justices have extraordinary power over some of the most intimate aspects of the lives of american citizens. it is not surprising at all that the nomination and confirmation of a supreme court justice is such a widely anticipated and widely covered offend. nine men and women have enormous responsibilities and those of us tasked with voting on the confirmation of a nominee have a significant responsibility as well. this is clearly one of the most consequential things that one does as a united states senator. i am humbled to be given this rule by the people of wisconsin. the ultimate responsibility of the supreme court is to safeguard the rule of law, which defines us as a nation and protect us all. in the past eight years, the supreme court has paid -- has played a crucial role in checking some of the administration's most egregious departures from the rule of law. in cases arising out of actions taken by the administration

after september 11, the court has said you have gone too far. it said no to the bush administration's view that it can set up a lot free zone at guantanamo bay. it said no to the administration's view that it could hold a citizen of steven -- in the united states indefinitely without any access to a lawyer. it said no to the administration and to congress when they tried to strip the constitutional right of habeas corpus from prisoners held at guantanamo these were courageous decisions. in my opinion, they were correct decisions. they may plan, as justice o'connor wrote in the decision of 2004, a state of war is not a blank check for the president when it comes to the rights of the nation's citizens. these were all close decisions. some decided by a 5 to 4 vote.

that underscores the unparalleled power that each supreme court justice has. one of the most important qualities that a justice must have is correct. courage to stand up to the president and congress in order to protect the constitutional rights of the american people and preserve the rule of law. and i have touched on the crucial recent decisions of the court in the air -- in the area of executive power. the court rejected racial discrimination in education. it guaranteed the principal of one-person, one-vote. it made sure that even the most poor person in the country can be represented by counsel. it make sure that newspapers cannot be sued for libel by public figures for merely making a mistake. it protected the privacy of telephone conversations from eavesdropping. it predicted an individual's right to present -- to possess a firearm.

it made these decisions by interpreting and applying open and language in our constitution. phrases like equal protection of the law, due process of law, freedom of the press, unreasonable searches and seizures, and the right to bear arms. senator feinstein just suggested these momentous decisions were not simply the result of an umpire calling balls and strikes. easy cases where the law is clear almost never make it to the supreme court. great constitutional issues that the supreme court is called upon to decide require much more than the mechanical application of universally accepted legal principles. that is why justices need great legal expertise. they also need wisdom, judgment, understanding of the impact of their decision before them and the country around them from new york city to small towns like boehner, wisconsin. they need a deeper appreciation of liberty and democracy.

that is why i suggest to everyone watching today, that they be a little weary of a phrase that they are hearing at this hearing. judicial activism. that term really seems to gloss all usefulness, particularly since so many ruins of the conservative rule emerge -- and insert a majority can be fairly described as activist in their willingness to override the intent of congress. at this point, perhaps we should all except that the best definition of a judicial activist is a judge who decides a case in a way you do not like. each of the decisions i mentioned earlier was undoubtedly criticized by some one at that time it was issued and maybe even today as being judicial activism. some of them, are among the most revered supreme court decisions in modern times. mr. chairman, every senator is entitled to ask whatever questions he or she wants at these hearings and to look at

whatever factors he or she finds significant. i hope judge sotomayor will answer all questions as completely as possible. i will have questions of my own on a range of issues. senators did ask tough questions on the most recent nominations. i expect nothing less from my colleagues. i'm glad, however, that judge sodomite or will have an opportunity to answer some of the unsubstantiated charges that have been made against her. one attack is the suggestion that she will be biased against her litigants because of racial and ethnic heritage. discharge is not based on anything in her judicial record. there's absolutely nothing in the hundreds of opinions she has written to support it. that long record, which is obviously the most relevant evidence we have to evaluate her demonstrates a cautious and careful approach to judging. a few lines from a 2001 speech taken out of context have

prompted some charges that she is a racist. the speech is actually a remarkable thoughtful attempt to grapple with difficult issues not often discussed by judges started out as a judge's personal background of sector judgment? she concludes her speech by saying the following. i reminded each day that i render decisions that affect people concretely and that i owe them constant and complete vigilance in checking myself and perspectives in insuring that my limited capabilities permit me that i've reevaluate them and change the circumstances in cases before me require. these are the words of a thoughtful, humble, and self aware judge. it seems to me that is a quality we want in our judges. judge sotomayor is living proof that this country is moving in

the right direction on the issue of race. the doors of opportunity are finally starting to be open to all of our citizens. i think the judge's nomination will inspire callous children to dream higher. that is something that we should all celebrate. i welcome and congratulate you. i look forward to further learning that she has the judgment and coverage to serve with distinction on our nation's highest court. thank you, mr. chairman. >> thank you very much. i will recognize senator kyl. >> thank you, mr. chairman. i would hope that every american is proud that a hispanic woman has been nominated to sit on the supreme court. in fulfilling our advice, we must evaluate her fitness to serve on merits, not on the basis of our ethnicity. with a background that creates a case for nomination, the primary

question she must address is her understanding of the role of an appellate judge. from what she has said, she appears to believe her role is not constrained to objectively decide who wins based on the weight of a law, but rather her and her -- who in her personal opinion should win. the factors that will influence our decision apparently include her gender and heritage in for a legal concepts that give her creative juices. what is the traditional basis for judging in america? for 220 years, presidents and the senate have focused on appointing judges who are committed to putting aside their biases and prejudices and applying law to fairly and impartially resolve the dispute between parties. this principle is universally recognized and shared by judges across the ideological spectrum.

a judge on the ninth circuit explain this in the same venue or less than 24 hours earlier, judge sotomayor made her now famous remarks about the wise latina woman making better decisions than other judges. he described the instructions to give to jurors. as jurors, recognize that you might have some biases or purchases. recognize that it exists and determine whether you can control it so that you can judge the case fairly. if you cannot set aside those prejudices', biases, and passions, you should not sit on the case. and then the judge said, the same principle applies to judges. we take an oath of office that you swear to do justice to both the poor and the rich. i was startled by its significance. i have my oath hanging on the wall of the office to remind me

of my obligations and although i am a latino judge, as i judge cases, i try to judge them fairly. i remain faithful to my oath. what he has said has been the standard for 220 years. it correctly describes the proper role for a judge. unfortunately, a very important person has decided it is time for a change. time for a new kind of judge. what will apply a different standard of judging, including employment of his or her empathy for one of the parties to the dispute. that person is president obama. the question before us is whether his first nominee to the supreme court follows his new model of judging for the traditional model articulated by the judge. president obama in opposing the nomination of cheese -- chief justice roberts said "volunteer is to legal precedence will

