skin. judges think like judges and lawyers think like lawyers. what the american people want to see is inside, what your gut says. i want to move to one other area. you've been fairly critical of justice scalia's criticism of the use of foreign law in making decisions, and i would like for you to cite for me either in the constitution or in the oath that you took outside of treaties the authority that you can have to utilize foreign law in deciding

cases in the courts of law in this country. >> i have actually agreed with justice scalia and thomas on the point that one has to be very cautious even in using foreign law with respect to the things american law permits you to. and that's an treaty interpretation or conflicts of law because it's a different system of law. >> but i accepted that. i said outside of those, in other areas where you will sit in judgment, can you cite for me the authority, either given in your oath or the constitution that allows you to utilize laws outside of this country to make the decisions about laws inside this country? >> my speech and my record on this issue because i've never used it to interpret the constitution or to interpret

american statutes is that there is none. my speeches made that very clear. >> so you stand by this, that there is no authority for a supreme court just toys utilize foreign law in terms of making decisions based on the constitution in our statutes? >> unless the statute requires you or directs you to look at foreign law and some do, by the way. the answer is no, foreign law cannot be used as a holding or precedent or to bind or to influence the outcome of a legal decision interpreting the constitution or american law that doesn't correct you to that law. >> well, let me give you one of your quotes. to suggest anyone that you could outlaw the use of foreign or international law is a sentiment that's based on a fundamental misunderstanding, what you would be asking american judges to do

is to close their mind to good ideas. nothing in the american legal system prevents us from considering those ideas. we don't want judges to have closed minds. just as much as we don't want judges to consider legislation and foreign law that's developed through bodies, elected bodies outside of this country to influence either rightly so or wrongly so against what the elected representatives and constitution of this country says. so would you kindly explain the difference that i perceive in both the statement versus the way you just answered? >> there is none. if you look at my speech you will see that repeatedly i pointed out both of the american legal system was structured not to use foreign law. it repeatedly underscored that foreign law could not be used as a holding as precedence or to

interpret the constitution of the statutes. what i pointed out to in that speech is that there's a public misunderstanding of the word use and what i was talking about, one doesn't use those things in the sense of coming to a legal conclusion in a case. what judges do, and i cited justice ginsburg is educate themselves. they build up a story of knowledge about legal thinking, about approaches that one might consider, but that's just thinking. it's an academic discussion when you're thinking about ideas than it is how most people think about the citation of foreign law in a decision. they assume if there's a citation to foreign law, that's driving the conclusion. in my experience when i've seen other judges cite a foreign law,

they're not using it to drive the conclusion, they're using just to point something out about a comparison between american law or foreign law, but they're not using it in the sense of compelling a result. >> i'm not sure i agree with that on the certain 8th amendment and 14th amendment cases. let me -- let me go to another area. i have just a short period of ti time. do you feel -- it's been said that we should worry about what other people think about us in terms of how we i were pretty our own law and i'm paraphrasing not very well, i believe. is it important that we look good to people outside of this country or is it more important

that we have a jurisprudence that is followed correctly under the constitution and whatever the results will be it's our result rather than a politically correct result that might please other people in the world? >> we don't render decisions to -- we don't render decisions to please the home crowd or any other crowd. i know that because i've heard speeches by a number of justices that in the past justices have indicated that the supreme court hasn't taken many treaty cases and that maybe we should think about doing that because we're not participating with countries under treaties that are ambiguous. that may be a consideration to some justices. some have expressed that as a consideration. my point is you don't rule to

-- you don't rule to please any crowd, you rule to get the law right. >> thank you. thank you, mr. chairman. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2009] >> judge what did you do with your mother? >> she needed a short break. it wasn't because of senators specter or franken. >> i had a nice chat with her this morning, she was talking about when she first came in

comparing notes with my wife, they both agreed that's when nurses truly had to be nurses, now nurses have it better with advances in medicine. advance of medicine. we will -- i just discussed this again with senator sessions. we'll go first to senator specter, then to senator franken and then recess and go into the other room for the closed hearing. senator specter, of course, is former chairman of this committee. one of the most senior members of the senate. one of the most experienced. senator specter? >> thank you, mr. chairman. welcome back, judge sotomayor. you have held up very well of

all of the proceedings in the senate. this is the most exacting on the witness. years ago, as you know, in case of ashcroft versus tennessee they said it was unconstitution alto subject a suspect to relayed grilling but that doesn't apply to nominees. and your family has been here. my wife joan specter who's been a soldier in her own right says it is a lot listening to methane it is to make a speech herself and you are engaged. i think beyond doing very well on stamina, you have shown intellect and humor and charm and pride and also modesty. so it's been very -- a good hearing. notwithstanding all of those

qualities, the constitution says we have to decide whether to consent and that requires the hearing process. and the questions. before going into long list of issues which i have on the agenda, separation of power and wireless wiretaps and secret cia programs and voting rights and the americans for disability act and a women's right to choose and the environmental protection agency and clean water act, television, second amendment, i'd like to make an observation or two. there has been a lot of talk about a wise latino woman. and i think that this proceeding is tended to make a mountain out of a mole hill. we have had a consistent life of people who are nominees who make

references to their own backgrounds. we all have our perspective. justice o'connor talked about her life experience, justy alito talked about his family suffering from ethnic slurs. justice thomas, talked about putting himself in the shoes of other people. and justice scalia talked about being in a racial minority. the expectation would be that a woman would want to say something to assert her competence in a country which denied the women the right to vote for decades with the glass ceiling limited people. whether there's still disparagement of people on ethnic background. just this month in a suburb of philadelphia, hispanic children

were denied access to a pool for whites only as we're african-american children so i can see how someone would take pride in being a latino woman and assert herself. a lot has been made of the issue of empathy but that characteristic is not exactly out of place in judicial determinations. we have come a long way on the expansion of constitutional lives. the famous statement that the life of the law is experience, not knowledge. in kentucky talking about changing values. and the warren court changed the constitution practically every day of which i saw being in the

district attorney's office with changes of search and seizure, miranda, confessions, right to who would have thought it would take until 1963 to have the right to counsel? we've heard a lot of talk about the nomination proceedings of judge moore. anybody who looks at that will see it's very, very different. we have a situation where judge moore was an advocate of original intent from his days writing the law review article in "the indiana law review." how can you have original intent when the 18th amendment was written by the senate on equal protection with senate galleries where you have judge bjork who believed in equal protection applied only to race and ethnicity, didn't even apply to

women. it was a very, very thorough hearing. i spent beyond the hearing days three long hours with judge bjork. it was his own a-- judge work. it was his own approach to the law there. but you have an approach to the law which puts empathy in an ok status, an ok category. i want to -- now on to the issues. i begin with an area of cases which the court has decided not to decide. and those cases can be even more important than many of the cases which the court decides. the docket of the court, the present time, is very different from what it was a century ago.

