of the u.s. supreme court, and many conservatives and abortion foes around the country believe roe versus wade was badly settled by the supreme court, and this has been the first mention of it. combat conservatives and republicans will go back and revisit. this time it is broader on by a democrat, supportive of the roe versus wade decision. bret: we have three interruptions yesterday during the opening statements, and those outburst about abortion rights and advocacy -- nothing today so far. >> no, and it is worth noting debt among the arrests yesterday was a woman who was in fact jane roe. she was the principal individual involved in the case that made abortion legal but has a since become an ardent foe of abortion.

abortion, though it has not come up until a moment ago is far and away the most polarizing issue at any given moment and always the underpinning of what happens at a confirmation hearing. bret: ok. carl cameron live inside the hearing room. thanks. megyn: we are going to stay even between democrats and republicans. while we may skip a democrat here or there it will probably been less on that front by headcount. we have herb kohl during the question now, a democrat from wisconsin. let's take a listen. >> would you support term limits, 15 years, 20 years, 25 years? this would ensure the justices do not become victims of the

cloistered ivory tower existence and you will be able to stay in touch with the problems of ordinary americans? term limits for supreme court justices. >> all questions of policy are within the product of congress for the first, so it would have to be considered by congress first, but considered in light of the constitution and statutes governing these issues. so that first decision would be congress. i can only know that there is a purpose to the structure of our constitution and it was of you by the founding -- it was the founding fathers view that one of justices who would not be subject to political whim or the motions of the moment and they felt that by giving them certain protections, that would insure

their objectivity and impartiality overtime. having served with many of my colleagues who have been members of the court, sometimes for decades, i had one colleague was still an active member and 90 bath -- in his nineties, and he was learning the internet and encouraging my colleagues of a much younger age to participate in learning. i do not think it is a service or a length of time. i think wisdom comes from experience and helps the process over time. i think in the end it is a question that they are best

served by. i do think there is some doubt it -- value in the service of judges for long times. >> finally, antitrust law. it is just an old-fashioned word for fair competition and it is a log used to protect consumers and competitors from unfair and illegal trade practices. a prominent antitrust lawyer was quoted in an eight-page story recently saying that, "judge sotomayor has a surprisingly pro-business record in the area of antitrust. in nearly every case she considered a dispute, the court ruled against the point of bringing an antitrust complaint."

i would like to respond to that and one other thing. court overturned a 97-year-old president and holds that price fixing no longer affected antitrust law. that means a manufacturer is free to set minimum prices at retail. do you think that this was appropriate to overturn a nearly century-old decision and meaning of the sherman act that businesses and customers had relied on and had never been altered by congress? those two things. and i trust. >> i cannot speak, senator, to whether he was right or wrong

about established law of the court. that case centered around the judge's different views of the effect on a question which none of them seemed to dispute the economic assumptions of these courts in the field wall. -- the field wall. -- the field of law. with respect to my record, i cannot speak for why someone else would you my record as suggesting a pro or entire

approach to any series of cases. all of the business cases, with all of the cases, my structure of approaching it is the same. what does the law required? i would note that i have cases, and it was a major decision in the field. all i can say is with business, in the interest of any party, i will consider and apply the law as it is written by congress and informed by precedent. >> thank you very much, judge sotomayor. >> this would be the appropriate

place to take a break. this also gives you a chance to have lunch. we will take a 10-minute, a flexible 10-minute break, and i think you for your patience. bret: as you see, judge sotomayor is talking to family members and she gets a break to stretch our legs. we will take this moment to bring in our panel. steve hayes of the "weekly standard," and a representative

of "fortune magazine," and chris wallace. this portion on abortion is likely going to be a big question on both sides of the aisle. to find out exactly where the judge sits on this issue, -- what about that. what do you foresee the question being? >> she will get a few questions on it. not as many as she will on racial preferences. but i think we have heard almost everything from this. she will be asked to expand, privacy, settled wall. i do not think she will do much more expanding, because it is not in her interest to do so. bret: but reporter regan defense fund, -- the puerto rican defense fund slot for repeal in federal and state abortion regulations while requiring