dispose of 95% of the cases that come before a court, what matters on the supreme court are those 5% of the cases that are truly difficult. a language of the statute will not be perfectly clear, legal process alone will not lead you to a decision." how does president obama proposed judges deal with these are cases? does he want them to use judicial precedent in other accepted tools of interpretation that judges have used for centuries? president obama says "in those difficult cases, the critical ingredient is supplied by what is in the judge's hard." everybody should have empathy. in certain situations such as sentencing, it may not be wrong for judges to be empathetic. the problem arises when empathy and other biases that are in

the judges are become the critical ingredient. i respectfully submit that president obama is simply outside the mainstream in his statements about how judges should decide cases. i practiced law for almost 20 years before every level of state and federal court, including the u.s. supreme court. never once did i hear a lawyer argued that he had no legal basis to sustain his client's position so that he had to ask the judge to go with his gut. if judges routinely started rolling on the basis of their personal feelings, the entire legitimacy of the judicial system would be jeopardized. the question for this committee

is whether judge sotomayor believes with president obama's theory of judging or whether she will take seriously the oath of her respective office. many of her public statements suggest that she may indeed allow or even embrace decision making based on our biases and prejudices. the wise latnina woman quote suggests that she endorses the view that experience base biases should guide her when rendering a judicial opinion. this stands in stark contrast to the judge's view that i outlined. she posits that there is no objective stance, but only a series of perspectives. no escape from choice in judging. she claims that the aspiration of impartiality is just that. it is an aspiration because it denies the fact that we are by

our experience is making different choices than others. no neutrality, no impartiality in judging. isn't that what the judicial oath expose of the requires? judge sotomayor clearly rejected the notion that judges should aspire to an impartial brand of justice. she has already said that it will affect the outcome of for cases. it is a serious issue. it is not the only indication that judge sotomayor has an expansive view of what a judge may appropriately considered. in a speech, she endorsed the idea that american judges should "use good ideas found ins of that america does not lose the laws and constitution. additionally, the vast expanse of foreign judicial opinion and practices for what one might draw simply gives activist judges cover.

you can understand my concern when i hear judge sotomayor say that unless judges take it upon themselves to borrow ideas from foreign jurisdiction, america is going to "lose influence in the world." that is not a judge is concerned. some people will suggest that we should not read too much into her speeches and articles, but the focus should be on her judicial decisions. i agree. her judicial record is an important component of our evaluation. i look forward to hearing why the supreme court has vacated 80% of her opinions that have reached that body by a total vote count of 52 to 19. we cannot simply brushed aside her [unintelligible] she has been operating under the restraint influence of an operating authority.

before we can faithfully discharge our duty to advise and consent, we must be confident that judge sotomayor is absolutely committed to setting aside her biases and impartially deciding cases based on the rule of law. >> senator chuck schumer will be recognized for five minutes. we will reserve his other five minutes for later on when we will be introducing judge sotomayor. >> thank you, mr. chairman. i want to welcome judge sotomayor.

we are so proud of you in new york your whole family is exceptionally proud to be here today to support this historic nomination. our presence here today is about a nominee of who is extremely well qualified with experience on the district court and appellate court benches that is unmatched in recent history. it is about a nominee who has offered opinion after opinion that is smart, thoughtful, and judicially of modest. she has trouble -- she has stellar credentials bridge as toys been nominated to the bench, gone through confirmation hearings with bipartisan support most important, judge sotomayor's record speaks to judicial modesty, something that our friends on the right have been clamoring for in a way that no recent nominees has.

it is the judicial record more than personal background that accurately measures how modest a judicial nominee will be. there are several ways of measuring modesty in the judicial record. judge sotomayor more then measured up to each of them. she puts rule of law above everything else. given her extensive and even handed record, i am not sure how many -- how any member of this panel can seriously suggest that she comes to the bench with a personal agenda. you do not come to the bench with a record number of dissents. instead, a record shows that she is in the mainstream. she has agreed with republican paul -- republican colleagues 95% of the time. she has ruled for the government in 83% of immigration cases.

she has denied race claims in 83% of the cases. she has split evenly on employment cases between employer and employee. second, -- this is an important point because of the unique experience of the district court. she tells the release into the facts of each case. she trusts that an understanding of the fact will lead ultimately to justice. i would ask my colleagues to do this. examine a random sampling of for cases in a variety of areas. in case after case, she rolls up her sleeves, learned the facts, applies the law to the facts, and comes to a decision in respect of of your inclinations or personal experience. in a case brought by plaintiffs who claimed that they had been moved from a plane because of race, she dismiss their case.

she upheld the first amendment right of a prisoner to wear religious beads under his uniform. in hot-button cases such as professional sports, she carefully appears to the facts before her and upheld the nfl's ability to do certain things. third, judge sotomayor has viewed carefully to the text of statutes, even when doing so results in rulings that go against sympathetic litigants. in dissenting from an award of damages to injured plaintiffs in a maritime accident, she wrote, we start with the assumption that it is for congress, not the federal courts to articulate the appropriate standards to be applied as a matter of federal law. mr. chairman, just four short years ago, then judge robert sat with judge sotomayor who is sitting, and told us that his

jurisprudence would be characterized by modesty in humility. he illustrated this with the now well-known quote. judges are like umpires. umpires do not make the rules. they apply them. he was and is a supremely intelligent man with impeccable credentials. many can debate whether his four years on the supreme court, he actually called pitches as they come, or whether he tried to change the rules. any objective review of judge sotomayor's record on the second circuit leaves no doubt that she has simply called balls and strikes for 17 years for more closely than chief justice roberts has during his four years on the supreme court. more important, if judge sotomayor continues to approach cases of the supreme court as she has for the past 17 years, she will be actually modest judicially. this is because she does not

adhere to a philosophy that dictates results over facts that are presented. in conclusion, if the number one standard that conservatives use in apply his judicial modesty and humility, no activism on the supreme court, they should vote for justice of the my or unanimously. i look forward to the next few days of hearings and to judge sotomayor's confirmation. >> i'm going to recognize senator grahaman. >> i have learned something already. we will see how the standard works. no republican would have chosen you. that is just the way it is. we would have picked miguel estrada.

i do not think anyone on that side would have voted for him, who is a honduran immigrant who came to this country as a teenager and graduated from columbia. that is just the way it was. he never had a chance to have this hearing. he was nominated by president bush to the d street -- the d.c. circuit court of appeals. he never had this day. the hispanic element is important, but i do not want it to be lost. having said that, some of my colleagues on the other side voted for judge roberts and alito, knowing they would not have chosen either one of those. i will remember that. unless you have a complete

meltdown, you are going to get confirmed. i do not think you will, but the drama has been created here and it is interesting. my republican colleagues to vote against you, i assure you, can vote for a hispanic nominee. they just feel honored by your speeches and by some of the things that you have said in some of your cases. having said that, i do not know what i'm going to do yet. i do believe that you as an advocate, you took on some cases that i would have loved to be on the other side of. your organization advocated taxpayer funded abortion and said to deny a poor black woman medicaid funding for an abortion was equivalent to the dread scott case. that is a pretty extreme thing to say, but i think it was hard

sell. i would look at it the other way. to take my taxpayer dollars in providing abortion that i disagree with is pretty extreme. there are two ways of looking at that. he were a prosecutor, but your organization argued for the repeal of the death penalty. your organization argue for quotas when it came to hiring. there can be no more liberal group, in my opinion then the puerto rican legal defense fund in terms of advocacy. my point is, i'm not going to hold it against you or the organization for advocating a cause for which i disagree. that makes america a special place.

