try align and discover a world of digestive peace. [captioning made possible by fox news channel] captioned by the national captioning institute --www.ncicap.org-- megyn: this is it. it is finally time. after two months of anticipation, senators get their chance to question judge sonia sotomayor. good morning, everyone. bret: welcome to washington. the supreme court nominee likely to face tough questions today from republicans. gop lawmakers will raise concerns about judicial activism, among other things. yesterday she told senators that the judge -- job of a judge is to apply the law, not make it. today she will answer skeptics. here is what we can expect today.

members of the senate judiciary committee will begin the first round of questioning for judge sotomayor. first, pat leahy, chairman from vermont. followed by jeff sessions. each senator will be allotted 30 minutes. keep in mind that there are 19 members of the judiciary committee. the first round of questioning is not expected to wrap up today. megyn: other headlines this morning, the house is expected to release a massive health care bill today. nancy pelosi says that she expects a vote by august recess, but anticipates big differences on how to pay for this thing. police in florida say that more arrests could, in the murders of byrd and melanie billings. they adopted one dozen children with autism and down syndrome.

they were shot multiple times by intruders in their home. police have made four arrests, but they believe that six to eight people could be involved. videotape shows a man in a mask. they were in and out of the home in under 10 minutes. scrub began to -- scrub thbed again, the endeavor did not lift off last night. is that during special report? bret: indeed. megyn: you cannot get away from that launch. the mission has been grounded for a month. if it does not get off the ground soon, take it up with bret. it may not be until the end of july before the king of supplies

to the space station. bret: back in washington, hearings are expected to get under way in about 27 minutes from now. fox coverage for you today. shannon is looking at the relevant issues that we will be hearing more about soon. we begin with our chief political correspondent, carl cameron, with a preview of what we can expect from the senate committee. carl? >> we thought we would give you an opportunity to give you a feel for what is going on here for all of us covering it from the room, 216, one of the coldest rooms in washington. in the front you can see the family members of the nominee. mrs. sotomayor's mother has already taken her spot. to give you an idea of how cold it is in here with the air conditioning, some people say to bring blankets.

the public are lined up around the building, in the back there is space for just a few. at the top, there is our producer, that is where i usually am. the room is already getting crowded. 30 minutes per senator, they will be filing in at the last second. al franken, arlen specter right there -- we will say hi to him for you, megyn. the nominee can see the scowling, hear the sighing, they are that close. people do not realize. if they are worried about things getting tedious, they have timers and we will show that to you throughout the day. our producer will be watching the clock as well. a little bit like the zoo. the press is lining the hall, like an operating room theater, we can watch the proceedings.

we are about 30 minutes away. this would be the day that we will have an opportunity for democrats -- there will be an opportunity for democrats to support her and for republicans to pick at the notion that subjective experience is valuable in judging. look particularly for tough questions from charles grassley and jeff sessions, they will be taking the charge. the supportive side from the democrats, pat leahy is the chairman, as well as chuck schumer from new york. bret: that is fantastic. i love the walk and talk perspective. we talked about judge sotomayor and a broken right ankle that she keeps propped up on the table behind you. any word on whether it has cramped up on her?

lift it up for us. megyn:wow. >> that is the leg stand. a cushion, a notebook, and some sort of apparatus. we can expect about 4.5 hours for the first session, one hour for lunch, and if everything goes according to plan, they will be done by around 6:00. fantastic bret:. thank you, carl -- bret: fantastic. thank you, carl. megyn: south carolina senator, lindsey gramm, expressing concerns about this nominee. >> the drama created here is interesting. my republican colleagues that voted against you, i assure you, they could vote for a standing nominee, but they feel honored by your speeches and some of the things you have said, as well

as -- they feel unnerved by your speeches and some of the things you have said, as well as some of your cases. megyn: he is with us this morning. you took some hits in the press for saying that sonia sotomayor would sail through. some suggested that you should not treat this like a foregone conclusion. are you sorry that you said that? >> i am never sorry to be honest. she would have to lose 10 democrats and every republican would have to vote against her. i was in a gang of four, we boarded changing the senate rules to require a simple majority. the minority has the right to hold up the nominee. i do not see an extraordinary circumstance developing here. i am telling people levelland. so far as i see it, she is going to get a lot of votes. tell me if i am wrong.

megyn: talking yesterday about the barack obama standard, and that he would not vote for her by his standard -- you would not vote for her by his standard. ideology is not how the court has worked in the past. why not use senator obama's standard against this nominee, then? >> i think it would be disastrous for the country. he said that to get to the last mile of a marathon is more than qualification and adherence to precedent. at the end of the day you have to look at the heart of the judge. i will have a discussion with judge sotomayor. she filed a brief saying that if you deny a poor woman a taxpayer funded abortion, you are treating her like dred scott,

enslaving her. i want to know what she thinks about the unborn. you start talking about the heart and natural law, senator obama tried to make up a standard to justify a vote against alito and roberts to please his liberal base. i thought that that was a real cop out. i do not think that that is what the senate should be doing. but we will use that standard for a few minutes in the hearing, showing people how comfortable they would be, following his lead. megyn: when you talk about the charges being levied by your colleagues, they were using this association of obama, princeton, against them. a group that raised issues about minorities and women going into

prison. you ask him if he is a bigot, he said of course not. his affiliation with that group wanted -- became a running theme. sotomayor sat on the board of the group for 12 years. are you worried about having the same charge made against you? >> my concern with judge alito was that they were trying to make him killed by a seat -- guilt by association. during her time in the puerto rico legal defense fund, they took on some very liberal causes. i will not disqualify a lawyer for backing a cause that i do not agree with. most americans do not want their

money used to fund abortion, i would love to be on the other side of that issue. i will expose her record for what i think it was as a lawyer, extremely liberal. looking at her 12 years on the bench, a left-of-center, but not activist. her speeches of the most troubling of all to me. megyn: i am sure that we will hear a lot about those today. senator gramm, always a pleasure. >> you bet. bret: we are getting some new video of judge sotomayor are arriving at capitol hill. a minivan pulling up just now. we expect her to walk through halls on the way to the confirmation hearing room. she and the rest of the judiciary committee will get their chance to question her. the nominee will get a chance to respond. coming up, our all-star panel weighs in on what she is facing.

for the latest and all the other news today, go to foxnews.com. keep it here in the meantime.