1886, the docket had 1,396 cases, decided 451. 100 years later, there were only 161 signed opinions in 1985. 2007, only 67. signed opinions. during his confirmation hearings, chief justice roberts said, quote, the court could contribute more to the clarity and uniformity of the law by take manager cases. judge sotomayor, do you agree with that statement by chief justice roberts? judge sotomayor, do you agree with that statement by chief justice roberts? >> i know, senator specter, that there is questions by many people, including senators and yourself of justice roberts and other nominees about this issue.

can the court take on more? to the extent that there's concern about it, not that public opinion should drive the justices to take more cases just to take them, but i think what judge justice roberts was saying is, the court needs to think about its processes to ensure that it's fulfilling -- >> judge sotomayor, how about more cases? >> well, perhaps i need to explain to you that i don't like making statements about what i think the court can do until i've experienced the process. >> let me move on to another question. one case that the court did not get involved a terrorist surveillance program which i think arguably owes the greatest conflict between congressional powers under article i in

enacting the foreign intelligence surveillance act which provided for the exclusive way to get wiretaps. the president disregarded that in a secret program called the terrorist surveillae program. didn't even tell the chairman of the judiciary committee which is the required practice or accepted practice. didn't tell the intelligence committees where the law mandates that they be told about such programs. was only disclosed by "the new york times." those practices confronts us this day with reports about many other secret cases not disclosed. the federal district court in detroit found the terrorist surveillance program unconstitutional. 6th circuit in a 2-1 opinion said there was no standing.

the dissent, i think, pretty conclusive had a much better on asserting standing. the supreme court of the united states denied -- didn't even take up the case to the extent of deciding whether it shouldn't take it because of lack of standing. i wrote you a letter about this. wrote a series of letters. and gave you advance notice that i would ask you about this case. i'm not asking you how you would decide the case but wouldn't you agree that the supreme court should have taken that kind of a major conflict on separation of powers? >> i know it must be very frustrating tyou to -- >> it sure is. i was the chairman who wasn't notified. >> no. i'm -- >> he was the ranking member that wasn't notified. >> i can understand not only

congress' or your personal frustration and sometimes of citizens when there are important issues that they would like the court to consider. the question becomes, what do i do if you give the honor to serve on the court if i say something today, is that going to make a statement about how i'm going to prejudge someone else's -- >> i'd like to know your standards for taking the case if you have that kind of a monumental, historic conflict and the court is supposed to decide conflicts between the executive and legislative branches, how can it possibly be justified not to take that case? >> there are often from what i understand and that review of supreme court actions and cases of situations in which they have or have not taken cases and i

have read some of their reasoning as to this. i know that with some important issues they want to make sure that there isn't a procedural bar to the case of some type that would take away from whether theyer, in fact, doing what they would -- >> well, was there a procedural bar? you had weeks to mull that over because i gave you notice. >> senator, i'm sorry. i did mull this over. my problem is that without looking at a particular issue, and considering the style, the discussion of potential colleagues as to the reasons why a particular issue should or should not be considered -- >> well, i can tell you're not going to answer. let's move on. a woman's right to choose,

circuit judge said in a case of richmond medical center said that casey versus planned parenthood was super starry desigh sis. do you agree with the judge? >> i don't use the word super. i don't know how to take that word. all precedent of the court is entitled to the respect of the doctrine of starry decisis. >> do you think that roe versus wade had added to the woman's right to choose by vir chu of casey versus planned parndhood? >> that is one of the factors i believe courts have used to consider the issue of whether or not a new direction should be taken in the law.

there is a variety of different factors the court uses, not just one. >> that is one which would give it exploit. how about the fact that the supreme court of the united states has had 38 cases after roe versus wade where it could have reversed roe versus wade? would that add weight to the impact of roe versus wade to guarantee a woman's right to choose? >> the history of a particular holding of the court and how the court had dealt with it in subsequent cases would be among one of the factors as many that a court would likely consider. each situation, however, is considered in a variety of different viewpoints and arguments and most importantly factors of the court applies to this question of should

precedence be altered in a way. >> well, wouldn't 38 cases lend a little extra support to the impact of roe and casey before the court had the issue before it, could have overruled it? >> in -- >> just a little extra impact? >> casey itself applied or by opinion authored by justice suitor talked about the factor that is a cur thinks about in whether to change precedent and among them were issues of whether or not or how much reliance society has placed in the prior precedent. what are the costs that would be occasioned by changing it? was the rule workable or not? have either factual or doctrinal basis of the prior precedent altered either from developments in related areas of law or not

to counsel a reexamination of a question -- >> i'm going to move on. go ahead. >> and the court has considered in other cases the number of times the issue has arisen and what action the court has or not taken with respect to that. roe is the -- roe casey did upheld the court holding of roe so my understanding would be that the issue would be addressed in light of casey on the starry -- >> do i hear you say it would at least a little bit -- let me move on to another separation of powers argument, and that is, between congress and the court. in 1997 in the case called born, suddenly the supreme court of the united states found a new