state funding. will that be an issue? >> it will. but she will just continue using it for more than a news flash. i am coming from a justice who has been nominated by a democratic leadership. i do not think it is going to be there in any way. this has defined her for more than abortion issues. >> it is been raised talking specifically about her role on the puerto rican educational

fund, arguing that federal funding should be required, and comparing it to the dread scott decision i would be surprised if he did not hammer her on that. >> it is more complicated, and she has impressions from the left to the right. a lot of democrats are concerned. it is not just a democrat appointed judge who says that decision to have been in the court are loss since 1975. they are. her two rulings were not articulately supportive to pro- choice. the center for reproductive law and policy versus bush, she said

the bush administration did not violate constitutional rights of the american organization when she insisted that they could assist in the propagating. she says they fehr public funds. i believe that meghan was not in the case of anti-abortion. so to the degree that they come up, she has not been a pro- choice judge. a little bit of, oh, you're not going to be 86 vote against roe

versus wade. megyn: you are right, they said that casey upheld roe in the 1990's you can also limit the right to abortion. the precedent was clear. she did not have that unless she wanted to be an extreme judge. she has not have abortion rights, but she is affiliated with this puerto rican group that is supposedly the hispanic aclu. she points out some protesters. doesn't she have more room to go

further than roberts? she can say this is a super president or doesn't it have to do with more to endorse row or casey? >> i would say that we should look at this case and it shows the way we will conduct myself. she will not get beat by the democrats. she needs to satisfy moderates, not particularly conservatives, but moderates. i am a mainstream judge and fall along and in your case to set a precedent was overwhelming -- i say, it is precedent. >> and the question about mainstream -- law-enforcement

groups and forced an endorsement of her, so this helps her, i think. bret: is there any question on the left that she is not progress towards? -- pro-choice? >> i and she would be crazy to go any further than she has gone already. megyn: he was the highlight of the morning in terms of trauma. jeff sessions, going in a back- and-forth with the nominee and senator sessions is our guest now. afternoon to you. already we're getting these emails from groups who came to enjoy your cross-examination and are highlighting some of the inconsistencies in the judge's response to your inquiries.

let's start with this latina content. she tried to tell you she was attempting to agree with justice sandra day o'connor's statement that it was women. but then she said she disagrees and that a wise latina would make a better decision. >> she did say she was agreeing with justice o'connor when she was not. objectivity is a near expiration of. she except the fact and use those words more than a few times. when you have a judge who was taken an oath to be impartial and discreet, the port and a rich alike, but cannot

articulate philosophy contrary to that, it is troubling. we use the phrase confirmation conversion, but i think we need to look at along record to ascertain how she might perform on the supreme court. megyn: she said she wanted to state unequivocally that she does not leave any ethnic or racial group has any advantage in judging. no matter what i would have said, this is what i believe. i do not believe gender groups or minority groups any advantage in judging. can you not take her at her word on that? >> i thought we should give her credit for making the statement today, but it is different from the statement she made. she said repeatedly that she

believed a latino would reach a better result. the judge needs to be absolutely committed to making sure precedents are there. precedents are there. bret: think they are intrigued with your answers, and democrats have the president.

what is the success from your point of view? >> there are individual votes and decisions for colleagues. asked right question and developer record, and we want to be nice, and i like her. she has a good record on the bench. i think this philosophy can flower on the supreme court. it seems to me she tends to have a classic one liberal activist philosophy of judgment and i think we need to talk about that. it seems to be obama's.

i think it is an educational effort to promote political agendas. bret: all right. thank you for your time. i will let you get back to the hearing as it resumes. 90s slacker hip-hop. ♪ singer: buckle up, everybody 'cause we're taking a ride ♪