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sonia sotomayor getting ready for the first round of questioning today. this is where it gets interesting. yesterday she got praise from both sides of the aisle. judge sotomayor said that her philosophy is fidelity to the law. we will hear senators probe that a bit more in moments. bret: what about the questioning? our all-star panel, steve hayes, news analyst from national public radio, as well as juan williams. chris will -- chris wallace is with us as well. yesterday she responded to some of the critics by saying that in her speeches and writings she was outside the mainstream. here is one little clip from her opening statement. >> my personal and professional experiences helped me to listen

and understand, with a lot always commanding the result in every case. bret: saying, basically, that her personal experiences do not trumped the law. chris, going into today, what are you looking for? >> we talked about this a bit yesterday, four weeks she has been trapped by top lawyers in the administration over the old executive office building over in what they call murder boards. they have asked every question in as obnoxious a way as possible to see how she can handle it. she has been very prepared. the other thing is, i do not think that those tough questions will come from republicans. i bet the they come from democrats. i bet that when pat leahy

questions her, he is the one that raises the wise latina comments. her policy at duke. i would think that they would want her to handle those questions being asked by the most friendly person imaginable. someone not like jeff sessions, who might hector her. what did you really mean, and she will get an opportunity to handle that on her own terms. there is a real art to this. it has been done over the years, where they have the chief adviser to the supreme court nominee, they are called the shirt off -- sherpa. in the 1980's, they had the 80-

20 rule. senators speaking 80% of the time, which they are happy to do. you only speak 20% of the time. if it gets ticklish, say that it is an interesting point and that you need to think about it some more. do not commit yourself. bret: initial thoughts, juan? >> i think that a lot of this is a dog and pony show, they are so practiced. senators cannot ask you how you would rule in a specific case. you kind of fill in around the edges. dianne feinstein said it yesterday, when she was interviewing, toledo and roberts said that they were strict constructionists. but in nine cases they subsequently overturned precedent. what it says is that it does not matter what they say, as long as they do not get into a huge fuss

that would derail the nomination. >> if i were the republicans, i would do the opposite of what she expects, long winded questions and talking a lot. i would ask her to fill in the silence. get her to talk as much as possible, get her as comfortable as they possibly can. >> that is why steve is a journalist and not a senator. [laughter] bret: exactly right. megyn: the other big story on capitol hill this morning. health care. house democrats are revealing their plan today. we go live to the white house for the latest details. (mom) soon, we'll be doing homework,

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and medicare and my insurance covered the cost. we can work directly with medicare or with your insurance company. we can even help with financing. if there's a way, we'll find it! so don't wait any longer, call the scooter store today. bret: we are just a few minutes away from judge sonia sotomayor are arriving at the confirmation hearing room in the senate office building, starting a full day of questioning from senators. megyn: in the meantime, house democrats are unveiling their plan for health care reform,

touching off a long line of debate on the issue. a senate committee marks up the other version of the bill. major garrett is live at the white house with the latest. we have heard so much on this health care reform bill. is it going to get through the house, could it get through the senate? where do we stand on this? >> house democrats are going to put out the financing side. they have already put out the problematic side. now we will see the details of how they plan to pay for 10 years of nearly universal health-care coverage over the next 10 years, with a surtax on what house democrats describe as the wealthiest americans in the united states. this surtax will gradually increase as you hit the threshold of having million dollars and $1 million. there was a big power while at

the white house. rohm emmanuel, his top health care adviser, as well as nancy pelosi and other top democrats got together and had a pep talk. the president asked house and senate democrats to stop fighting amongst themselves, tried to pass bills if they can. if we miss this deadline having the house and the senate act by august, we will lose momentum. max baucus vowed to the president and his leadership that a bill would be produced next week consistent with the deadline of getting the bill off the floor by the recess, still a very tough thing to do. but the finance chairman made a commitment to getting it out of committee, which is an important first step. it will be passed before the august recess, but if not momentum could be lost and it could fall apart. megyn: how will this be passed

if the moderate democrats, the blue dog democrats, are still worried about this idea of taxing the so-called rich. doing the math, these so-called rich folks are paying 36% federal income-tax right now, about to go up to 39% thanks to president obama. plus, if you live in new york city, which many of them do, you are talking about 50% in federal and state income taxes. just the income taxes, the response from the business community is that we are not taking the hit, we will fire people. >> these are very legitimate concerns. all the members, including moderate and conservative house democrats, many of whom were elected in the last cycle, feel that it is important to point out the size of the democratic majority being count -- counting

on these democrats in swing districts campaigning much like moderate republicans. liberal democrats are driving the legislative train of all of this, trying to impose these higher taxes. looking at a debate over energy policy in the house, many of those sent to rest democrats did not vote for it, but it came across by one vote. they will try that model in the house as well. megyn: interesting, thank you. >> -- bret: a secret cia initiative to capture or kill al qaeda leaders' using assassination teams. congressional democrats are demanding an investigation into all of this. critics say that this program was concealed from congress for years and that dick cheney may have played a direct role in its not being briefed to congress, ordering the agency not to brief

leadership. the plan never got off the ground, but the goal was to target terror leaders at close range rather than using air strikes. those are not all the details of the program, though we do know is that leon panetta said that he canceled the program last month shortly after learning of it. bill salmon joins us now. bill, there was a development in this. michael payton went on the record with npr, saying that dick cheney never told him not to brief congress on this initiative, what ever you want to call it, saying "i never felt that i had any impediment in briefing congress. we are looking live at the hearing room, we can see senator patrick leahy in the confirmation hearing room. this is the front page of the new york times -- front page of