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

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

words mean and if we have time in the second round, i'll ask you to define them but there's other questions i want to come to you. do you agree with justice scalia that it's a flabby test and that with having such a vague standard the court can do anything it wants and really engages in policy-driven decision making which means the court in effect >> the question of whether i agree with the view of a particular justice or not is not something i can say in terms of the next case. in the next case that the court will look at and a challenge to a particular congressional statute -- >> not the next case, case. you have these two cases, they have the same factual record and the supreme court in effect legislates, tells us what is right and what is wrong on the

standard that nobody can understand. >> as i understand the congruence and proportionality test, it is the supreme court's holding on that test, as i understand it, that there is an obligation on the court to ensure that congress is legislating within its legislative powers. the issue is not -- these are section five cases, which are the clause of the constitution under the 14th amendment that permits congress to legislate on issues involving violations of the 14th amendment. the court in those cases has not said that congress can't legislate. what it has looked at is the form of remedy congress can order. >> let me move on to the voting

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

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

congress is owed and i can point to at least the two cases, and there are many, many more that shows how much i value the fact that we are a court that must give deference to congress in the fields within its constitutional power. >> do you agree with chief justice roberts, i sent you that quotation a long time ago and said i'd ask about it. do you agree or not? >> i agree to the extent of what deference congress is owed. i can't say what he intended to say by that. >> not what he intended but what he did say. >> i heard what he said, i don't know what he intended. i do understand the importance to congress' factual findings that my cases in my -- and my approach in my cases reflect that. factual

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

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

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

justice kennedy said it was inevitable. the record of the justices appearing on television is extensive. chief justice roberts and justice stefbs want prime time abc. justice breyer on fox news and so forth down the line. we all know that the senate and house are televised. we all know the tremendous, tremendous interest in your nominating process. and it happens all the time. there's a lot of public interest. but the court is the least accountable. in fact, you might say the court is unaccountable. when the bush versus gore we decided then senator biden and i wrote to chief justice rehnquist

asking that television be permitted. got back a prompt answer, no. that was quite a scene across the street. the television trucks were enormous, just all over the place. you had to be the chairman of the committee to get a seat inside the chamber. the supreme court decides all the cutting edge questions of the day. right of women to choose, abortion, death penalty, organized crime. every cutting-edge question. and bush versus gore was probably the biggest, one of the biggest cases, arguably the biggest case. more than 100 million people voted in the election. and the presidency was decided by one vote. and justice scalia had this to say about irreparable harm. the counting of votes that are of questionable legality does in my view threaten irreparable

harm to referring to president bush or candidate bush. and to the country by casting a cloud upon what he claims to be the legitimacy of the election. permitting the court to proceed on that erroneous basis will prevent an account, an accurate recount from being conducted on a basis later. hard to understand what recount there is going to be later. i wrote about it at the time saying that i thought it was an atrocious accounting of irreparable harm. hard to calculate, hard to calculate that. and my question, judge sotomayor, shouldn't the american people have access to what is happening in the supreme

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

if i become fortunate enough to be there to discuss it with my colleagues. and that question is an important one, obviously. there's legislation being considered both by congress or has been considered by congress at various times and there's much discussion between the branches on that issue. it is an ongoing dialogue. it is important to remember that the court because of this issue has over time made public the transcripts of its hearings quicker and quicker if i'm accurate now, it used to take a long time for them to make those transcripts available and now they do it before the end of the day. it's an ongoing process of discussion. >> thank you, judge sotomayor. thank you, mr. chairman.

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

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

and i'm -- i'm asking you questions because you have been nominated to be a justice of the united states supreme court. i think that's pretty cool. as i said in my opening statement, i see these proceedings as both as a way to take a judent of you and the nominee's suitabili right now, people are getting more and more of their information on the internet. in newspapers, television, blogs, radio. americans are getting all of it online. it plays a central role in our democracy by allowing anyone with a computer connected to the internet to publish their ideas, their thoughts, their opinions,

and reach a worldwide audience of hundreds of millions of people in seconds. this is free speech. and this is essential to our democracy and we saw this in iran, not long ago. now judge, you are familiar with the supreme court's 2005 brand x decision, aren't you? >> i am. >> then you know that brand x deregulated internet access services, allowing service providers to act as gate keepers to the internet, even though the internet was originally government funded and built on the notion of common care and openness. in fact we've already seen examples of these companies belonging access to the web and discriminating on certain uses of the internet. this trend threatens to

undermine the greatest engine of free speech and commerce since the printing press. let's say you're living in duluth, minnesota, and you only have one internet service providers, -- provider, the big mega corporation, they're not only a service provider, but a content provider. they own newspapers, they own tv networks, they -- or network. they have a movie studio. they decide to speed up their own content and slow down other content. the brand x decision by the supreme court allows them to do this. and this not just duluth, it's morehead, minnesota, rochester, minnesota, youngstown, ohio,

it's denver, san francisco, and yes, it's new york. this is frightening. frightening to me and to millions of my constituents. internet connections use public resources. the public airwaves, the public rights of way. doesn't the american public have a compelling first amendment interest in ensuring that this can't happen and that the internet stays open and access snble in other words, that the internet stays the interset? accessible, in other words, that the internet stays the internet? >> many describe the telephone as the revolutionary and it did

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

access to that is a question that society is -- that our citizens, as well as yourself, are concerned about. but the role of the court is never to make the policy. it's to wait to congressacts. and then determine what congress has done in its constitutionality in light of that ruling. brand x as i understood it was a question of which government agency would regulate those providers. and the court looking at congress' legislation in these two areas determined that it thought it fit in one box, not the only. one agency instead of another. >> is this title i and title ii? or as i understand it title ii

is subject to a lot of regulation and title i isn't? >> exactly. but the question was not so much stronger regulation or not stronger regulation. it was which set of regulations given congress' choice control. obviously, congress may think that the regulations the court has in its hold iing interprete congress' intent and that congress thinks the court got it wrong. we're talking about statutory interpretation and congress' ability to alter the court's understanding by changing the statute as it chooses. this is not to say i minimize the concerns you express. access to internet, given its importance in everything today, most businesses depend on it. most individuals find their