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call the scooter store today. megyn: welcome back to our coverage of the confirmation hearings for the supreme court. if confirmed, she would be the 111th supreme court justice since we began putting justices on the high court. she would be the third woman to sit on the high court. justice ginsberg still sits on the top of the court, o'connor retired, and sotomayor would be

the second current sitting female justice. two out of nine. with the retirement of justice souter, we will see if she makes it. just a quick had line. it is at 9.5 unemployment now, but the president had suggested it would not go about 8 feet past the stimulus, and now the president is saying unemployment is likely -- likely to take up for several months as the economy recovers from its deepest downturn in decades. bret: he did say the economy will take up, and that is expected, for it to get as high as 11%. even warren buffett mention that number. you have more than 2 million jobs lost since the stimulus was passed, so the rate is a big

concern. another story, house democrats throwing out health care reform and house majority leader hoyer said he is committed to paying for health care reform. the big question is, how did they do it? he is saying a search chart -- a surcharge on the wealthy is one option. megyn: people think taxing the rich sounds good. . a problem is, a lot of the so- called rich are nothing of the sort. these business owners do not tend to just take a hit themselves. they can wind up laying people off. bret: democrats have fractures developing in their own party. blue dog democrats had concerns about how this would be paid for

and that is someone behind the scenes. the story behind the store that we have been falling -- following. . there was a meeting yesterday where there were concerned about making this happen before the august recess. the senate does not seem like it will make it happen that fast. megyn: let me ask you. where at this point is the house saying the major opposition is? is it going to be getting it passed with these blue dog democrats, were in the senate. >> there are real concerns. you have a great number of elected conservative democrats from districts that george w. bush carried in 2004. these are people were very

concerned about any talk of racism when unemployment numbers are continuing to rise and go forward. it seems that a house leadership wants to move beyond these problems. bret: we are back to the hearing with patrick leahy. >> following senator hatch we will go to senator feinstein and that will bring us to roughly 12:30 because of the caucuses. we will break at 12:30 but resume right at 2:00, which will mean i talked.

i think everybody will understand. senator hatch is a former chairman of the committee and a friend of many years. i would like to recognize him. >> thank you. lovely family. we are grateful to have you all here. let me ask a question. it is holding means it is settled, upholding the ban, it is settled. >> i consider essential laws subject to the deference that is decided with counsel.

>> iowa to talk about an area important to many of us, the second amendment. the right to keep and bear arms. you concluded that the right is not a fundamental one. in a 2004 case entitled united states versus sanchez, you handled the second amendment issue in a footnote. you decided that the decision says the proposition for it right to possess a gun is not a fundamental right. in the united states versus miller, last year in the district of columbia versus heller, the supreme court examined miller and looted that the case did not even purport to be a thorough examination of the second amendment and that miller provided no explanation of the content. are you familiar with that? >> i am, sir.

>> ok. so let me ask you, doesn't miller's treatment at least cast doubt on whether relying on him is proper? >> that is what i believe justice scalia implied in his footnotes, but he did knowledge of that right, as understood in jurisprudence, was fundamental. it is not that i considered it on fundamental but that the supreme court did not consider it fundamental to be incorporated against the states. i want to recognize that it has held it was not his opinion with

respect to the application of the second amendment to government regulation as an inquiry and a different inquiry as to the meaning with respect to that issue. >> would you touch this position with regard to the state issues? >> there are three cases addressing this issue at least in the circuit courts, and so it is not a question that i can address.

>> the conclusion that the ban on gun commission was permissible under the second amendment -- there is not were connecting the promise to the conclusion. without any analysis at all, the footnote leaves the impression that unless the right is considered fundamental, any gun restrictions is necessarily permissible under the second amendment. is that what you believe? >> i am not taking an opinion, because it is an open question. the courts have been addressing that question. the supreme court, in the opinion authored by justice scalia suggested it was a question that the court should consider. i am just attempting to explain

that u.s. versus sanchez was using fundamental in its legal sense, that whether or not it had been incorporated against the the state with respect to that question -- i think that even if it is not in corporate against the states, the question would be, with the states have a rational basis for a regulation in place, and i believe that the question there was whether or not a proposition against possessing firearms. under all circumstances, whether

or not there was a second amendment. >> and has always been understood that the second amendment was codified as a pre- existing right. the court observed this. by the time of the founding, the right to bear arms had become fundamental, and to describe it as a natural right. do you recall that from the decision? >> i do remember that. >> ok. in what way does it codify the producing fundamental right, affecting your conclusion that the second amendment does not protect this right? >> my conclusion in deep maloney case was based on precedent and the holding of precedent says that it did not apply to the state. what is your question?