"the new york times." "after 9/11, cia plotted to kill al qaeda leaders." what about this story? >> think about that had nine. you raised the question on the panel last night, is this a bad idea to kill senior al qaeda leaders? republicans are smart, they will ask that question of leaders. if the answer is that it is a good idea, then the next question is why are we making such a big deal out of this? if the answer is that it was not a good idea, then republicans can come back and say that you are weak on national security. by the way, that is what liz cheney has been saying for the last couple of hours. she has been defending her father on this, saying that this is another example of why democrats are not trusted on

national security, because the implication over this outrage is that it was a bad idea. bret: on the right side of the screen you can see judge otis -- judge sotomayor, she has arrived. your thoughts on this day, bill? questioning begins today. >> i think that it will be more interesting than yesterday, because instead of canned speeches you have some back-and- forth, question and answer. that is likely to elicit more interesting material than yesterday. that said, she is a careful woman who is likely to make a major gaffe. if there will be a day to pay attention to, it is this day. this is the chance where anything can happen in a live exchange. bret: bill, thank you as always. we are looking live at the

hearing room. unfortunately we do not have carl cameron live on the floor throughout the hearing. he cannot lift up the curtain all day. megyn: which would not be appropriate with a lady at the table anyways. bret: that is true. megyn: let's take a look at patrick leahy as he gets the question and answer session started. >> we are running one minute early here. the way that the traffic was today, i think that people are still having trouble getting in. what we are going to do is have a 30 minute round, going back and forth between sides. senators will be recognized based on seniority if they are

there. if not, it will go to the next person. and with that, as i said yesterday, when we concluded, now the american people have finally heard from judge sotomayor. i appreciate your opening statement yesterday. you have had weeks of silence. you have followed the traditional path of nominees. i think that you have visited more senators than any nominee i know of for just about any position. we get used to the traditional cressida and, questions are asked -- traditional precedent, questions are asked and you wave and we move on.

we are a long way toward answering the critics and naysayers, so we are going to start with questions here. i would hope that everybody would keep their questions pertaining to you and your background as a judge. you are going to be the first supreme court nominee in more than 50 years who served as a federal trial court judge and a federal appellate court judge. let me ask you the obvious point. what are the qualities that a judge should possess? you have had time in the trial court and appellate court. what qualities should a judge have, how does that shape your approach in being on the bench? >> center -- centaur -- senator,

yesterday many senators emphasized the values that they thought were important for judging. central to their comments were the fact that a judge had to come to the process understanding the importance in respect of the constitutio n and understanding that that respect is guided by an should be guided by the fall on appreciation of the limited jurisdiction of the court in our system of government, and understanding its importance as well. that is the central part of judging. what my experience is on the

trial court and the appellate court, it has reinforced for me the process of judging as a process of keeping an open mind. the process of not coming to a decision with a pre-judgment of an outcome. that reaching a conclusion as to start with understanding what the parties are arguing. examining, in all situations, carefully, the fact as they are proven and not proven, the record as they created, -- create it, then making a decision that is limited to what the law says on the facts before the judge. >> let's go into the particulars

on this. one of the things in your record is that you were a prosecutor. as many of us, the ranking member and i have had the privilege. you worked as an assistant district attorney to the manhattan district attorney. your former boss, robert morgan fall, the dean of the american prosecutors, said that the most important case you worked on was the prosecution of a man known as the tarzan murderer. he would swing on ropes into their apartments, robbing, stealing, and he actually killed three people. your co-counsel describe how you through yourself into every aspect of the investigation. you helped to secure a conviction, sentence of 62 years to life for the murderer. your co-counsel are described you as a skilled for -- skilled

legal practitioner who pursued justice for the victims, understood the root cause of crime, and how to curb it. how did that experience shape your views, in any way, as a lawyer and as a judge? this is getting into about as nitty gritty as you could into the entire area of criminal law >> i became a lawyer in the prosecutors -- area of criminal law. >> i became a lawyer in the prosecutor's office. i know who i became as a judge to mr. morganthal. the privilege of working in his office shaped my life. when i say that i became a

lawyer in his office, it is because that in law school -- they teach you a hypothetical set and a bit of teaching on how facts are developed, but not a whole lot. then they ask you about for applied legal theory. they ask you to apply it to the facts before you. when you work in the prosecutor's office, you understand that the law is not legal theory, it is the facts. it is what witnesses say and do not say. it is how you develop your position in the record. it is taking those facts in making arguments based on the lot as it exists. -- teh law -- the law as it exists. that is what i take with me as a judge. the respect that each case is

decided case by case, applying the law as it exists to the facts before you. you asked me a second question about that case, and that case brought to light for me, in a way that perhaps no other case had fully done before, the tragic consequences of needless death. in that case, mr. maddox was dubbed the tarzan murderer by the press because he used acrobatic feats to gain entry into an apartment. in one case he placed a row over a pipe on top of a roof, put a paint can at the other end, throwing it into a window in the building below, breaking a window. he then swung himself into the

apartment, and on the other side he shot a person that he found. he did that repeatedly. as a result, he destroyed families. i sought a family that had been intact, with a mother living with three of her children, some grandchildren. they all worked at various jobs. some of them were going to school. they stood as they watched -- the mother stood as she watched one of her children be struck by a bullet that mr. maddox fired. that family was destroyed. they scattered to the four winds. only one brother remains in new york to testify.

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

one indictment. i researched very carefully the law and found a theory called law leno -- malleneaux. if you can show a pattern that can establish a person's identity -- i am simplifying this, by the way, but then you can try different cases together. this was not a conspiracy that said he acted alone. i had to find a different theory to bring his acts together. it was a different application of the law, but i was strong on the principles and arguing those principles to the judge, the judge permitted the joint trial of his activities. in the end, carefully developing

the facts in the case, making my record, i should say our record, complete, we convinced the judge that our theory was supported by the law. this harkens back to my earlier answer, which is that that is what being a trial judge teaches you. >> so, you see it from both ends uc theories brought by prosecutors and defense, and you must make a decision based on those. the easy answer being that you do, do you not? >> it is important to remember that as a judge, i do not make the law. the test for me as a judge is not for me to accept or not

accept new theories, it is to decide whether the law, as it exists, as a principle that applies to new situations. >> obviously, the tarzan case was a unique case. as i said, mr. morgan fall single that out as an example of the kind of lawyer you are. i find your story compelling. i have stood at home until 3:00 in the morning, as they carried out the body of a murderer, so i can understand how you are feeling. in applying the facts of the law, you told me once that the law is what controls ultimately

and completely. i was struck by that when you did. there has been a great deal of talk about the richie case. the appeal and reviled -- the appeal involved firefighters in new haven and the decision to voluntarily describe the results of a paper and pencil test to measure leadership abilities. in 1991, congress acted to reinforce that understanding of the law every republican member of this committee supported that statement of the law.