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

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

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

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

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

ominous increase in what i consider judicial activism of late, and i want to ask you about a few cases, and see if you can shed some light on this for us and for the people watching at home or in the office. i want to talk about northwest austin utility, district number one. the holder, the voting rights act case and senator carden mentioned it, but he didn't get out his pocket constitution as i am. the 15th amendment was passed after the civil war and gave congress the authority to pass laws to protect all citizens' right to vote. section one, amendment number 15. section one, the right of citizens of the united states to vote shall not be denied or aprivileged by the united states or by any state on account of

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

and justice thomas votes to hold section 5 unconstitutional. he said it went beyond the m mandate of the 15th amendment because it wasn't necessary anymore. that's what he said. now, when i read the 15th amendment, it doesn't contain any limits on congress's power. it just says that we have it. it doesn't say if necessary, the congress shall have power to enforce this article. it just says that we have the power. so it is my understanding that the 15th amendment contains a very strong, very explicit and unambiguous grant of power to the congress and because of that, the courts should pay greater deference to it. and my question is, is that your view? >> as you know, some of the

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

sentence. but i just think that's where you're going. >> all i can say to you is i have one decision among many, but one decision on the voting rights act, the recent reauthorization by congress. but a prior amendment, where i suggested that these issues needed -- issues of changes in the voting my jurisprudence shows the degree to which i give deference to congress' finding, whether in a particular situation that compels or doesn't leads to a different result is not something i can opine on because, particularly the issue you're addressing right now is likely to be considered by the court. the a.b.a. rule says no judge should make comment on the merits of any pending or impending case. this clearly would be an

impending case. >> ok. it's fair to say in your own decision you gave deference to congress. it feels like this is very explicitly up to congress. >> i gave kenches to the -- deference to the exact language congress used in the voting rights act and how it applied to a challenge in that case. >> ok. now voting to overturn federal legislation, to me, at least, seems to be one definition of what people understand as judicial activism. but i want to talk about some cases that i think showed judicial activism functioning on a more pernicious level. first let's take a look at the case called gross v. f.p.l. financial services that the supreme court issued last month. are you familiar with that? >> i am. >> it involved discrimination

act in the age discrimination act. it said you could bring an age discrimination suit if you can show that age is one factor the employer used to consider hiring you. the supreme court said it would consider one question, whether you needed evidence of age discrimination to bring this lawsuit or whether indirect evidence would suffice. that's what they said they'd consider when they said they'd take the case. . when the supreme court handed dow decision, it ruled on a much larger matter. whether a worker could bring a suit under aeda, if age was only one of several reasons for being demoted or fired. the supreme court barred these suits, saying that only suits suits, saying that only suits alleging that age was the

determinative factor could be brought. this as significantly eroded workers rights by making it much harder for workers to defend themselves against age discrimination, including getting fired just before they would have seen a large increase in their pension. you were fired because your pension is going to increase soon. so this is a big deal. when you go to court to defend your rights, you have to know what rights you're defending. the parties in the gross case thought they were talking about what kind of evidence was necessary in a discrimination suit. then the court just said no, we're banning that kind of suit altogether. i think that's unfair to everyone involved. it's especially unfair to the man trying to bring the discrimination suit. so let me ask you a couple of questions on this. first, as an appellate court

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

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

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

it did in title 7, which is to amendment the act. >> title 7, they amended the act because they had to. they were forced to, right? congress was compelled to in a sense. but not on the aeda. >> i don't like characterizing the reasons for why congress acts or -- >> okay, okay. let me jump ahead to something. yesterday a member of this committee asked you a few times whether the word abortion appears in the constitution. >> and you agreed that no, the word abortion is not in the constitution. are the words birth control in the constitution? >> no,sir. >> are you sure? >> yes, sir. >> are the words privacy in the constitution? or the word? >> the word privacy is not.

>> senators feinstein raised issue of privacy, but i want to hit this head-on. do you believe that the constitution contains a fundamental right to privacy? >> it contains, as has been recognized by the courts for over 90 years certain rights under the liberty provision of the due process clause that extends to the right to privacy in certain situations. it started with a recognition that parents have a right to direct the education of their children and that the state could not force parents to send their children to public schools or to bar their children from being educated in ways a state found objectionable. obviously states do regulate the content of education, at least in terms of requiring certain

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

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

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

>> is the senator from minnesota going to tell us which episode that was? >> i don't know. that's why i was asking. if i knew i wouldn't have asked her. >> so because of that, judge, we will not hold your inability to answer the question against you. now, i just discussed this with senator sessions but i make the formal request. is there an objection to go into a closed session. every nominee back since chairman biden was a chairman of this committee. >> i think that's the right thing to do and there will be no objection that i know of. >> thank you very much. i appreciate that comment, so hearing none, the committee will proceed to a closed session and we will resume the public

hearings later this afternoon. and for the sake of those who have to handle all electronic kind of things, we'll try and give you enough of a heads-up. we'll stand in recess. >> the next step in the confirmation process will be a vote by the judiciary committee. they are scheduled to meet on tuesday. a vote could be taken on that time or they could schedule a date. for more on judge sotomayor's nomination, check out our website c-span.org

we are showing you portions of the confirmation hearing for sonia sotomayor to be justice on the supreme court. after the first round, they moved on to a second round of questions. each got 20 minutes to talk with sonia sotomayor. >> thank you, mr. chairman. m. >> thank you, mr. chairman. and something i would like to say to you directly and publicly and with admiration for your life story is that a lot of the wrongs that have been mentioned, some have righted, some have yet to come, judge, i hope you understand the difference between petitioning one's government and having a say in the electoral process and voting for people that if you don't like you can get rid of, and the difference of society being changed by nine unelected people who have a lifetime appointment. do you understand the difference in how those two systems work?