>> i am asking what the supreme court has said in the past on this question. i recognize a right must be deeply rooted in our nation's history and tradition, but it is necessary to an anglo-american regime of liberty, or an enduring american tradition. i think i have cited that accurately on what the court has said with regard to what is a fundamental right. those are different formulations from the court decisions, but i think that a common trend there is obvious. is that your understanding about how they evaluate it, whether it would be deemed fundamental? >> the court decision with respect to the second circuit in corp., second incorporation

doctrine is reliant on old precedent for the court, and i do not mean to talk about it as passed in the 19th century. there is no question that different cases addressing different amendments have applied to a different framework, and whether or not that framework and the language to quoted are precise or not, i have not examined it in a while to know if that language is precise or not. i do not suggest it is not, i just cannot confirm that description. my point is, once the precedent is directly on point, with circuit precedent on point in a question, which is on this incorporation doctrine and how it uses the word fundamental,

then my panel, which was unanimous on this point, with two other judges, at least one other panel on the second circuit by justice -- judge easterbrook has agreed that once you have settled precedent in an area, on a precise question, the supreme court as to what about, and under the deference one gives to the factors one considers in deciding that older precedents should be changed or not. that is what the supreme court will do. >> pre-existing rights that the constitution codified.

>> fundamental rights have been incorporated to get the states, which must comply with them, so to the extent the court held that, they have been deemed fundamental. as that term is understood legally. >> unreasonable searches and seizures? >> as well. with respect to it relates to it. >> let me turn to your decision in maloney. this is the first decision to reach any federal court. in this case, the second amendment applies only to the federal government, not the states. this is after heller. am i right that you're authority was the supreme court's 1886

decision in pressler purses eleanor? >> that, plus a second precedent that had held that the abandoned had not gone out. -- pressler versus illinois. >> that case involved the 14th amendment privilege and community college, correct? >> i have not read it recently enough to remember exactly. >> you can take my word on it. >> ok. >> last year's decision involved the district of columbia, so it did not decide the issue of whether the second amendment applies to the state. but the court did say that it did not engage in the 14th amendment inquiry required of

later cases. am i right that a liter cases to which the court referred involved 14th amendment due process clause rather than its privileges? >> as i said, i have not examined them recently enough to be able to answer your question, but what i can say is that regardless of what those pieces addressed or did not address, the second circuit had very directly addressed the question of whether the second -- if you to the second amendment as applying against the state. so that extent, if that president got the teachings wrong, it still would bind my court to the extent -- >> i'm talking about beyond that. i'm talking about what should be done here.

to say that the second amendment does not apply to those 19th century cases where they use the community calls to incorporate. he later cases all use 14th amendment as far as i recall. >> as i said, i have not looked at those cases to analyze them. i know what heller said about them. in maloney, we addressed in narrow question. in the end, the issue as to whether that precedent should be followed or not, to question it to be addressed, you except research uri in one of the three cases. >> the reason we are asking is because i feel that you applied the wrong line of cases. with the privileges and immunities clause, it is the

14th amendment due process clause. but me just clarify. you held it does not apply to state or local governments. you also held that since the right to bear arms is not fundamental, all required to justify it recently in a conceivable will state a fact could provide a rational basis for it. am i right that this is a permissive standard could be easily met? >> all court standards are attempting to ensure that the government action as a basis. a stricter scrutiny is applied to the government's actions in others if it is not a fundamental rights defines it.

>> is a permissive standard that can be easily met. >> the government can remedy a social problem that is identifying or difficult in conduct, not in the most narrowly tailored way, but one that reasonably seeks to achieve that result. in the end, it cannot be arbitrary and capricious. that is a word that is not in the definition. >> as i said, the rational basis does look more broadly than scrutiny. >> as a result of this permissive standard, doesn't this mean that any state or

local weapons ban would be permissible? >> we were talking about none chucks. those are martial arts weapons. when the stakes are swann, which is what you do with them, if there's anybody near you, you are going to be seriously injured, because that swinging mechanism can break arms, bossed someone's skull, cause bodily serious, but fatal damage. a government would choose to address this issue of the danger of that instrument by prohibiting its possession in the way that new york did. the question before our court, because the second amendment has