there was a unanimous decision, referring to the district court ruling to not justify using the paper and pencil latest under several -- under civil rights laws. the majority of the second circuit voted not to revisit the unanimous decision, not their fault -- there for upholding the decision. you had your circuit precedent of held, they subsequently went to the supreme court. five of the justices reversed the decision, reversing a precedent. many have said that they created a new interpretation of the law. ironically, had you done

something other than follow precedent, you would be attacked as being an activist. now they attack you as biased and racist. kind of unique, damned if you do, damned if you don't. how did you react to the decision? >> you are correct. the panel, made up of myself and two other judges in the second circuit decided that case on the basis of a very thorough decision by the district court and the basis of established precedent. the issue was not what we would do it and what we would not do, because we were following precedent. we are obligated to follow

established precedents on a panel. the issue in ritchie was what the city did or could do when it was presented with a challenge to one of its tests. this was for promotion. this was not a quota case for affirmative action case, this was a challenge to a test. everyone agreed that it had a very wide difference between the pass rate of a variety of different groups. the city was faced with the possibility, recognized in law, that the employees that were desperately impacted, and that is the terminology used in the law, which is a part of the civil rights amendment that you were talking about from 1991. that those employees that could

show a disparate impact or a disproportionate passage rating, they could bring a suit and that then the employer had to defend the test that was given. the city here, after a number of days of hearings and a variety of different witnesses, they decided that they would not certify the test. they would not certify it in an attempt to determine whether they could develop a test of equal value in measuring qualifications. one that did not have a disparate impact. the question before the panel was was the decision before the panel based on race or their understanding of what the law

required it to do given second circuit precedent, bushie vs.ers new york state civil service commission, the panel concluded that that circumstance was lawful. the supreme court, i am looking and reviewing that case, -- in looking in revealing that case, applied a new standard. they announced that they were applying a standard for a different theory of law, explaining to employers and the courts below how to look at this question in the future. >> when you were deciding, you had a precedent from your circuit and the supreme court to determine the outcome.

is that correct? >> absolutely. >> today, now that the supreme court has changed the decision, without you having to we litigate the case, it would lay open a different -- re-litigate the case, it would lay open a different result. even though it was only a 5-4 decision, the circuit would be bound by this new decision? >> absolutely. that is now the statement from the supreme court on how employers and the court should examine the decision. >> during the course of this nomination there have been some unfortunate comments, including outrageous charges of racism made on television and radio. one person referred to you as the equivalent of the leader of the complex plan.

one leader in the other party referred to you as being a bigot. to the credit of the republican and democratic senators hear, they have not repeated those charges. you have not been able to respond to any of these things. critics have taken lines from your speeches, twisting them into something that you never intended. you said that "you would hope that a wise latina woman with the richness of her experiences would reach wise decisions." i remember other justices, most recently being justice toledo, talking about the experience of the immigrants of his family and how that influences his thinking. you'll also said in your speech

that you "love america and great things can be achieved of one works hard for it. judges must transcend their personal opinions and aspire to fairness and integrity based on the reason of law." then there is what you told me, that ultimately and completely the law is what counts. so, tell us, you have heard all of these charges and counter- charges. wise latina and on and on. here is your chance, you tell us what is going on here, judge. >> thank you for giving me an opportunity to explain my remarks. no words i have ever spoken or written have received this much

attention. i gave a variant of my speech to a variety of different groups. most often to groups of women lawyers, particularly young latina lawyers and students. as my speech made clear in one of the quotes that you referenced, i was trying to inspire them to believe that their life experiences would enrich the legal system, because all experiences always do. there is no quarrel in our society in that. i was trying to inspire them to believe that they could become anything that they wanted to become, just as i had. the context of the words that i spoke have created a misunderstanding.

i want to give everyone assurances. i want to state up front, unequivocally, without doubt, i do not believe that any ethnic, racial, or gendered group has an advantage in sound judgment. i do believe that every person has an equal opportunity to be a good and wise judge, regardless of their background or life experiences. the words that i use, i used them agreeing with the sentiment that justice sandra day o'connor was attempting to convey. i understood the sentiment to be what i just spoke about, which is that both men and women were equally capable of being wise

and fair judges. that has to be what she meant. because judges disagree about legal out comes all the time. or, i should not say all of the time, but in close cases they do. justices on the supreme court come to different conclusions. it cannot mean that one of them is on wives, despite the fact that some people think that -- unwise, despite the fact that some people think that. her literal words could not mean what she said. she had to mean that she was talking about the equal value of the capacity of being fair and impartial. >> you have been on the bench for 17 years. have you set your goal to be

fair and show integrity based on a lot? >> i believe that my 17 year record in the two courts, showing in every case that i first decide what the law requires under the facts before me and that what i do is explain to litigant's why the law requires a result. whether their position is sympathetic or not, i explain why the result is commanded by the law. >> does your oath of office not command you to do that? >> is the job of a judge. >> the guaranteed to keep and bear arms, the second amendment, an individual right.

i suspect that a large majority of people in vermont do enjoy this sport. i enjoy target shooting myself. i watched that decision carefully. is it safe to say that you except to the supreme court's decision in establishing the second amendment right as an individual right, is that correct? >> yes, sir. >> in the second decision, maloney versus cuomo, and personal right to bear arms being guaranteed by the -- the personal right to bear arms being guaranteed by the federal law, correct? >> it is. >> you cited the heller decision? >> completely.

i accepted and applied established supreme court precedent that the supreme court, in its own opinion, acknowledged the answering of a different question. >> let me refer to that. justice scalia expressly left his case unresolved and reserved as a separate question whether the second amendment guarantee applies to the states and laws doctor by the states. -- doctored tby the states. specifically in analyzing new york state law, the unanimous decision cited supreme court precedent as binding on your decision. that supreme court case has held

that the second amendment applies only to the federal government and not to the states. i have noticed that the panels in the second circuit, including people like judge posener, cited the same authority. we all know that not every constitutional right applies to the states through the supreme court. one of my very first cases as a prosecutor was a question as to whether the fifth amendment guaranteed a grand jury indictment applicable in the states, and the supreme court had not held the applicable. the seventh amendment right to jury trial, this has not been made applicable to states. in the stand that petitions to have the supreme court revisit the question supplied to the

second amendment is pending. how are you going to rule, would you have an open mind in evaluating the legal second amendment rights should be considered fundamental and applicable to the states? [captioning made possible by fox news channel] captioned by the national captioning institute --www.ncicap.org-- >> like you, i understand how important the right to bear arms is to many americans. one of my god children is a member of the nra. i have friends to hunt. -- who hunt. in the stand the individual rightfull fully.