>> absolutely, sir. i understand the constitution. >> and the one thing i can tell you -- this will probably be the last time we get to talk in this fashion. i hope to have a chance to get to know you better, and we'll see what your future holds. but i think it's going to be pretty bright. the bottom line is, one of the problems the court has now is that mr. richie has a story to tell, too. there are all kinds of stories to tell in this country. and the court has, in the opion of many of us, gone into the business of societal change not based on the plain language of the constitution, but based on motivations that can never be checked at the ballot box. brown versus board of education is instructive in the sense that the court pushed the country to do something politicians were not brave enough to do.

certainly we'r if i were not elected -- i would be amazed if i would have had the courage of a judge johnson in the political arena. the court went through an analysis that separate was not equal. it had a basis in the constitution after fact finding to reach a reasoned conclusion in the law and the courage to implement that decision. society had the wisdom to accept the court's opinion, even though it was contentious. literally, people died. we're going to talk about some difficult societal changes that are percolating in america today. weicker should get married? what boundaries should be on the definitions of marriage? who is best capable of making

those fundamental decisions? the full faith and credit clause in essence says that when a valid enactment of one state is entered into, the sister states have to accept it. but there is a public policy exception in the cause. are you aware of that? exception in the full faith and credit clause. are you aware of that? >> i am. applied in different situations. >> some states have different age limits for marriage. some states treat marriage differently than others. and the court's deferred based on public policy. the reason these speeches matter and the reasons elections matter is because people now understand the role of the court in modern society when it comes to social change. that's why we fight so hard to put on the court people who see the world like us.

that's true from the left, and that's true from the right. and let me give you an example of why that's important. we've talked a lot about the second amendment whether or not it is a fundamental right. we all now agree it is an individual right. is that correct? >> correct. >> well, that's groundbreaking precedent in the sense that just until a few months ago, or last year, i guess, that was not the case, but it is today. it is the law of the land by the supreme court, the second amendment is an individual right. and you acknowledged that. that's correct? >> that was -- decision, and it is what the court has held, and so it is unquestionably an individual right. >> but here's the next step for the court. you will have to, if you get on the court, with your fellow justices, sit down and discuss

whether or not it is a fundamental right to the point that it is incorporated through the due process clause of the 14th amendment and applied to every state. isn't it fair to say, judge, that when you do that, not only will you listen to your colleagues, you will read whatever case law is available, you're going to come down based on what you think america's all about. >> no, sir. >> so what binds you when it comes to a fundamental right? >> the rule of law. and -- >> in the rule of law when it comes to what you consider to be a fundamental right, your opinion as to what it fundamental among all of us? >> no. in fact, the question that you raise, is it fundamental in the sense of the law -- >> right. >> -- that's a legal term, is

very different. and it is important to remember that the supreme court's precedent on the second amendment predated its more wholesome development -- >> i hate to interrupt. is there sort of a legal cookbook you can go to and say this is a fundamental right, "a," and "b" is not? >> well, there's not a cookbook, but there was precedent established after the older precedent that has talked and described that doctrine of incorporation. that's a set of precedents that -- >> are you talking about the 189d 0 case? >> yes. well, the 1890 case was the supreme court's upholding on this issue. but since that time, there has been a number of decisions discussing the incorporation doctrine applying it to different provisions of the constitution. >> is there any personal judgment to be relied upon by a

supreme court justice in deciding whether or not the second amendment is a fundamental right? >> well, you hire judges for their judgments, not their personal views or what their sense of what the outcome should be. you hire your point judges for the purpose of understanding whether they respect law, whether they respect precedent and apply it -- >> i don't doubt that you respect the law, but you're going to be asked, along with eight other colleagues if you get on the court, to render a decision as to whether or not the second amendment is a fundamental right shared by the american people. there is no subjective judgment there. >> the issue will be controlled by the court's analysis of that

question in the case, fundamental is defined by incorporation and likely will be looked at by the court in a case that challenges a state regulation. at that -- i'm sorry. at that point i would presume that the court will look at its older precedent and the way it did in heller, consider whether it controls the issue or not. it will decide, even if it controls it, whether it should be revisited under the doctrine of stare decisis. it could decide it doesn't control. it could decide it does control but it should revisit it. in revisiting it, it will look at a variety of different factors. among them, have there been changes in related areas of law that would counsel questioning

it? as i've indicated, there was a lot of law after the older cases on incorporation. i suspect, but i don't know, because i can't prejudge the issue that the court will consider that with all of the other arguments that the parties -- >> well, maybe i've got it wrong, then. maybe i'm off base here. maybe, you know, you've got the seventh circuit talking about the heller case did not decide the issue of whether it should be incorporated to the states because it's only dealt with the district of columbia. you've got the ninth circuit -- and i never thought i'd live to hear myself say this. look at the ninth circuit. they have a pretty good rationale as to why the second amendment should be considered a fundamental right. and they talked about the longstanding relationship of the english man, and they should have put woman, at least in south carolina, that would have applied, to gun ownership. they talked about it was this

right to bear arms that led to our independence. it was this right to bear arms that put down a rebellion in this country. and they talked about who we are as a people and our history as a people. and judge, that's why the supreme court matters. i do believe, at the end of the day, you're not going to find a law book that tells you whether or not a fundamental right exists vis-a-vis the second amendment that you're going to have to rely upon your view of america who we are, how far we've come and where we're going to go in our relationship to gun ownership. that's why these choices are so important. and here's what i'll say about you. and you may not agree with that, but i believe that's what's you're going to do. and i believe that's what every other justice is going to do. and here's what i will say about you. i don't know how you're going to

come out on that case. because i think fundamentally, judge, you're able, after all these years of being a judge, to embrace a right that you may not want for yourself to allow others to do things that are not comfortable to you but for the group, they're necessary. that is my hope for you. that's what makes you to me more acceptable as a judge and not an activist because an activist would be a judge who would be chomping at the bit to use this wonderful opportunity to change america through the supreme court by taking their view of life and imposing it on the rest of us. i think and believe, based on what i know about you so far, that you're broad-minded enough to understand that america is