not been incorporated, was did the state have a rational basis for prohibiting possession of this kind of instrument? the very narrow question, every kind of regulation would come into court with a particular statute with legislative findings as to why a remedy is needed, and that statute would then be subject to rational basis review. >> the point i'm making is that the decision was based on a 19th century case relying on the privileges and immunities clause. that is an important consideration for your as you see these cases. but me change the subject. in the firefighter case, and i'm

concerned about that because there is a variety of reasons, they have looked whether to it was a summary judgment, meaning it did not have to be distributed to the rest of the court. the other reason raised with the issue was that he read it in the newspaper. and he said he wanted to see the case. and he said, oh, this is a case of first impressions. so the court split 5-4 on whether the summary judgment should be granted. even florida senators say that firefighters deserved their day in court, but all nine justices disagreed with your family on that particular case. thus, your decision, all nine of

them disagreed. but you are handling nine. ok. your decision has been controversial. people all over the country are terrified of courts imposing their will against one group or another. without justification. the primary response so far has been that you had no choice because you are bound by longstanding precedent. most say you were bound by second circuit precedent, and others say it was supreme court precedent. i need to ask you about this. to be clear, it involves not only desperate impact discrimination but both disparate treatment and impact. that is what made it the case of first impression.

the city says they had to engage in desperate treatment or they would have been sued for disparate impact. so how these concepts relate in the same case. but whether you were bound by longstanding precedent -- as i recall, your opinion, whether it was the summer of order or a procuring opinion did not cite any supreme court were second circuit court precedent at all, right? >> i believe they cited the bushy case. >> ok. the only case in your opinion was for the district court opinion because you were simply adopting what they had said, rather than doing your own analysis, and i think that that is right. correct me if i am wrong. didn't the district court say that this is actually a very

unusual case, and this is how it was put -- this case presents the opposite scenario of the usual challenge to employment or promotional examinations as plaintiffs attack not the use of allegedly discriminatory examination results, but a reason for using those results. it is complicated, but you know more about it than anyone here in this room. the district court sided three second-circuit precedents, but did not do two of them, the kirkland and bushy cases. they did not deal with racial norming of test stores which did not occur in this case? >> they dealt with when employees could prove a disparate impact of the case.

but the principles underlying when employees could bring the case are the same when they established at a, which is, and and and 40 bees to -- and an employer be sued by employees to approve a disparate impact. the basic principles of those cases were the same, regardless of what form the practice issue took. >> ok. the third case, did in its present a challenge to the desire rather than the results of the test? didn't it actually present a challenge to the design of the case rather than the results of the employment test -- the design, rather than the results? >> again, regardless of the challenge of the issue, the holding of the precedent was that at this, if an employee

could show a disparate impact of a different activity by an employer, that employees had a prime facia case of liability under title 6. the question is, what is the subject to particular liability, because the employees could bring a suit under established what challenging that the city of new haven had violated .

>> they gave a full explanation. those questions, as i indicated, are always whether given the risk they are facing a lawsuit and conclusion, a better test could be devised, liable for discrimination and maybe disparate treatment under the law. the supreme court came back and set a new standard. as i understood, the dissenters in that case, what they are

saying is that if you will apply any standards, give the second circuit a chance to look at the record and apply that standard. it was not disagreeing about the circuit was not applying what as it was understood, the dissenters, as i read, were saying send it back to the circuit and let them look at this in the first instance. >> as i understand, the decision was not known to be done. his opinion, joined by five other judges and supporting it focused on these words. this appeal raises important questions on the circuit and the nation regarding the application of title 7's

prohibition of discriminatory employment practices. was he wrong? >> that was his view. he expressed it in his opinion. i cannot speak with him. i know that the pact -- >> justice kennedy wrote that it represents two provisions. represents two provisions. >> he had to establish a

different consideration for the city. before it denies certification, it had not been addressed by other courts, but the ability of the city with presented cases to determine whether or not it would attempt to reach an on- disparate impact had been recognized by the courts. >> they ignored it was an unusual case, and if there was little or no precedent, one of the questions i had was, and why did your panel not just do your own analysis and opinion?