i would love to have been on those cases on the other side. now, when it comes to your speeches, that is the most troubling thing, to me because that gives us an indication when you are able to get outside of the courtroom, this comment has been talked about a lot. if i had said anything remotely like that, my career would have been over. that is true of most people here. you need to understand that. i look forward to talking to you about that comment. does that mean that i think you are racist? no. it bothers me that somebody wearing a robe takes the rope off and says that day -- their experience makes them better than somebody else. i think your experience can add a lot to the court, but i do not think it makes you better than anyone else.

when i look in your record, there's a lot of truth to what senator chuck schumer said. i do not think you have taken the opportunity on the circuit to be a cause-driven judge. when we're talking about is what we do when it comes to making policy. i am pretty well convinced i know what you're going to do. you are truly going to decide cases differently than i would. that brings me back to what i'm supposed to do knowing that. i do not think anybody here work harder for senator mccain and i did. president obama 1. -- president obama won. if i apply senator obama's standard to your nomination, i would not vote for you. the standard that he articulated would make it impossible for anybody with my view of the law and society to vote for somebody with your activism and background when it comes to

judging. he said something about the 5% of the cases that were driven by. he said something to the effect in those difficult cases, the critical ingredient was supplied by what is in the judge's heart. that to me is an absurd and dangerous standard. maybe something good could come out of these hearings. if we start applying that to nominees, it will ruin the judiciary. i have no idea what is in your heart anymore than you have an idea of what is in my heart. i think it takes us down a very dangerous road as a country when we start doing that. there was a time when someone like canton and scalia and ruth bader ginsburg got more than 95 votes.

that is no mystery. there is some aspect of you that i am not sure about that gives me hope that you are not going to go down the road when it comes to the war on terror. we will talk about that later on. generally speaking, the president has nominated someone of good character, someone who has lived a very full and fruitful life who is passionate from day one from the time you got a chance to showcase to you are. use stood up and stood out. you have been a strong advocate. you will speak your mind. the one thing that i am worried about is that if we keep doing what we're doing, we're going to deter people from speaking their mind. i want you to be able to speak

your mind. when you gave these speeches as a sitting judge, that was disturbing to me. i want lawyers who believe in something and willing to fight for it. i do not want a young lawyers of this country feeling like there are certain clients they can't represent because when they come before the senate, it will be the end of their career. i do not know how i'm going to vote. my inclination is that elections matter. i am not going to be upset with any of my colleagues. in many ways, what you have done in your legal career and the speeches you have made give me great insight as to where you will come out on the 5% of the cases. president obama won the election. i will respect that. when he was here, he set in

motion a standard that was more about seeking the presidency than being fair to the nominee. when he said the critical ingredient is supplied by what is in the judge's heart, that said i'm not going to vote against my face because i'm running for president. we have a chance to start over. i hope we will take that chance and you will be asked hard questions my belief is that you will do well. whether or not i agree with you on the big themes of life is not important. the question for me is, have you heard the right to be here. and if i give you this road to put you on the supreme court, died believe that the end of the day, you will do what you believe is best. you live coverage and be fair. good luck. >> thank you. bret: senator lynsey rdsey grah

raising questions about the speeches and the writing. that quote that we have heard a lot of doubt about the latina woman and whether she would have a better sense of things on cases than a white male. also saying that no matter what, this comes down to politics, conservative politics. we could have been in this historic position if miguel estrada had been appointed to the u.s. court of appeals. he was nominated by george review bush in 2001. coming up, we will have more with the all-star panel and we will hear more open statements, including from senator al franken, the newest u.s. senator. .

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[captioning made possible by fox news channel] captioned by the national captioning institute --www.ncicap.org-- megyn: welcome back, everyone. we have 10 down in seven to go. we're making pretty good progress. judge sonia sotomayor will speak with an opening statement probably within the next hour or two. we have seen this breaking down pretty much as expected. on the one side, democrats advocating the president's

stated standard, someone who has empathy. republicans coming out and saying that is completely out of whack with the history on the courts and even with prior nominees, including liberal nominees. just sticking to the law. you have seen that battle on folding. joining us is our all-star panel. steve hayes, juan williams, and chris wallace. juan, let me ask you about russ feingold. she said, i would hope that a wise latina come to a better conclusion that a white male. he came out and said a few lines taken out of context from the

2001 speech are not going to sink this nomination and it is not fair to judge her by those. is he downplaying what we are dealing with here too much? >> he is. what the democrats have to do here is to try to get this off the table. that is what the white house did after it was first disclosed that she made this comment. to not suggest that because of her hispanic descent that she is somehow better than any white male. what was subsequently disclosed is that she said this repeatedly. that is on the table. there is no getting away from the idea that this was a very strong racial comment, if not tucson, a racist comment. do you simply give for the benefit of the doubt and say, she did not quite mean what she was saying, she is simply

suggesting that her experience growing up in the projects, growing up in the minority community gives her the ability to understand the law and how it applies to a rapidly changing demographic in our country better than some white guy like judge roberts? she just brings added elements that might not have been present in the fact that we have had so many white male justices. that is the generous way of looking at it. i must say, that is on the table we have heard about this repeatedly through the morning. bret: did she apologize? how does she handle this question? obviously, she's well-prepared because it is one to be the focus of a number of questions, the statement. how does she stepped away from it? >> i would guess that she does not apologize, but she moves as far away as she can. the problem is, this was in several of her speeches, not

just her speeches. this was not off the cuff. she was giving this as part of her prepared remarks for things have written. with all due respect to senator feingold, these were not lines that were taken out of context. this was in a sense, the theme of the speech and the context of that is what makes it so alarming for republicans to embrace this again and again. it was not a line that she can simply wipe away with her hand. the point she was making. megyn: how important was the comment about applying obama's standard? >> it is very interesting. to a certain degree, you feel as if barack obama is the nominee here and not sonia sotomayor. several of them have been pointing out the obama standard

when he was talking about john roberts. in the 5% of cases where the law is not clear, what is most important is what is in your heart. what he was basically saying was that the obama standard -- he said that it was more about politics and running about president dan legal standard -- was that basically, you were going to vote for justices whose political views, whose positions you agree with -- agree withgraham said a very interesting thing here. it was not so long ago that difference was paid to the choice of a president. when a president one, if you chose somebody who had outstanding qualifications, whether you agree with him or not, you voted for him. antonin scalia, was a very conservative choice, got 95 votes. ruth bader ginsburg was the

general counsel for the aclu. it was not a mystery that she was a liberal. yet, she got overwhelming support. there was a difference that was paid. what graham was saying is that we have to make this a less political. if a liberal president wins, he should be able to get his supreme court nominees as long as he chooses someone who is qualified. megyn: as someone who has covered washington for a long time, who was it? robert bork? >> 1987, rommel -- ronald reagan and robert bork. it was less than an hour, ted kennedy stood up on the floor of the senate and he said, and robert bork's world, women will have to go get back alley abortions. that politicized the court. quite frankly, robert bork did a lousy job in his hearings.