bigger than the bronx, bigger than south carolina. now, during your time as an advocate, do you understand identity politics? what is identity politics? >> politics based simply on a person's characteristic shadowily referred to either race or ethnicity or gender, religion. it is politics based on -- >> do you embrace identity politics personally? >> personally as a judge i don't in any way embrace it as to judging. as a person, i do believe that certain groups have and should express their views on whatever social issues may be out there. but as i understand the word "identity politics," it's usually denigrated because it

suggests that individuals are not considering what's best for america. that's my -- and that i don't believe in. i think that whatever a group advocates, obviously it advocates on behalf of its interests and what the group thinks it needs, but i would never endorse a group advocating something that was contrary to some basic constitutional right as it was known at the time. although people advocate changes in the law all the time. >> do you believe that your speeches properly read embrace identity politics? >> i think my speeches embrace the concept that i just described, which is you have interests that you should seek to promote. what you're doing is important in helping the community develop. participate.

participate in the process of your community. participate in the process of helping to change the conditions you live in. i don't describe it as identity policies because politics because it's not that i'm advocating that groups do something illegal. >> well, judge, to be honest with you, your record as a judge has not been radical by any means. it's to me left of center, but your speeches are disturbing, particularly to conservatives, quite frankly, because they don't talk about get involved, go to the ballot box, make sure you understand that america can be whatever you'd like it to be. there's a place for all of us. it really did -- to suggest those speeches to me suggested gender and racial affiliations in a way that a lot of us wonder, will you take that line

of thinking to the supreme court in these cases of first precedent? you have been very reassuring here today and throughout this hearing that you're going to try to understand the difference between judging and whatever political feelings you have about groups or gender. now, when you were a lawyer, what was the mission statement of the puerto rican legal defense fund? >> to promote the civil rights and equal opportunity of hispanics in the united states. >> during your time on the board -- and you had about every job a board member could have -- is it a fair statement to say that all of the cases embraced by this group on abortion advocated the woman's right to choose and argue against restrictions by state and

federal government on abortion rights? >> i didn't -- i can't answer that question because i didn't review the briefs. i did know that the funds had a health care docket that included challenges to certain limitations on a woman's right to terminate her pregnancy under certain circumstances. >> judge, i may be wrong, but every case i've seen by the puerto rican legal defense fund advocated against restrictions on abortion, advocated federal taxpayer funding of abortion for low-income women. across the board, when it came to the death penalty, it advocated against the death penalty. when it came to employment law, it advocated against testing and quotas. i mean, that's just the record

of this organization. and the point i'm trying to make is that whether or not you advocate those positions and how you will judge can be two different things. i haven't seen in your judging this advocate that i saw or this board member. but when it came to the death penalty, you filed a memorandum with the puerto rican legal defense fund in 1981 -- and i would like to submit this to the record -- where you signed this memorandum and you basically said that the death penalty should not be allowed in america because it created a racial bias, and it was undue burden on the perpetrator and their family. what led you to that conclusion in 1981? >> the question in 1991 -- >> '81. >> '81, i misspoke about the year. an advocacy by the fund taking a position on whether legislation by the state of new york

outlawing or permitting the death penalty should be adopted by the state. i thank you for recognizing that my decisions have not shown me to be an advocate on behalf of any group. that's a different -- dramatically different question than what -- whether i follow the law. and in the one case i had as a district court judge, i followed the law completely. >> the only reason i mention this, when alito and roberts were before this panel, they were asked about memos they wrote in the reagan administration, clients they represented, a lot, to try to suggest that you -- if you wrote a memo about this area of the law to your boss, ronald reagan, you must not be fit to judge. well, they were able to explain the difference between being a lawyer in the reagan administration and being a judge. and to the credit of many of my democratic colleagues, they

understood that. i'm just trying to make the point that when you were an advocate, when you were on this board, the board took positions that i think are left of center. and you have every right to do it. have you ever known a low-income latino woman who was devoutly pro-life? >> yes. >> have you ever known a low-income latino family who supported the death penalty? >> yes. >> so the point is, there are many points of view within groups based on income. you have, i think, consistently as an advocate took a point of view that was left of center. you have as a judge been generally in the mainstream. the richie case, you missed one of the biggest issues in the country, or you took a pass. i don't know what it is. but i am going to say this.

that as senator feinstein said, you have come a long way. you have worked very hard. you have earned the respect of ken starr. and i would like to put his statement in the record. and you have said some things that just bugged the hell out of me. >> may i -- >> the last question on the wise latina woman comment. to those who may be bothered by that, what do you say? >> i regret that i have offended some people. i believe that my life demonstrates that that was not supreme court judge of texas as well as former attorney general, valued member of this committee. senator cornyn.

>> thank you, chairman. good morning, judge. >> good morning, senator. >> judge, when we met the first time, as i believe i recounted earlier, i made a pledge to you that i would do my best to make sure you were treated respectfully and this would be a fair process. i just want to ask you up front, do you feel like you've been given a chance to explain your record and your judicial philosophy to the american people? >> i have, sir. and every senator on both sides of the aisle that have made that promise to me have kept it fully. >> and judge, you know the test is not whether judge sonia sotomayor is intelligent, you are, the test is not whether we like you. i think speaking personally, i think we all do. the test is not even whether we admire you or we respect you, although we do admire you and respect what you've

accomplished. the test is really what kind of justice will you be if confirmed to the supreme court of the united states? will you be one that adheres to a written constitution and written laws and respect the right as a people to make their laws through their elected representatives, or will you pursue some other agenda, personal, political, ideological that is something other than enforcing the law? i think those are the -- that is really the question. and, of course, the purpose of these hearings, as you've gone through these tedious rounds of questioning, is to allow us to clear up any confusion about your record and about your judicial philosophy. yet so far i find there's still some confusion. for example, in 1996, you said the idea of a stable, quote, capital "l" law was a public