the judge pointed out that the procuring approach is simply not the reasoning. you joined an appearance saying that it raised. it is about the difficult and unprecedented cases. whether right or wrong. and the supreme court did find you got it wrong -- the reverse that. i cannot understand the claim that you were sticking to precedent when all of that is part of the total decision and all the justices found it to be

an applause. serious consideration to what turned out to be a case of first impressions. they always said to look at these things in retrospect, and you are under a lot of pressure here, but i wanted to cover that case because i think it is important that case be covered, but also important for you to know how i feel about it based on the case. many here in the united states senate have important cases. these are cases where people are discriminated against. let me make one last point here. you have nothing to do with this, i know, but there is a rumor that people for the american way, this organization has been smearing frank ricci, only one of 20 plaintiffs,

because he may be willing to be a witness in these proceedings. i hope that is not true. i know you had nothing to do with it, so do not think i am trying to make a point against it. i am not. i am making a point that that is the type of stuff that does not belong in nomination hearings and i know you would agree with me. >> absolutely. i would never endorse, approve or tolerate if i had any control over individuals that kind of conduct. it is reprehensible. >> i believe that and i want you to know i appreciate this time we have had together. >> thank you. i would also put in the record. independent studies found that

in 97 race-related cases with her participating, she and the rest of our panel rejected discrimination claims by march but 8-1. mr. gold's been found in 10 cases favoring discrimination, nine were unanimous and those nine and seven panels included one republican appointed judge, and judge sotomayor allows race to a record decision making. without respect to rejection, you are now to senator feinstein, the chair of the senate. >> the washington post started to show that the boats came out liberal 59% of the time compared

with 52% or other judges who like her were appointed by democratic president, and the appointees were 13% were liberal the republicans. it is not a huge difference. i do not see a huge difference, i would like to put that in the record. i would offer, mr. chairman, when nominated by president bush, that that should be offered into the record as an explanation of how his nomination was blocked by consistent filibuster by the

democrats when there was a majority to confirm him. >> thank you. that will be in the record. i would not like to make any suggestion that mr. estrada is anything other than an exceptionally good lawyer. the argument was not so much with him rather than the withholding of the material by the bush administration. [captioning made possible by fox news channel] captioned by the national captioning institute --www.ncicap.org-- >> i am puzzled why mr. estrada keeps coming up. he had no judicial experience. the nominee before us has considerable experience. he would not answer questions presented to him. this nominee has been very straightforward, not using catchy phrases, answering the questions directly, as best she could. to me, that gets points. i must say, if there is a test

for judicial temperament, you have passed within an a plus. my adrenaline was moving along, and you have sat there quietly, responding to questions that are provocative and in their nature. i want to congratulate you about that. it was just said that all nine justices disagreed with you in the ricci case. i would like to point out that three other justices stated in a dissent that the second circuit decision should have been confirmed. this that correct? >> yes. >> thank you very much. also, a senator made a comment about the second circuit not been found in the case, and i wanted to follow up on that, what he said was not correct. you made the point that

unanimous panel was bound by second circuit precedent. the senator said that you could have easily over ruled that president by voting for the case to be heard. first, my understanding is that a majority of the second circuit voted not to hear the case again. is that correct? >> correct. >> second, it took a significant change in disparate impact a lot to change the result of the second circuit reached in this case. the supreme court itself recognized that it was creating a new standard. is my understanding correct? >> yes, senator. >> you see, what was happening here, ladies and gentlemen, is that this very reserved, factual, and considered nominee is being characterized as being

an activist when she is anything but. i have a problem with this because some of it is getting across out there. calls are coming into my office in that she is an activist. in my view, because you have agreed with republican colleagues 98% of the time, i do not see how they could be construed to be an activist -- how you could be construed to be activist. when someone asks you how you see your role and you say to apply the law as it exists with the cases behind it, a direct quote, that was a very clear statement. you did not say that you thought it was a good idea, there was no other cliche. it was a definitive statement. later he said that precedent is

that which gives stability to lock. and i think that that is a very important statement. what we are talking about here is following precedent. let me ask you, in a difficult area of the law, one question. the supreme court has decided, on several occasions, that the law cannot put a woman's health at risk. it said it in roe in '73, danforth in '76, planned parenthood in '83, thornburgh in '86, casey in '92, card in 2000 -- harhart in 2000. with justices robert and alito on the court, this rule seems to have changed. in 2007, in carheart ii, the