the supreme court was addressing a very narrow issue, whether an individual right under the second amendment applied to limit the federal government's rights to regulate firearms. the court expressly identified that the right is not incorporated against the state's. it does not apply to the states in its regulation with its citizens. in the supreme court province, the right is not fundamental. it is a legal term. not talking about its importance as a legal term, talking about its being incorporated in the

states. when maloney came before the second circuit, as you indicated, we read what they said, saw that they did not express -- expressly reject the president, because it is the job of the supreme court to change it. you ask me whether i have an open mind on that question, absolutely. my decision in maloney or any of that type would be to follow the precedent of the supreme court when it speaks directly on an issue. i would not prejudge any question that came before me if i was a justice on the supreme court.

>> you have heard appeals in criminal cases, over a hundred. let me just ask you about one. the united states verseus giodonnel. a young daughter and niece of a prostitute, forced to engage in sexual acts with the defendant. the mayor was convicted under a law passed by congress prohibiting the use of facility or interstate commerce for the use of sexual activity. new have upheld the conviction

against a challenge that the federal criminal statute exceeded council's commerce clause. i mention this because i appreciate your death into the congressional authority to prohibit illegal conduct. did you have any difficulty in reaching the conclusion that you did in that case? >> no, sir. >> thank you. i am glad that you reach it. senator sessions? i appreciate his forbearance. >> welcome. good to have you back, judge. your family, friends, supporters. i hope that we will have a good day to day. i look forward to dialogue with you. i like your statement on fidelity of law yesterday, as well as your statements this morning. with clarity over the last decade, we have a lot fewer

problems today. there is a philosophy of the loss suggesting that a judge's background of experience can even shouldn't -- there is a philosophy of the law that a judge's background of experience can and even should be fair to every party. every day when they put on the road, it is a symbol that they are putting aside their personal bias and prejudice. i would like to ask you a few things about it. i would like to note, it is not just one sentence that cause of the difficulty. i would suggest that the quotation that he gave was not

exactly the perfect " of the wise latina comment. you said six different times that you would hope that a wise latina woman with the wit -- wisdom of her experiences would more often than not reach a better conclusion. a matter that i think we will talk about as we go forward. yesterday you said that simple fidelity to the law, the task of a judge was not to make law, but to apply law. i heartily agree with that. however you have previously said that the court of appeals is where policy is made. you said on other occasions that the law that lawyers practice and judges declared is not a definitive capital l law that many would like to think exists. i guess that i am asking today, what do you really believe on

those subjects? that there is no real wallaw? that the court of appeals is where policy is made? discuss that with us. >> i believe that my record of 17 years demonstrates fully that i do believe that judges must apply the law and not make the law. whether i have agreed with the party or not, been sympathetic or not, in every case i have decided i have done what all law requires. -with respect to judges making policy, i assume that you are referring to a remark that i made in a duke law student dialogue. that remark, in context, made very clear that i was not

talking about the policy reflected in the law that congress makes. that is the job of congress, to decide what the policy should be for society. in that conversation with the students, i was focusing on what district court judges do and what circuit court judges do. district court judges up by the fact to the individual case. when they do that, they are holding their finding. it does not bind anybody else. appellate judges, however, establish precedent. they decide what the law says in a particular situation. that precedent has policy ramifications, because it binds not just litigants in that case , it binds all litigants in

future cases. if that speeches heard outside of the minute and a half that you to present, it is very -- youtube presents, it is very clear that i was talking about policy situations and not talking about appellate judges and court making the policy. >> i would like to say that it was not that clear, that they personally -- that a person could believe is more than that. yesterday said that it strengthens the rule of law and faith in the impartiality of the justice system. i would agree. you have previously said this --

i am willing to accept that we to judge must not deny differences resulting from experiences and heritage, but attempt to continuously judge when those opinions and prejudices are appropriate. is there any circumstance in which a judge should allow their present -- prejudices' to impact decision making? >> never their prejudices. i was talking about the very important goal of the justice system, ensuring that the personal by a cs and prejudices of a judge not influencing the outcome of the case. i was talking about the obligation of judges to examine what they are feeling as they are adjudicating a case, and schuring that is not influencing the outcome. life experiences have to

influence you. we are not robots who listen to evidence and do not have feelings. we have to recognize those feelings, putting them aside. that is our job. >> the statement was that he willingly accept -- that you would willingly accept -- is that you willingly accept, and that you continue to judge when those are appropriate. the exact opposite of what your saying, is it not? >> i do not believe so, senator. i was saying that because we have feelings and experiences that are different kelliher how we can do lead to or believe that our experiences are appropriate query we really have to be open-minded -- are appropriate. . we really have to be open- minded, not letting those

things and determine the outcome. there are situations in which someone experiences are important in the process of judging because the law asks us to use those experiences. >> well, in their stand that. let me follow-up. in understand -- in your statement, this does not imply that you except that there might be sympathies, prejudices', and opinions that legitimately can influence a judge's decision? how can that further put faith in the impartiality of the system? >> the system is strengthened when judges do not assume they are impartial, but when judges test themselves to identify when their emotions are driving a

result, or experiences are driving a result and the lot is not. >> i agree with that. i had a judge tell me that he did not want his bias or sympathy or prejudice to influence his decision, and he told his officers to watch him. he was very concerned. i am concerned that what you are saying is inconsistent with the statement that he willingly accept that your sympathies may influence your decision making. >> as i tried to explain, but i tried to do is if i am sure that they are not. if i ignore them and believe that i am acting without looking at them, then i could unconsciously, or otherwise, the lead to doing the exact thing i do not want to do.