myth. this week you said that fidelity to the law is your only concern. in 1996, you argued that indefiniteness in the law was a good thing because it allowed judges to change the law. today you characterized that argument as being not only that ambiguity can't exist, and it is congress' job to change the law. in 2001 you said that innate physiological differences of judge would or could impact their decisions. yesterday you characterized that argument as being that only innate physiological differences of litigants could change decisions. in 2001 you disagreed explicitly with justice o'connor's view of whether a wise man and a wise woman would reach the same decision. yet during these hearings you characterize your argument as being that you agreed with her. a few weeks ago in your speech on foreign law to the american

civil liberties union, you rejected the approach of justices alito and thomas with regard to foreign law. and yet it seems to me during these hearings, you have agreed with them. so judge, what should i tell my constituents who are watching these hearings and saying to themselves in berkeley and other places around the country, she says one thing, but at these hearings, you are saying something which sounds contradictory, if not diametrically opposed, to some of the things you've said in speeches around the country? >> i would tell them to look at my decisions for 17 years and note that in every one of them, i have done what i say that i so firmly believe in. i prove my fidelity to the law.

the fact that i do not permit personal views, sympathies or prejudices to influence the outcome of cases rejecteding the challenges of numerous plaintiffs with undisputably pathetic claims, but ruling the way i have on the basis of law, rejecting those claims. i would ask them to look at the speeches completely, to read what their context was, and to understand the background of those issues that are being discussed. i didn't disagree with what i understood was the basic premise that justice o'connor was making which was that being a man or a woman doesn't affect the capacity of someone to judge fairly or wisely.

what i disagreed with was was the literal meaning of her words because neither of us meant the literal meaning of our words. my use of her words was pretty bad in terms of leaving a bad impression. but both of us were talking about the value of experience and the fact that it gives you equal capacity. in the end, i would tell your constituents, senator, look at my record and understand that my record talks about who i am as a person, who i believe in, and my judgment and my opinion, following the rule of law is the foundation of our system of justice. >> thank you for that -- for your answer. judge, you know, i actually agree that your judicial record strikes me as pretty much in the mainstream of judicial

decision-making by district court judges and by court of appeals judges on the federal bench. and while i think what is creating this cognitive discy dense for many of us and for many of my constituents who i've been hearing from is that you appear to be a different person almost in your speeches and in some of the comments that you made. so i guess part of what we need to do is to try to reconcile those, as i said earlier. you said that -- i want to pivot to a slightly different subject and go back to your statement that the courts should not make law. you've also said that the supreme court decisions that a lot of us believe made law actually were an interpretation of the law. so i would like for you to clarify that. if the supreme court in the next few years hold s that there is constitutional right to same-sex

marriage, would that be making the law, or would that be interpreting the law? i'm not asking you to classify -- excuse me, i'm not asking you to prejudge that case or the merits of the arguments, but just to characterize whether that would be interpreting the law or whether that would be making the law? >> nsenator, that question is s embedded with its answer, meaning if the court rules one way, it's making law that forecasts that i have a particular view of whatever arguments may be made on this issue suggesting that it's interpreting the constituon. i understand the seriousness of this question. i understand the seriousness of same-sex marriage. but i also know, as i think all america knows, that this issue is being hotly debated on every level of our three branches of government. it's being debated in congress, and congress has passed an act

relating to same-sex marriage. it's being debated in various courts on the state level, certain higher courts have made rulings. this is the type of situation where even the characterizing of whatever the court may do as one way or another suggests that i ha both prejudged an issue and that i come to that issue with my own personal views suggesting an outcome. and neither is true. i would like at that issue in the context of the case that came before me with a completely open mind. >> forget the same-sex marriage hypothetical. is there a difference in your mind between making the law and interpreting the law? or is that a distinction without a difference some >> oh, no. it's a very important distinction. laws are written by congress. c.

it has -- makes factual findings, it determines in its judgment what the fit is between the law it's passing and the remedy it's that it's giving as a right. the courts when they are interpreting always has to start with what is the constitution say, what is the words of the constitution, how has precedent interpreted those? what are the principles that it has discussed govern a particular situation. >> how do you reconcile that answer with your statement that courts of appeals make policy? >> in both cases in which i've used that word in two different speeches, one was a speech and one was a remark to students, this is almost like the discussion about fundamental, what does it mean to an amental

it means in supreme court theory? >> are you saying it's a theory only lawyers could love? >> not love. but in the context it is very clear that i'm talking about completely the difference between the two judgings and that circuit courts when they issue a holding, it becomes precedent on all similar cases. in both comments, those -- that statement was made absolutely expressly that that was the context of the kinds of policy i was talking about, which is the ramifications of a precedent on all similar cases. when congress talks about policy, it is talking about something totally different. it is talking about making law, what are the choices that i'm going to make in law. in making the law, those are two different things. i wasn't talking about courts

making law. in fact, in the duke speech, i said, i used making policy in terms of its ramifications on existing cases, but i never said in either speech we make law in the sense that congress would. >> let me turn to another topic. in 1996, when you -- after you had been on the federal bench for four years, you wrote a law review article. and this pertains to campaign financing. you said, quote, our system of election financing permits extensive private including corporate financing of candidate's campaigns. raising again and again the question of what the difference is between contributions and bribes. and how legislators or other officials can operate objectively on behalf of the electorate. you said, can elected officials say with credibility that they are carrying out the mandate of a democratic society

representing only the general public good when private money plays such a large role in their campaigns? judge sotomayor, what is the difference in your mind between a political contribution and a bribe. >> the context of that statement was a question about what was perking through the legal system at the time it has been before the courts since buckley -- in buckley -- >> i agree, your honor, my question is, what in your mind is the difference between a political contribution and a bribe? >> the question is a contributor seeking to influence, there are situations in which elected officials have been convicted of taking a bribe because they have agreed in exchange for a sum of

money to vote on a particular legislation. the difference between w the fact that the law says you can do this does not mean that you, as a person, it should choose to do this. in fact, we operate within the law. you should not be a lawbreaker. but you should act in situations according to that sense of what is right and wrong. the was a recent case that the supreme court considered. the judge was given an extraordinary amount of money by

a campaign contributor, dwarfing everything else in his campaign in terms of contributions. it was a very expensive campaign. terms of contributions and very expensive campaigns -- >> that was not a direct contribution to the judge, was it? >> it wasn't a direct contribution, but it was a question there where the supreme court said the appearance of impropriety in this case would have counselled the judge to get off -- >> let's get back to my question, if we can. last year, president obama set a record in fund raising from private sources raising a unprecedented amount of campaign contributions. do you think given your law review article that president obama can say with credibility that he's carrying out the mandate of a democratic society?