court removed this basic constitutional right from women. my question, when there are multiple precedents and a question arises, are all of the previous decisions discarded, or should the court reexamine all of the cases on point? >> it is somewhat difficult to answer that question. before the court in any one case there is a particular factual situation. how the court's precedents applied to that unique factual situation, often what comes before the court is something different from the prior decision. not always. but often. in carheart, the court looked to

its precedents. as i understood it, they were deciding a different question, which was whether there were other means, safer means, and equally effective means, for a woman to exercise her right than the procedure at issue in that case. that was, i do not believe, a rejection of the prior presidents. the prior presidents are still the precedents of the court. the health and welfare of a woman must be a compelling consideration. >> you believe that the health of the woman still exists? >> in many cases it has been a part of the court's jurisprudence, a part of the president'cedents.

>> thank you very much. what are your thoughts on how a precedent should be overruled? for effectively overruling without a acknowledging that they were doing so, scalia wrote in the hine case, "overruling prior precedent is extreme. i understand taking a minimalist approach, but laying claim requires more than being a prior claim to a pulp, setting an out as a weekend and denigrated, more incomprehensible than ever, somehow technically alive."

in the wisconsin right to life, chief justice roberts opinion effectively overruled a 2003 decision without saying so." saying that this kind of " judicial restraint" was really "judicial obfuscation." here is the question, when a court decides to overrule a previous decision, is it important that it do so out right? >> stand by a decision. there is a basic premise. the basic premise is that there is a value to predictability, consistency, fairness, and

evenhandedness in the law. society has an important expectation that judges will not change the law based on personal whim, but that they will be guided by the humility that they should show in the thinking of friar judges, who have considered questions and determine as best they could, given the tools they had at the time, to establish a precedent. there are circumstances in which a court should reexamine puerto rico, but -- reexamine precedent, but that should be done very cautiously. the presumption is in favor of deference to precedent. the question becomes what the factors are that you use to

change it. courts have looked at a variety of different factors, applying each in a balance in determining where it falls at a particular moment. it is important to recognize, however, that the development of the law is step-by-step, case by case. there are some situations in which there is a principal way to distinguish precedent from application to a new situation. i do not believe that the judge should act in an unprincipled way, but i recognize the doctrine as starting from a presumption that deference should be given to puerto rico -- deference should be given to precedent. it is always a very fine line.

>> thank you. executive power and national security. we have seen the executive branch push the boundaries of power, claiming sweeping authority to disregard acts of congress. to collect the communications of americans without warrants, detaining people indefinitely without due process. the president indicated part of a bill that he would in essence this regard. he signed the bill, saying that there are sections that he, in so many words, with this regard. most egregiously, in 2005, when congress passed a bipartisan

bill banning torture, president bush signed it, but he also issued a statement saying that he would only enforce the law consistent with constitutional authority of the president to supervise the unitary executive branch, consistent with the constitutional limitations on judicial power." in other words, even though he signed the bill, it was widely interpreted that he was asserting the right to not follow it. does the constitution authorize the president to not follow parts of a laws duly passed by the congress that he is willing to sign, that he believes are an unconstitutional infringement on executive authority? >> that is a very broad question. >> one that we are grappling with. >> that is why i need to be

cautious in answering it. not only is congress and grappling with this issue, but so are courts with the claims being raised by the many litigants who are asserting, right or wrong, that the president is taking activity against the individual in exceeding the authorization of powers. the best that i can do i am answering your question, as there are so many pending cases, is to say that the best expression of how to address this in a particular situation was made by justice jackson in his concurrence in the youngstown cases. that involved president

truman's seizure of steel factories. there the justice set up a framework in articulating the fact that no one has thought of a better way to make it. he says that you always have to look at an assertion by the president' that he or she is acting within the executive power in the context of what congress has done or not done. he always starts with looking at whether congress has expressly or implicitly addressed or authorized the president to act in a certain way. if he has, he is acting at his high as natural power. if the president is acting in prohibition of an express

implication, an act of congress, then he is working at the lower end. if he is acting where congress has not spoken, that we are in the zone of twilight. the issue in any particular case is always starting with what congress has said or not said, looking been at what the constitution has to say about the powers of the president,-the powers of congress in the area. you cannot be more specific than that in response to your statements that weren't part of your question, other than to say that the president' cannot act n violation of the constitution. no one is above the law.