he got into fights. that is the point at which a conservative president appointing a conservative, qualified judge to the court -- the democrats were in the majority and said no. bret: he said, unless you have a meltdown, you will beacons -- you will be confirmed. if republican senators can get her to step back from some of these comments in the speeches and writings, is that a victory for them? is this also laying the groundwork for the next nominee that comes out of the obama white house? what the larger context is, everyone assumes that she is going to be confirmed and have a seat on the court. what comes next? there are some many prospective appointment. everyone is trying to say, what

is the deal here? how do we judge judges going forward? i would say that there has got to be lots of elements that have to do with the identity politics that have become the focus of these hearings. for example, what we heard from senator graham was, i do not have any problem with voting for a recess -- voting for a hispanic nominee. he is putting in line the idea, i understand that elections matter and i understand the fact that you or hispanic matters, but it will not be that her and receive a determinant. he goes back and makes the point. these are minorities never nominated to the court, but from his perspective, these were conservatives who were not given the opportunity. bret: right now, the senate

judiciary committee has gone to recess. we want to check in with carl cameron. your observations? >> they are taking a 10 minute break now. you will see them starting to leave the hearing room behind me. while we talked about what has arrived as a consensus that' sonia sotomayor will be confirmed to the supreme court, by how many republican votes? the obama administration set a goal of about 80, which is to say about half of the 40-member republican majority would be what they would like to see vote for justice sonia sotomayor. he could expect some heat from a the conservative right. republicans have not been as tough on democratic nominees. he did take care to task for

that "wise latina" line. here's a little bit of him taking issue with her assertion that her sex and her ethnicity makes her somehow wiser than others. >> that bothers me when somebody wearing a robe take the roll off and says that their experience makes them better than somebody else. i think your experience can at all ought to the court, but i do not think it makes you better than anybody else. >> he used that homespun personalization to really drive home the point, but he did continually say that the president deserves some level of deference and he will not forget that. that could be considered a signal that he is open to both -- to vote to confirm the nominee. that is what conservatives are so upset about.

they argue that democrats have been taking down republican nominees, but republicans have not been as harsh to the democrats. bret: we talked a little bit about the atmosphere. is there anything we are not seeing in the cameras from the hearing from your vantage point? >> it is very quiet, actually. this is the long part of the process where there are not questions from senators. there is tons of press here. all of the top level pundits are here. they will be spinning out their opinions. one interruption is not a big deal. we're accustomed to having several appear. there are big lines outside for audience members coming outside. thus far, fairly uneventful. most people expect that if there are to be extensive fireworks in the hero more afterward, it

will be with the question and answer session tomorrow morning. bret: thank you, carl cameron. megyn: we understand that after the break, we are going to hear from among others, the freshly minted senator from minnesota, al franken. also, senator arlen specter, a newly turned democrat. he has been in more of these and any other center of the judicial committee. i'm going to ask about shannon bream about the assertion that these are only one or two lines from speeches. we live in answer for you on how judge sotomayor and i wound up wearing the same outfit today.

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bret: we expect president obama to nominate his choice for the surgeon general. the choice will be dr. regina

benjamin. the white house saying that she is well qualified to be surgeon general. this announcement is expected. of course, president obama coming out at a time when the hearings of sonia sotomayor are in a break. we wanted to give you the updated as we continue here. >> i would like to say a few words about our ongoing efforts to reform the health-care system that she will help oversee. we are now closer to the goal of health care reform that we have ever been. over the last several weeks, important committees in the house and senate that have made important an unprecedented progress on a plan that will lower costs, provide better care

for patients, and curb the worst practices of the insurance companies and. it is a plan that will not add to our deficit over the next decade. it is a plan that will not add to our deficit over the next decade. eventually, it will help to lower our deficit by lowering them -- bret: he is talking about the status of the health-care legislation, which is in trouble, depending on the lawmakers you talk to. again, the announcement today that dr. regina benjamin will be his choice for surgeon general. megyn: shannon bream, we were talking earlier about the charge made by senator russ feingold talk about the remark that will dominate the hearing for another couple of days.

the one comment that he cited was from 2001 in a speech in which judge some of my or said that she would owe that a wise latina woman would come to a better conclusion and a white judge. those are a few lines from a 2001 speech taken out of context, according to him. is that the case? >> you know that thousands of pages of documents have come in in response to the senate judiciary committee questionnaire. we found at least four different times where she said a very similar line, if not a word for word pretty has been repeated. even though the white house wanted to explain it away, saying that she may be would have chosen her words differently, it has been repeated verbatim a number of times. i think that will take some explaining. there are some many other things in this record that she has turned in that has yet to come to light, but will probably hit the stage at some point. one has to do with a very first

case she could potentially. she makes it onto the bench. in september, the chief justice has set a date for a case involving a documentary about hillary clinton. they have already heard the case. it deals with whether or not this was a political speech and should be regulated as political finance. it could be her first case. she has had an extensive rusch -- an extensive record with issues of campaign finance. here is something she had to say. "we would never condone private gifts to judge is about to decide a case indicating the gift givers influence." she has a big problem with private donations given to people running for political office. what is the difference between contributions and bribes and how legislators or other officials can operate objectively? i talked to senator lindsay graham and he said that he had a

great concerns about that as well. it is interesting to see. we know how she feels very strongly about acquitted some of these things to bribes permitted could be the first case that she hears an september issue makes it through the confirmation hearings. megyn: jumping around a little bit -- i know that you have looked at these documents. we heard a lot of talk from the panel about some prior nomination processes. in particular, robert bork. we have talked a little bit about the confirmation hearings of clarence thomas, which was the closest in u.s. history. sonia sotomayor has some history with that. she has some history with respect to clarence thomas. tell us about those. >> as you know, there was a point where we got through some of these documents and found a

1987 document that dealt with the legal defense and education fund, where they had specifically taken a position against robert bork. they said, we have joined a number of efforts and coalitions. we feel like he is a threat to the issue of civil rights of latinos. we have made a concerted effort to oppose his nomination. we all know how that ended. of course, there is a history there. she served on the board. it was not just a casual passing connection to that organization, megyn. megyn: clarence thomas is the justice overseeing her circuit. apparently, he made some remarks to the judges in her circuit. there was a question about how she reacted when he came to make those remarks. what do we know about it? >> there was some debate about whether she joined in a standing ovation or applauded for him.