to let something but the law command the result. >> yesterday you also said that your decisions have always been made to serve the larger interest of impartial justice. in the past few have repeatedly said this -- i wonder whether achieving the goal of impartiality is possible at all in most cases. i wonder if by ignoring our differences as women, men, or people of color, we do a disservice to the law and society. are you not saying that your background and heritage influences your decision making? >> what i was speaking about harkens back to what we were speaking about a few minutes ago, life experiences that

influence us in good ways. that is why we seek the enrichment of our legal system from life experiences, affecting what we see or how we feel. that is not what drives a result. the impartiality is in understanding the law is what commands the result. to the extent that we are asking the questions, as most of my speech was an academic discussion about what we should be thinking about, considering in the process, excepting that life experiences could make a difference. i was not encouraging the belief or attempting to encourage the belief that should drive the result. >> in your previous statements, it seems consistent did you believe that you think your

background will accepinfluence results in cases, which is not impartiality. do you not think that that is not consistent with your statement? that your role as a judge is not to serve the larger interest of impartial justice? >> as i indicated, my record shows that at no point in time have i ever used my personal views or sympathies to influence the outcome of a case. in every case where i have identified a sympathy, i have implicated with the law requires a different result. i have not implicated my sympathies, for some of use, or prejudices'. >> you said something similar to that yesterday, that in each case you applied the law to the fact at hand.

but you repeatedly made this statement -- i accept the proposition that a difference there will be by the presence of women and people of color on the bench, and that my experiences affect the facts that i choose to see as a judge. first, that is troubling to me as a lawyer. when i present evidence, i expect the judge to see and hear all of the evidence presented. how is it appropriate for a judge to ever say that they will choose to see choosing some facts and not others? >> it is not a question of choosing some facts or another, senator. i did not intend to suggest that. in the wider context, i believe that the point i was making is that our life experience permits us to see and understand some facts more easily than others. i of the end, you are absolutely

right. that is why we have appellate judges that are more than one judge. each of us in our life's experiences will more easily see different perspectives argued by parties. but judges do consider all the arguments of litigants. i have. most of my opinions, if not all of them, have explained to parties why the law requires what it does. >> would you stand by your statement that your experiences affect the fax to you choose to see? >> i do not stand by the understanding of that statement. i will ignore other facts or experiences, i do believe that life experiences are important to the process of judging. they help you to understand and listen. but that the law requires a result and it will command you

to the facts that are relevant. >> i will just note that you made that statement in individual speeches about seven times over a number of years. it is concerning to me. i will say to you that i believed in judge cedarbaum's speech, and you use her statement as the beginning of your discussion. she believes that a judge, no matter the gender or background, should strive to reach the same conclusion. she believes that that is possible. you can argue that you do not think it is possible in all, maybe even most cases. you deal with the famous " of justice o'connor, in which a wise old man should reach the

same decision of a wise old woman, pushing back from that. you said you do not think that that is necessarily accurate. you doubted the ability to be objective in your analysis. so, how can you reconcile your speeches, which repeatedly assert that impartiality is a mere aspiration that may not be possible in all or even most cases with the oath that you have taken twice, which requires impartiality. >> my friend, judge souter bomb -- cedarbaum, is here this afternoon. we are good friends. i think that we approach judging in the same way as, looking at the facts and applying the law in each case. also, as i explained, i was using a rhetorical flourish that fell flat.

i knew that justice o'connor, reaching different legal conclusions, judges could disagree on legal conclusions in some cases. i was trying to play on her words. by play on words fell flat. it was bad, because it left an impression that i believe that life experiences commanded a result in a case, but that is clearly not what i view as a judge, clearly not what i intended in the context of my broader speech. i was attempting to inspire young hispanic latino students and lawyers to believe that their life experiences added value to the process. >> i could see that as a lay

person approach to it, but as a judge that has taken this oath, i am troubled that you wouldn't repeatedly, over a decade or more, make consistent statements saying that any fair reading of these statements consistently argues that this ideal and commitment, i believe that every judge is committed to putting aside personal experiences and biases, making sure that the person before them gets a fair day in court. judge, philosophy cannot impact you're judging -- your judging. it is much more likely to reach for a flower on the supreme court, rather than on the lower court where you are subject to review by your colleagues on a higher court. with regards to how you approach the law, let's look at the new

haven firefighters case, the ritchie case. in that case they told firefighters said they would take an exam that would determine who would be eligible for promotion, spending a good deal of money on the exam, spending a fair test to serve as a supervisory firemen, with the awesome responsibility at times to send firemen into a dangerous building, if it is on fire. they had a panel. baited oral exams, not all britain, consisting of one hispanic, one african-american, one white. this is what the supreme court held, that new haven officials were careful to ensure broad racial participation in the design of the test and its administration. the process was open and fair,

there was no genuine dispute that the examinations were job- related, consistent with business necessity. after the city saw the results of the exam it threw them out because the city rejected the test results sort -- solely because highest scorers were white. it became the predominant rationale for the city's refusal to certify the results. so, you stated that your background, new haven

firefighters had been subject to discrimination. was that a fact you chose not to see in this case? >> the panel, composed of myself and two other judges, in a very similar case offered by judge posner, they saw the case in identical way. in a similar case, the sixth circuit approached the issue in a similar way. a variety of judges were looking at the case in light of the established supreme court second circuit precedent, determining that the city, facing potential liability under title 7 could

choose not to certify the test if it is believed that an equally good test could be made with an equal impact on effective groups. the supreme court, as it is its prerogative in looking at a challenge, established a new consideration or a different standard for the city to apply. that is, was there substantial evidence that they would be held liable? that was a new consideration. our panel looked at the issue that way, the case before us was based on precedent. it was a different test -- >> judge, there was unease within your panel. i was disappointed and a lot of

people have been, the decision was so short, not discussing the serious legal issues. i believe that is a legitimate criticism. stewart taylor concluded that it appeared that judge cabrana was concerned about the outcome but was not aware because it was an unpublished opinion. raising the question of whether another hearing to be granted. you said that you are bound by superior authority. when the question of the hearing of the second circuit authority covering the case, that was up for debate.