>> that wasn't what i was talking about in that speech. -- >> what i'm getting at is, are you basically painting with a such a broad brush when it comes to people's rights under the first amendment to participate in the political process, either to volunteer their time, make any kind of contributions and make financial contributions, do you consider that a form of bribery or in any way improper? >> no, sir. >> thank you for your answer. >> in the short time we have remaining, let me return to the new haven firefighter case briefly. as you know, two witnesses i believe will testify after you're through and i'm sure you'll welcome being finished with this period of questioning, a lot of attention been given to the lead plaintiff, frank richie, who is dis lexic.

i was struck on july the 3rd in the new york times when they featured another firefighter who will testify here today and that was benjamin vargas, the son of the puerto rican parents and found himself in the odd position to say the least, of being discriminated against based on his race. based on the decision by the circuit court panel that you sat on. the closing of the article, because lieutenant vargas, who hopes to be captain vargas as a result of the supreme court decision because he scored sixth on the competitive examination, at the very last paragraph in this article, it says gesturing

towards his three sons, lieutenant vargas explained whi he had no regrets. i want to give them a fair shake, to get a job on the merits. not because they are hispanic or to fill a quote ta. he said what a lousy way to live. that's his testimony. i want to ask in conclusion, do you agree with chief justice john roberts when he says the best way to stop discriminating based on race is to stop discriminating based on race? >> the best way to live in our society is to follow the commands of the constitution. provide equal opportunity for all. and i follow what the constitution says that it's how the law should be structured and how it should be applied to whatever individual circumstances come before the

court. >> with respect, judge, my question, do you agree with chief justice john roberts statement or do you disagree? >> the question of agreeing or disagreeing suggests an opinion on what the ruling was in the case he used it in. and i accept the court's ruling in that case. and that was a very recent case. there's no quarrel that i have, no disagreement, i don't accept that in that situation that statement the court found applied. i just said the issue is a constitutional one, equal opportunity for all under the law. >> i understand that you might not want to comment on what chief justice john roberts wrote in an opinion, even though i don't thing he was speaking of a specific case but rather an approach to the law to treat us as equal individuals with equal rights. let me ask whether you agree with martin luther king, dreamed

of a day when his children would be judged not by the color of their skin, but by the content of their character. do you agree with that? >> i think every american agrees with that. >> amen. yield back, mr. chairman. >> we're going to go to senator specter, who a long-time member of the committee and most senior members here. and i would once senator specter's questions are finished, we'll take a very short break. does that work for you, judge? >> it most certainly does. senator specter is recognized for up to 20 minutes. >> thank you, mr. chairman. judge sotomayor, you have been characterized as running a hot

courtroom, asking tough questions. we say popping out of the supreme court opinions from time to time statements about pretty tough ideologue cal battles in the conference room. justice scalia was quoted as saying, the court must be living in another world, busy designing a constitution for a country i do not recognize. referring to a woman's right to choose and roe v wade, a fundamental rule of judicial restraint requires us to avoid reconsidering roe cannot be taken seriously. do you think it possible that if confirmed, you will be a litigator in that conference

room, take on the idea logical battles that pop up from time to time from what we read in their opinions? >> i don't judge on the basis of ideology. i judge on basis of the law and my reasoning. that's how i have imported myself in the circuit court. when my colleagues and i in many cases have initially come to disagreeing positions, we've discussed them and either persuaded each other, changed each other's mind and worked from the starting point of arguing, discussing, exchanging perspectives on what the law commands. >> perhaps you'll be tempted to be a tough litigator in the court, time will tell if you're confirmed if you have some of those provocative statements. let me move on to a case which you have decided.

you have been reluctant to make comments about what other people have said. but i want to ask you about your view as to what you have said. in the case of riverky, which involved the question, which is very important to matters now being considered by congress on climate control and global warming. you ruled in the second circuit that the best technology should be employed, not the cost benefit. supreme court reversed 5-4. saying it was cost benefit. could we expect you to stand by your interpretation of the clean water act when if confirmed you get to the supreme court and can make that kind of a judgment because you're not bound by precedent? >> i am bound by precedent to the extent that all -- entitled

to the respect. it -- to respect under the doctrine of stare decisis. to the extent the supreme court has addressed this issue in its per missibility under the clean water act, that's the holding i would apply to any new case and the framework established is the framework i would employ to new cases. >> let me return to a subject i raised yesterday, butperspectiv. that is the issue of the supreme court taking on more cases. in 1886, there were 451 cases decided by the supreme court and 1985. 161 signed opinions and in 2007 only 67 signed opinions. the court has not undertaken

cases involving circuit splits in the letter i wrote to you, which will be made part of the record, listing a game circuit splits and the problems that that brings when one circuit decides one way, another circuit another. and the other circuits are undecided and the supreme court declines to take cases. do you agree with what justice scalia said dissenting where the court refers to take a key circuit split that when the court decides not to quote, it seems to me, quite irresponsible to let current chaos prevail with other courts not knowing what to do, or stated differently, do you think supreme court has time to and should take up more circuit splits? >> it does appear that the

supreme court's docket has lessened over time, the decisions its addressing. because of that it certainly does appear that it has the capacity to accept more cases. and the issue of circuit split is one of the factors that the courts own local rule set out as a consideration for justices to think about in the search process. so in answer to your question, direct answer is yes, it does appear that it has the capacity. >> the current rule in the supreme court is that petitions for -- there is a