she said he is the justice that oversees my area. i cannot remember her exact word on that. it was a very touchy point. people want to know whether she was standing, seated when he came in. we have indications that seem to indicate that she showed proper deference and she did show respect to him. there is a lot of debate about exactly what happened. she is somebody who could join him on the bench. they could become colleagues. there could be potential awkwardness. megyn: there could. she was asked about this and her confirmation hearing for the court of appeals erred . when asked if she gave applause, she said, i will take the fifth. we could hear more of that as these cross examinations get underway tomorrow. shannon bream, thank you. bret: let's quickly turned to a republican on a the judiciary

committee, chuck grassley, before he heads back into the hearing. sifi wanted to ask you about yor opening statement you raise some questions about statements that she had made. is there any way republicans can stop this nomination? >> i think senator lindsay graham put it better than i can when he said that she will be confirmed unless there is some meltdown that happens. that would be on her part in this entire week of hearings. with 60 democrats in the president having -- we give the president a lot of leeway on today appoint. i think it would be wrong. i think we have a wonderful

opportunity to lay out just exactly whether she is going to be a judicial activist or be a person who is someone leaves bias out of decisions. bret: is it a victory for republicans in of justice -- of judge sotomayor steps back from some of those speeches that have been focused on? >> i hope it is not considered a victory for republicans if she does that. if she is, she is pandering. i hope it is because her firm judicial philosophy and temperament is that she wants to interpret law instead of making law. the reason you are having a lot of republicans raise these questions is because she has been very far out of a lot of speeches she has given, probably more far out on speeches she has given their rulings she has made as a judge.

it is speeches that tend to lead us to believe that maybe she has some biases that will not be left at the courthouse door. bret: thank you. we understand that hearing is getting back underway. we will head down to the hearing. let's go back to the hearings. i think this is senator john cornyn from texas starting his opening statement. >> of course, joined my other colleagues who have noted your stitch -- your distinguished career. and i said your nomination should all make us feel good as americans. people of all origins can work hard to sacrifice and love and the support of their families and achieve great things in america. that makes me feel very good about our country and about the

opportunity it provides to each of us. in the history of the united states, there have only been 110 people who have served on the supreme court. it is amazing to think about that. this means that each and every supreme court nomination is an historic moment for our nation. each supreme court nomination is a time for national conversation and reflection on the role of the supreme court. we have to ask ourselves, those of us who have the constitutional obligation to provide advice, what is the proper direction of the supreme court in deciding how we should vote and conduct ourselves during the course of a hearing? of course, it is always useful to recall our history. the framers created a written constitution to make sure our constitutional rights were

fixed in certain, the state conventions that represented we the people looked at that written constitution and decided to ratify it. the idea was that our rights should not be floating in the ether, but rather be written down for all to see. so we could all understand what those rights in fact are. this framework gave judges a role that is unique in very important. the role of judges -- they are not free to invent new rights as they see fit. rather, they're supposed to enforce the constitution's text, and leaves the rest of to we the people through the elected representatives of the people, such as the congress.

it is my opinion that over time, the supreme court has veered off course established by the framers. the supreme court has invented new rights not clearly rooted in any constitutional text. for example, the supreme court has micromanaged the death penalty recognized in 35 states and by the federal government itself it has announced constitutional rules governing everything from punitive damages to sexual activity. it has relied on international law, which you have heard some discussion about that people have never adopted. the supreme court has even taken on the judge -- on the job of defining the rules of golf. some people have talked about judicial activism.

on the other hand, as you know, inventing new rights, veering off this course of enforcing a written text and pulling ideas out of the ether are far from what the people and acted. as the supreme court has invented new rights, it has often neglected others. this lopsided as troubling to me. many of the original important safeguards on government power have been watered down or even ignored. i believe have been artificially

limited. almost like an written out of the constitution over time. on occasion, judges just have not enforced them, which i believe the american people expected them to do so, what is the future like? where should the supreme court go from here? i think there are two choices. first, the supreme court can try to get us back on course. the court could generate renewed respect for our original plan for government and return us slowly but surely to written constitution in written laws. the supreme court's reason tcent decision on the gun law in washington d.c. is a good example of that. it can further erode the established rights that we have in the text of the constitution.

it could invent even more brand new rights not rooted in the text and not agreed to by the american people. i think the purpose of this hearing is to determine which pass you would take us on if confirmed to the united states supreme court. would you vote to return to a written constitution and laws written by the elected representatives of the people? to help the american people understand which of these paths he would take us down, we need to know more about your record. we need to know more about the legal reasoning behind some of your decisions on the second circuit. we need to know more about some of your public statements related to your judicial philosophy.

to borrow a football analogy, the lower court judges like the quarterback. a few of your opinions do raise questions that i intend to ask you about. they do suggest, i think, the kinds of plays that he would call if you were promoted to the coaching staff. americans need to know whether you would limit the scope of the second amendment and whether we can account -- we could count on you to of hold the fundamental liberties enshrined in the bill of rights. we need to know whether you would have to limit the scope of the fifth amendment and whether you would expand the definition of public use by which government can take private property from one person and

give it to another. we need to know whether you will uphold the plain language. some of your opinions suggest that you would limit some of these constitutional rights. for example in 2001, you argued that there is no objectivity in law. only what you called a series of perspectives rooted in life experience of the judge. in a 2006 speech, you said that judges can and even must change the law and even introduce what you call a radical change. in a 2009 speech, you endorsed the use of foreign law when interpreting the u.s.

constitution on the grounds that it gives u.s. judges good ideas. no one can accuse you of not having been candid about your views. not every nominee is so open about their views. many americans are left to wonder what these various statements mean and what you're trying to get at with these very -- with these various remarks. some wonder whether you are the kind of judge will -- who will uphold the written constitution or welfare us off course. these are some of my concerns. i assure you that you will have every opportunity to address those and make clear which path you would take us down if he were confirmed at the supreme court. >> thank you very much senator white house?