you voted not to reconsider the prior case, voting to state with the decision of the circuit. your vote was the key vote. judge cabranas, of puerto rican ancestry, as you sided with him, it would have been different. had you stayed with the opinion until it was reversed. >> is that a question? >> it was a response to some of what you said, mr. chairman. you misrepresented, factually, the case. >> i will obviously disagree with that. we will have a chance to vote on this issue. >> in 1997 when you came before

the senate and i was a new senator i ask you this, in a suit that challenges government racial preference, quota or facts, will you follow the supreme court decision in subjecting racial preferences to the strictest screening? i asked you if you would follow the binding decision in that all governmental discrimination, including affirmative action programs, that discriminated by race of an african must face strict scrutiny in the courts. this is not a light thing to do, when one race is favored over another, you must have a really good reason or it is not acceptable. government agencies must prove that there is a compelling state

interest in support of any decision to treat people differently by race. you answered that in your view they correctly determined that the same level of strict scrutiny applies for the purpose of evaluating the constitutionality of government classifications, whether at the state or federal level. that was your answer, it deals with the government being the city of new haven. you made a commitment to this committee to follow that case. in view of the commitment that you gave me 12 years ago, why are these words completely missing from any of your panel's discussion of this decision? >> because those cases were not what was at issue in this decision. in fact, those cases were not what what's -- were not what

decided the supreme court decision. parties were not arguing the level of scrutiny applying to intentional discrimination. the issue is a different one, what is a city to do when there is proof that they are testing in a way that desperately impacts particular groups? the supreme court decided, not on the basis of strict scrutiny, that what it heard was wrong, but on the basis that the city's choice was not based on a substantial basis in evidence to leave it would be held liable under the law. two different standards and questions presented. >> judge, it was not that simple. this case was recognize pretty soon -- as far as judge cabranas

was concerned it was the most important discrimination case in 20 years. they were shocked, they got basically a one paragraph decision back of that case. he raised this issue within the circuit, asking for another hearing. your vote made the difference in not having a hearing. he said that municipal employers could reject the results and that the impact on your decision. municipal employers could reject the results of an employment examination whenever those results failed to yield a desirable outcome, i.e. failing to satisfy a racial quota. that was the analysis on the

impact of your decision, which he thought was very important. he thought that it deserved a full and complete analysis. he wanted the entire circuit to be involved. to the extent that some prior precedent was different, the circuit could have reversed it had they chose to do so. tell us how it came to be that this important case was dealt with in such a cursory manner. >> the panel's decision was based on a 78 page district court opinion, it was referenced in the per curium, referenced by the circuit. it relied on a thoughtful opinion from the district court. that opinion discussed the precedent to the fullest extent. justice cabranas had one view of

the case, and the majority of the court, not just my vote, this denied the petition for hearing again. the court, left to the supreme court, leaving open the question of how an employer should address, with no one disputed, prima facia evidence. that was not disputed by everyone. employees who had been desperately impacted were allowed to bring a suit. the question was, was it racially discriminating when they did not accept those tests? or were they attempting to comply with the law? >> judge, i think that it is not fair -- i guess that it is fair

to say that a majority voted against re-hearing, but it was 6-6. unusual for a judge to challenge a panel decision. your vote made the majority not to hear it again. richfield with -- ricci deal with important questions. questions that we must work out as a nation, work our way through. we should do it carefully and correctly. do you think that frank ricci and the other firefighters whose claims were dismissed, felt that they understood and acknowledged such a short opinion from the court? >> we expressed our sympathy to the firefighters. we understood the efforts that they had made in taking the

test. we said as much. we put up a 78 page opinion from the court. they obviously understood the law under second circuit precedent, which is why they pursued their claim further. in the end, the body that had the discretion and power to decide how these tough issues should be decided, that alone had precedent that was recognized by the circuit court, along with what the court thought would be the right test of standards to apply. that is what the supreme court did tell answering that important question. they had the power to do that, they had the power and the ability to do that. they were faced with the argument that suggested that the

panel was dealing with precedents and arguments that relied on our precedents. >> thank you, judge. i appreciate this opportunity. had the opinion stood, it was unlikely that we would have heard about this case on the supreme court. thank you, mr. chairman. >> thank you. obviously, we talked about your speeches. ultimately determining how do make decisions. megyn: there you here, patrick leahy in the attempted rehabilitation of a cross- examination of judge sonia sotomayor that had some hot fireworks and highlights. no holds barred from jeff sessions, bringing up everything from her wise latina comment,

finishing up with skating questions on her decision in the ricci case. the bay as the news made there was what she said about her comments about wise latina. >> absolutely. jeff sessions did a really good job. he basically dusted her up based on her own statements, particularly about wise latina. the statement where she said, obviously, that wise latinas would come to better conclusions than a white man. she glided over it when asked about it by patrick leahy. here she said that she was using a rhetorical flourish that fell flat. it was bad. it is not what i do as a judge. i still do not think that she has dealt with the key issue. she quoted sandra day o'connor

as saying that a wise man and a wise woman coming to the same conclusion, but that she was not so sure. then she said that she likes to think, or that she would help, that a wise latina would come to a, not different, but better conclusion than a white man. she has still not dealt with that. she is still dealing with the issue of trying to disagree, using a rhetorical flourishes, pointing out the contrast, but she has still not billed to the fact that she said that she thinks that a latino woman would come to a better conclusion. megyn: we have been joined on our panel by nina easton. one of the things that we were talking about during that cross- examination was the fact that she attempted to say that she was agreeing with justice o'connor. this is what she said in a speech in 2001.

"justice o'connor has been quoted as saying that a wise old man and a wise old woman will reach the same conclusion in deciding cases. i am not so sure that i agree with that. i would hope that a wise latina would come to a better conclusion than a white male." the day she was saying that she was agreeing, and that justice o'connor could not have possibly meant what she said. does that wash? >> it was a confused and contorted answer, frankly. a couple of weeks ago he said that she thinks she probably would have said it differently if she had had it to do all over again. if she did not take that opportunity to say that she misstated that, she kept saying it was taken out of context. senator sessions did a good job of forcing this on her. i think that it was left open, a question for republicans to go down on.

experiences affecting facts that she chooses to see, that is also something that republican senators will seize upon. >> that particular " was one that we had not seen very much, -- bret: that particular quotes not one we had seen very much -- quote was not one we had seen very much. senator sessions came back to tell her that she had said it seven times. >> she is running into problems. in answering her questions from senator leahy, she attempted to explain it away. later she said look, this fell flat and did not work. she tried to do both things, explain it away, put it into context, then she does sound it.

with all the other things that she ran through, she pretended that she had not said the things that she had said. talking about impartiality, she talked about the law, saying that nothing but the law can command results, but that there is no definitive capital-held law. running to race series of contradictions, she had a very difficult time walking back. bret: more with the panel after the bay -- after the break, we will be talking about the statements made regarding the ricci case, as well as more analysis as the questioning continues in the sonia sotomayor hearings, next.