>> welcome. welcome to you and your family. i join many americans who are so proud to see you here today. it is a great country, isn't it? you represent its greatest attributes. your record leaves no doubt that you have the intellectual ability to serve as justice. from the outpouring of support i have experienced, your demeanor, your collegiality is well established. i appreciate your years of working in the trenches of law enforcement. i'm looking forward to learning more about your experience and judgment you are poised to bring to the supreme court. in the last two and a half

months and today, republican colleagues have talked a great deal about judicial modesty and restraint. that point comes when these words become slogans, not real critiques of your record. indeed, these calls for restraint and modesty and complaints about activist judges are often code words seeking a particular type of judge who will deliver a particular set of political outcomes. it is fair to inquire into a nominee's judicial belief. the pretense that republican nominees embody not -- modesty and restraint where the democratic nominees must be activists run starkly counter to recent history. i particularly -- the analogy of

the judge to an umpire who merely calls balls and strikes. if judging where that mechanical, we would not need nine supreme court justices. the task of an appellate judge, particularly on a court of final appeal is often to define the strikes on. within a matrix of constitutional principle, legislative intent, and statutory construction. though he cast himself as an umpire during his confirmation hearings. a well-respected legal commentator as recently reported that in every major case since he became the nation's 17th chief justice, roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the

corporate defendant over the individual plaintiffs. is it a coincidence that this pattern to continue with this quote, has served the interests and reflected the values of the contemporary republican party. some coincidence. for all the talk of modesty and restraint, the right-wing justices of the court have a striking record of ignoring president, overturning congressional statutes, limiting constitutional protections, and discovering new constitutional rights. the first limitation on roe v wade that out right disregards the woman's health and safety. discovering a constitutional right to own guns that the court

had not previously noticed in 220 years. over and over, news reporting discusses fundamental changes in the law. the roberts court has not kept the promises of modesty or humility made when president bush nominated justices roberts and alito. i would like to look for a simple pledge from you in this hearing, that you will respect the role of congress as representatives of the american people, that you will decide cases based on the law and the facts, that you will not prejudge any case, but listen to every party that comes before you and you will respect president and limit yourself to the issues that the court must decide. you will use the broad discretion of a supreme court justice wisely. let me emphasize that broad

discretion. as justice stevens has said, the law sometimes requires the exercise of judgment, a faculty that calls into notions -- calls into play notions about the future impact of the decision. look at our history. america's common-law inheritance is the accretion over generations of individual exercise of judgment. our constitution is a great document that john marshall noted leaves the minor ingredients to judgment to be deduced by our justices from the documents great principles. the liberties and our constitutions have boundaries defined. none of this is balls and strikes. courts have the authority to say with a law is and even

invalidate statutes when they conflict with the constitution. the issue is not whether you have a wide field of discretion. you will. you are not free to act as a knight errant roaming at will in pursuit of your own ideal of beauty or of good as. yet, he concluded, enough in all conscience is the field of discretion that remains. the question for this hearing is, will you bring good judgment to that white feel? will you understand and care how your decisions affect the lives of americans? will you a chance the promises of liberty and justice made by the constitution? i believe that your divorce life experience, your broad professional background, your expertise at each level of the system will bring you that judgment. the life of the law has not been logic.

it has been experience. if your experience brings life to a set of difficult circumstances faced by the less powerful among us,, the family struggling to get by in a neighborhood where the police only come with racheiot jackets, trying to meet and me that month, the man who believes a little differently or looks a little different, or thinks things should be different. if you have empathy for those people in this job, you are doing nothing wrong. the founding fathers set up the american judiciary as a check on the excesses' and as a refuge when those bridges are corrupted or consumed by passing passions. courts were designed to be our guardians against what the federalist papers called those ill humors which the arts of designing men for the influence

of particular conjuncture is sometimes disseminate have serious oppressions of the minor party in the community. in present circumstances, they tend to fall on the poor and voiceless. consider it men of every description should prize what should be fortifying that government. no man can be sure that he may not be tomorrow the victim of a spirit of injustice by which she may be a gainer today. the court room can be the only sanctuary for the little guy with the forces of society are range against him. this is in intended function of the judiciary in our constitutional structure and the embassy that president obama saw in you has a constitutionally proper place in that structure.

if everyone in the court always voted for the prosecution, for the corporation against appointive, and for the government against the condemned, a vital spark of american democracy would be distinguished -- would be extinguished. where the comfortable can sometimes be afflicted. the afflicted find some comfort all under the stern shelter of the law. justices have shown great courage in providing that sanctuary of careful attention, when james bryce called the cool dry atmosphere of judicial determination unless the inflamed passions of the day. i believe your balanced background prepares you well for this constitutional and proper judicial role. i join my colleagues in

welcoming you to the committee. i am looking forward to your testimony. >> thank you. welcome. it is truly an honor to have you before us. it says something remarkable about our country that you are here. he will be treated with the utmost respect and kindness. it will not distinguish, however, that we will not thoroughly probed the areas of concern. there is no question that you have a stellar resume. in fact, other things at into that. -- add into that.

we have a determination that you have a judicial philosophy when our and -- with our founders intended. there is great division about what that means. i also wanted to know that i thought this was your hearing, not judge roberts' hearing. i have a different point of view on that decision. i think our nation is at a critical point. i think we are starting to see cracks. the reason i say that is because i think that the glue that binds our nation together is not our political philosophies. we have very different political philosophies. the thing that binds us together is a trust that you can have fair and impartial judgment in this country. that week, better than any other nation, when we have wrong, how

correct the wrongs of our family -- of our founding. we have instilled confidence that in fact, when you come before it, there is blind justice. that allows us the ability to overlook other areas where we are not so good because it instills in us the confidence of an opportunity to have a fair hearing. i am concerned with some of your statements. i do not know if the statements were made to be provocative or if they are truly heartfelt. i know that some of those concerns will guide my questioning.

i am deeply concerned about your assertion that law is uncertain. that goes completely against what i just said about the role of lobbying the glue that binds us together your praise for an unpredictable system of justice. i think we wanted to be predictable. we wanted to be predictable in its fairness and how cases are viewed. it should not matter which judge you get. it should matter what the law is and the facts are. i'm worried that our constitution might be seen to be malleable and evolving when i as someone who comes from the heartland seems to grasp and hold and the people that i represent seem to grasp and hold it that there is a foundational document and there are statutes that should be the role rather than our opinions.

other statements such as the court of appeals, that is surprising to me. as i look at our founders, the court is to be a check, not a policymaker. your assertion that ethnicity and gender will make someone a better judge -- although i understand the feelings and emotions behind that, i am not sure that can be factually correct. maybe a better judge than some, but not a better judge than others. there is no objective stance, but only a series of perspectives, no neutrality, no escape from choice in judging. what that implies -- the fact that it is subjective implies that it is not objective. if we disregard objective fax,

then we lose the glue that binds us together as a nation. even more important is your questioning of whether the application of impartiality in judging, including personal prejudices' is possible in most cases or is even desirable, is extremely troubling to me. you have taken the oath already twice. if confirmed, you will take it again. i'm going to repeat it again. it has been set once this morning. here is the oath. i do solemnly swear and affirm that i will administer justice without respect to persons and do equal right to the poor and the rich and will faithfully and impartially discharge and perform all the duties incumbent upon me under the constitution and the law of the united states, so help me god. it does not reference for an law anywhere.

it does not reference whether we lose influence in the international community. we lost influence when we became a country in the international community. i think this oath succinctly captures a judge, and i'm concerned about your judicial philosophy. it might be inconsistent with impartial, neutrality that is described. with regard to your judicial philosophy, the burden of proof rests on you. in this case, that burden has been exaggerated by some of your statements and some of president obama's stated intent to nominate someone who was not impartial, but instead favors certain groups of people. during the campaign, he promised to nominate someone who has the heart and empathy to recognize

what it is like to be a young teenage mother. our judges do not have that. you realize how astounding that is? to be african-american, and gay, disabled, or old. most of our judges understand what it is like to the old. centre obama referred to an empty standard when he voted against john roberts. he stated that tough questions can be only determined on one score concerns, once broader concern -- perspectives. i believe that standard is antithetical to the proper role of the judge. the american people expect our judges to treat all litigants equally. that is why lady justice is always depicted blind.

and why aristotle defined law as reason free from passion. we expect a judge to call out balls and strikes. maybe so, maybe not. we certainly do not expect them to sympathize with one party over the other. that is where empathy comes from. you must prove to the senate that you will hear to the proper role of a judge. and only base your opinions on the constitution and when appropriate, treaties. that is your oath. that is what the constitution demands of view. you must demonstrate that he will strictly interpret the constitution and our laws. will not be swayed by your personal biases or your political preferences, which you are entitled to. as alexander hamilton stated,

the peculiar province of the courts. the constitution, however, must be regarded as fundamental law. he further stated it was indispensable in the courts and justice is that judges have an inflexible and uniform adherence to the rights of the constitution. a nominee who does not adhere to the standards necessarily reject the role of a judge dictated by the constitution and should not be confirmed. i look forward to a respectful and vigorous interchange with you during my time to question you. i have several questions that i hope you will be able to answer. i will try not to put you in a case where you have to answer a future opinion. i understand your desire in that regard. i respect it. i think you for being here. i applaud your accomplishments. may god bless you.

>> thank you. megyn: there you have it, senator tom coburn, republic and out of oklahoma. one of his big issues has been to curb abortions and get that partial birth abortion bill passed, which they did successfully. he said, i thought this was your hearing and not the hearing for chief justice john roberts, which took place a few years ago. we have been waiting for dick durbin from illinois. he has been missing in action. he said that he had meetings, according to a capitol hill producer. here he is. let's listen in. >> my friend, senator paul simon raised the following question. you face a much harsher judge in

this committee. that is the judgment of history. that is likely to revolve around the question, did she restrict freedom or expand it. i ask this question with respect to the nominations of chief justice roberts. i think it is an important question of any court nominee. they resolve many of our most significant issues. it is the supreme court that defines our personal right to privacy and decides the restrictions that are being placed on the most personal aspects of our lives. the nine justices decide whether congress has the authority to pass laws to protect our civil- rights and our environment. they decide what checks will exist in war and peace 3 because these issues are so important,

we need justices with intelligence, knowledge of the law, proper judicial temperament, and a commitment to a partial justice. -- >> the officer will remove the person. as i said before, you are a guest of the senate what you are here. everyone is a guest of the senate. judge sotomayor deserves respect. she deserves the respect of being heard. no outbursts will be allowed that might interrupt the ability of the senators or the judge or

of our guests who are sitting here patiently listening to everything that is being said. >> more than that, we need our justices to have an understanding of the real world. we justices whose wisdom comes from life, not just from lawbooks. sadly, this important quality seems to be in short supply. seems to be in short supply. it is a little harder to see home plate from right field. if being a supreme court justice

was as easy as calling balls and strikes, you would not see many split decisions on the court. the recent decision of ledbetter v goodyear tire and rubber is the supreme court putting activism over common sense. should women be paid the same as men for the same work? lilly ledbetter were there at the tire plant -- worked at the tire plant for several years. the jury awarded her a verdict . they said the cheaper -- she filed her discrimination complaint to light. they said that it should have been filed within 100 days of the discriminatory paycheck. that decision defied common

sense. the realities of the workplace is that few employees know what their fellow employees are being paid. a 14-year-old girl was stripped searched because of a false rumor that she was hiding ibuprofen pills. the oral argument revealed a stunning lack of empathy about the eighth grade victim. one of the justices even suggested that being strip search was no different than changing clothes for gym class. although justice ruth bader ginsburg helped her eight male colleagues understand why this research of a 13-year-old girl was humiliating enough to violate her constitutional rights, the majority of the justices ruled that the school officials were immune from liability. the supreme court again overturned a past president and

voted for the first time it was permissible to place restrictions on abortion that does not include a reception regarding a woman's health. you have overcome many obstacles in your life. they have given you in understanding of the daily realities and struggles faced by every day people. you grew up in a housing complex in the bronx. you overcame a diagnosis of juvenile diabetes a dreadf. you earned scholarships to princeton and yale. your first job was an assistant district attorney were you prosecuted violent crime. he went on to work in a law firm representing corporations which gave you and other valuable perspective. you have demonstrated an ability to see both sides of the issues. you earned a reputation as being restrained, moderate, and

neutral. of the 110 individuals who have served as supreme court justices, 106 have been white males. until thurgood marshall's appointment to the supreme court a generation ago, every justice throughout our nation's history had been a white male. president obamas nomination of you to serve as the first hispanic and the third woman on the supreme court is historic. the president knows and we now that to be the first, you have to meet a higher standard. the american people through their elected senators will be asked to judge. >> thank you, judge. enjoy your lunch. when you come back, we will hear

from senator klobuchar, senator specter, senator specter. we will then have an introduction of you. what everyone has really been waiting to hear, we will hear from you. thank you very much. megyn: there you have it here. elisse the first part of the morning wrapped up. dick durbin of illinois coming in a bit late because he had meetings this morning. we heard about her history in terms of her parents and where she went to school and grew up. we have yet to hear from senator specter and senator franken. she's moving around ok for a woman with a broken ankle.

this woman get an award for poker face. she barely cracked a different expression them when she started with. >> her hands were firmly on the table right in front of her. megyn: they did not move. bret: you see her talking to senator leahy and senator schumer. i counted five democratic senators who brought up justice roberts and his statement about a judge being an umpire and judging balls and strikes making that analogy. of course, he is now the chief justice. five democratic senators bringing up justice roberts in this hearing. senator coburn saying, i thought this hearing was about judge sotomayor. megyn: some just said, ok, he

said that would be the standard. when he got to the supreme court, he applied a different standard. he applied his own biases or his own judgments. then you had centers like feingold taking issue with whether balls and strikes should be the way that a judge calls balls and strikes. is that the way that we want justices? bret: let's bring in our panel. chris, were you struck by how much justice roberts is mention in this? >> absolutely. i think it does make some sense. you have competing storylines year. the republicans are trying to say this is an argument about judicial activism versus judicial restraint and republicans like judges like robert to are just umpires with balls and strikes.