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megyn: welcome back. i am probably the most interesting exchange we have seen yet in this sonia sotomayor confirmation hearing, jeff sessions coming out of the gate swinging against the nominee, pulling no punches in cross- examining her on the wise latina comment, making policy from the bench comment, and in this ricci case, where she ruled against the white firefighters

in the reverse discrimination case. shannon, the nominee is a bit on her heels. >> absolutely. the first mention came with the chairman, democrat patrick leahy. the feeling was that the democrats would put her most controversial things out there first, to give her a friendly face, rather than letting the gop get maximum mileage out of it. what she has tried to establish is the fact that she follow the precedent in place in the second circuit and that that is what she was tied by. the bat that, along with relevant supreme court precedent, meant that she made the right decision. there was a back-and-forth on that. a number of other judges heard senator sessions talk amongst themselves, not a conservative, calling her to task for not fully vetting the case.

she said listen, it went to the supreme court and they set an entire new standard for us. i made the decision correctly based on what i have before me at that time. we have some audio of that from just moments ago. >> the supreme court in looking and reviewing that case applied a new standard. in fact they announced that they were applying a new standard from a different area of law, explaining to employers and the courts below how to look at this question in the future. >> as she said, she has gotten different kinds from the supreme court. then there was the maloney decision she was responsible for earlier this year, saying that

the second amendment does not apply to states, meaning that he -- they could ban the right to own a gun and how that conflicts with the heller decision recognizing that the second amendment applies to an individual right, saying that they are individual issues that are compatible. here's what she said with regards to the millions of americans that own guns. >> i understand how important the right to bear arms is to many americans. in fact, one of my god children is a member of the nra. i have friends who hunt. >> of course some people will have a chuckle at that, because they always say that they have friends and family who, etc. clearly she is trying to communicate that she will

respect the second amendment, something that record -- resonates with republicans who have constituents that do not like the idea of their second amendment rights being infringed upon. megyn: it is also potentially an issue that could go to the united states supreme court, although since she has recently ruled on it, there's a question on whether she would be able to sit on the court if the case went up. we will find out. bret: coming back to the panel, steve hayes, nina easton, and host of "fox news sunday," chris wallace. you just heard shannon talking about jose cabranas, who had a problem with the ruling that judge sotomayor made to not take on appeal the case.

there is a lot of talk about president, that she was simply following precedent. he called the district's opinions path breaking, complex, far from on settled, disregarding examination results based on the successful applicants not being addressed by the applicants of the supreme court or on the circuit. what about that, chris wallace? >> this is a 1-2 punch by the republicans. the argument about impartiality and the wise latina is trying to effectively portray judge sotomayor as basing opinions on life experiences, prejudices, race-based identity politics.

ricci is where the rubber hits the road, that the theory found its embodiment in her decision in that case, where she sided with blacks that did not do well on the promotion exam, as opposed to the whites that the duwel. the supreme court -- whites that did to do well. the supreme court said that this was unacceptable in their 5-4 decision. what this is all about is that they're saying that this judge on the scales of justice are on one side as opposed to the other, in theory, and in practice in the ricci case. >> going back to the descent from cabranas, it goes against what senator leahy was trying to pinpoint or say, that there was precedent here, and he says that that was not the case. >> we have heard the senator

refer to an article out this morning talking about cabranas, who found out about this summary order by reading the new haven registry in the newspaper and decided to take the unusual step of looking at this because of the profound constitutional question and constitutional dismissal that does not actually address these important questions. this was issued preemptively, a serious question about whether this was set aside or constitutional. as she said, there was not a question of quotas or affirmative action. real tension between cabranes and sotomayor. megyn: the concurrence is

skating. from the supreme court, talking about these white firefighters that tried to get their promotions and were rejected. everyone is proceeding on the assumption that the reason that they did not get the assumption was because no african-american qualified on the exam. the city, to its credit, decided that it must be an unfair exam. judge alito pointed out how politics in new haven put enormous pressure on the mayor to throw this out, threatening him politically if it was not thrown out. there was a question about whether this was a political call, not having anything to do with the law. you could argue that the white firefighters were entitled to a summary judgment. to hear her tell it, it was a clear matter of failed law, she was following supreme court

precedent. does any of this matter? do the people at home care? do the democrats respond, or do they gather at all -- bothered with it at all? >> it matters for the same question that chris made, does life experience matter? she is practicing identity politics, in one way or another, on these cases. i thought that it was striking when she said that the case was not about affirmative action or quotas, it was about whether the city was liable under current civil-rights laws. it is in fact an affirmative action racial issue. it is a racial question, as you pointed out. it was so narrow in the ricci case. the supreme court has never been clear on affirmative action. go back to university of michigan, 2003, another 5-4 position.

they said ok, the law school could consider race in admissions and that the way that they did it was ok, but that the way the the undergraduate school did it was not. megyn: but that considering it was ok. >> still and involving and contentious issue. what happened in the hearing, for viewers, they get down in the weeds and the people get lost in these cases, the detailed description of them is about cases that affect the lives of people and are still being decided by the supreme court very narrow lead. megyn: certainly an area of supreme court jurisprudence, we will continue with our live coverage and you will hear even more after the break. . not long ago, this man had limited mobility.

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bret: be confirmation hearing for judge sotomayor is continuing.

we have an update. >> she has continued to insist that her judgments will be based on controlled by the law and has said so a number of times. she is in the process of being questioned, and just a moment ago we had our first exchange with the nominee on the subject of abortion. in many minds, is the preeminent issue. the sector first asked her about the griswold case, which established the right to privacy by the supreme court and she said that was settled. she was then asked about roe versus wade and said that, too, is an law. he was asked about a case involving limited restrictions on abortion, and she said also upheld roe versus wade, which she described as wall. so she is extending it and saying she upholds