the converse side of that was best expressed by dianne feinstein who said, all this talk about judicial activism is a crock and what it basically boils down to is if a judge decides a case in a way you do not like it, that is judicial activism. she did not use this word, but it is a lot about ideology. if you were a liberal, it is a conservative decision, that is activism. if you are a conservatism and it is a liberal decision, that is activism. bret: to try to pay justice roberts as an activist is kind of a big leap, to me. >> i think it is a pretty big leap. if i can make a pedantic point about balls and strikes, there is some subjectivity. it is not as if he is saying it has to be totally objective, but that is the standard. i guess i was struck by just how tough some of the republicans were. very aggressive comments from

senator kyl and lindsay graham about what they were calling these liberal judges. a new kind of judge. senator graham said this was an absurd and dangerous standard that would ruin the judiciary if it was followed in subsequent supreme court nominations. i think those are very tough. megyn: you also heard every time senator kyl saying the entire legitimacy of our legal system would be jeopardized if empathy was king. quote i think a lot of this has to do with the democrats saying that the republicans are holding up a false standard. we see and activism in the form of chief justice roberts. specifically saying in the cases that he ruled on, he has always

ruled on the side of the corporations, always ruling on the side of the government. therefore, this umpire analogy is false. everybody is engaged in a pursuit -- not only was it senator feinstein, but also senator whitehouse saying that all we're talking about is whether the final outcome is good for you, you agree with it or disagree with that. megyn: the other thing i remember chief robert saying -- chief justice roberts saying is, i see my job as that as -- an umpire, but he also said, i want to be assured that if you have a little guy come before you that sometimes you're going to rule for the little guy and he said, if the little guy deserves to win, i will vote for the little guy. if i -- if he does not, i'm going to vote for the

corporation. how do we get to that point where that is even in question? you look at his oath we're talking about that the judge will have to take. i will faithfully and impartial way the discharge of the duties incumbent upon me. i will do equal right to the poor and the rich. is that not completely consistent with what justice roberts said? >> don't you think that -- would it be fair to say that in an awful lot of these cases, before you even hear all the arguments being made, you kind of know what side each of the judges is going to line up on. you can say absolutely that they should be open minded, but certainly four of the judges on the supreme court had to line up one white and four of the justices tend to line up another way.

and that's a problem that she has. it will be interesting to watch starting with her opening statement. the point is, it seems to a certain degree that for all the talk about philosophy, four people see the world 1 way @ four people see it in the other way. megyn: chief justice john roberts has one approach to judging and she might have another. in other words, isn't there a reason you can tell how the conservatives are going to come down because one assumes that the liberals might be using more empathy than perhaps the conservatives are? >> i'm not sure whether it is that or the way they view the world or having a liberal outlook, for instance on the 13th hero -- the 13-year-old girl. why are so many of these cases 5 to 4? megyn: i think that is too cynical of a condemnation of our

supreme court. bret: what about the strength of the republican statements about opposing sonia sotomayor? >> i think so. if you go back to what lindsay graham said and he was very clear about how discomfited he was by the idea that he is a white man, if he shows up, if he is my to be treated fairly. bret: we're going to be watching these hearings. more with the panel and more speeches, including sonia sotomayor's opening statement. we will also update you on the other stories happening here in washington and around the world drif. to keep you ahead of this rapidly evolving world?

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megyn: you could argue they were few and far between, but there were a few moments of drama this morning, including a couple of protesters who were promptly arrested. we are told by those who are inside the room that they were anti-abortion protesters. that includes the second guy. it was hard to make out what he was saying. they were both scolded promptly

by chairman leahy. carl cameron, those two gentlemen are now under arrest. >> yes, and it is not too surprising. and not surprising in terms of the tone of the democrats, largely in support. we still will hear from four more. republicans a shilling some deep concerns and letting her know that they will drill her -- grill her. one of the things people like to know is the judge's temper met and whether they have the patience and personal constitution to analyze the u.s. constitution. she seweshowed a lot of patience today when senators were throwing it at her. this is going to be the theme.

when the q&a begins tomorrow, we will see a little bit more of how she will deal with the real heat. we should not expect her to necessarily address anything that the republicans have said. although we are told that she has already repudiated the that empathy my trumpet the constitution. certainly factors in. and they determined what number of republican votes she gets. as you have already heard, there's little doubt that she will ultimately be confirmed. megyn: why are they one dream the imbalance on the committee? >> that is the nature of the way all of these committees are proportioned. there's no fast rule.

the majority just to determine whether one person has an impact on one or two. this has the added complication of arlen specter of pennsylvania, who now sits second to last in seniority. there are a couple of new people on the d-side. megyn: thank you. bret: fox news senior judicial analyst judge the pnapolitano. >> i was surprised at the pot shots taken at chief roberts. republicans want to show that when a liberal democrat is in the white house, you get a judicial nominee that holds

these views. the democrats want to argue that elections have consequences and this is what president obama promised. this is the kind of intellectual wrecks to riches that ought to be on the court. bret: how tough is this judge for republicans who are obviously dealing with rulings from judge sotomayor that may be mainstream, or perceived that. but her speeches have been not mainstream. >> that is the thing. their argument will probably be, your speeches have pushed the zerenvelope. but what you have done on the benches in the mainstream of american legal thinking. on the liberal side, for the most part, but on the mainstream of american legal thinking pretty have done that in a federal appellate court, where

your subject to appeal to the supreme court. will your extreme views that we hear in your speeches to law students seep into your opinions on the court when you are on the court of last resort? there's no way that anybody could know that. my guess is, yes, she is a human being. she had strong opinions. this is the time and place for those opinions, even though she will be only one of nine votes. bret: one thing that surprised me from our special last night was that you were ahead of judge sotomayor at princeton and you always have a great head of hair. >> [laughter] no comment. megyn: that surprised you? coming up, we will check in with major garrett to find out how the white house is reacting to all of this.

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megyn: we will get back to the

sonia sotomayor coverage in just a minute. first, a quick update. president obama appears to be losing support from americans on health care reform. check out this new poll, which rose 49% of voters oppose the health care reform being proposed by president obama. a 6% favored it. the tide is turning from two weeks ago, when 50% of voters supported the president's agenda. that news comes as the senate resumes debate on this issue. there are serious issues about whether this agenda can now be pushed through. james rosen is live in washington. good afternoon. health care is always on americans' minds. the issue is in the forefront again today as president obama announced his new surgeon general. >> that is right.

the president chose dr. benjamin, who has a family practice. the president made marks that appeared calculated to reassure his own base that health-care reform is going to happen in his first term. we have seen a number of indications that the goal is moving away from the president because the democrats themselves cannot agree. we have learned there will be no senate finance committee marks up this week. the house was supposed to roll out its plan today. that is not going to happen. [captioning made possible by fox news channel] captioned by the national captioning institute --www.ncicap.org-- >> we are going to get this done. inaction is not an option. for naysayers and cynics who think this is not going to happen, do not bet against us. >>