but what that is in a particular situation must be looked at in a factual scenario before the court. >> thank you. this is very relevant to what we do. we often discuss this case. we just passed the foreign intelligence surveillance act. one of the amendments was to strengthen the expressivity of the law, which has been in the bill since the beginning, that there are no exceptions for which the president's can leave the four corners of this bill. it will remain to be seen how it works out over time. i can say to you that it is a most important consideration as we look at these matters of matt -- national security.

let me ask you this. you joined a second opinion last year, holding that executives should not forbid companies that hold national security letters to tell the public about them. the panel's opinion in the case said that the national security context in which these letters are authorized imposes on the court a significant obligation to defer to the judgment of the executive branch officials. and that under no circumstance should the judiciary become the handmaiden of the executives. dad is dole -- that is dole versus casey. how should court's balance the executive branch expertise in national security matters with a

judicial branch constitutional duty to enforce the constitution and prevent the abuse of power? >> i can talk about what we did there as a request of the approach taken in that case. it's difficult to talk about an absolute approach in any case, because every case presents its own actions by parties and its own set of competing considerations, often. in doe, the district court had invalidated a congressional statute altogether. reasoning being that the statute violated the constitution in a number of different ways and that those violations did not authorize congress to act in the

manner that it did. as the panel said in that position, recognizing deference to the executive is important in national security, and a deference to congress, as this report was in validating an act of congress, that we had, as an appellate court, reason to be cautious about what we were doing in this area, with a reason to balance and be consistent with constitutional requirements and the actions being figured. giving back to that principle, we upheld the statute. what we did was address two provisions that did not pass, in our judgment, constitutional muster. one of them was that the law, as supreme court precedent commanded, requiring it that if the government was going to

stop an individual from speaking in this particular context, that the government had to come to court immediately to get court approval of that step. the statute instead require the individual who was restricted to come in and challenge the restriction. we said no, the government is acting and you have a right to speak. if you have a right to speak, you should know the grounds and you should be told or brought to court to be given an opportunity to have that restriction lifted. the other was the question of who bore the burden of supporting that restriction. the statute held that it was the individual who was being burdened who had to prove that

there was a reason for it. the government agreed that the burden by lated supreme court precedents is and premises on freedom of speech, agreeing that the burden should not be that way. we left the statute to explain the proper burden. in all of these cases there is a balance and deference needed to be given to the executives, and to congress in certain situations. we are a court that protect the constitution and the rights of individuals under it. we must ensure an act before reviewing the claim before us. >> thank you very much. one question on the commerce clause in the constitution, that clause -- as you well know -- is

used to pass laws in a variety of contexts, from protecting schools from guns, to highway safety, laws on violent crime, child pornography, laws against discrimination and to protect the environment, and those are just a few examples. when i questioned chief justice roberts i talked about the last 60 years, where the court did not strike down a single federal law for exceeding the congressional power under this clause. in the last decade, however, the court has changed its interpretation, striking down more than three dozen cases. my question to the chief justice and to you, do you agree with the direction of the supreme court has moved in? narrowly interpreting an enactment of the commerce clause?

not relating to any one case? >> i know. the question assumes a prejudgment by me of what is an appropriate approach or not in this case that might, for me as a second search it -- second circuit judge. it is not a case that i can answer in a broad statement. i can say that the court, in reviewing congressional ax as they relate to exercising power under the commerce clause, they have looked at a wide variety of clauses. considering that in different areas there is a framework that the cases have addressed. that framework would have to be considered with respect to each case that comes over the court. i know that you mentioned a

number of different cases. if you have one in particular that concerns you, we can perhaps talk about the framework that the court established. >> i will give you one quickly. restricting the distance that somebody could bring a gun close to a school. >> the gun-free zones, schools, which the court struck down. in that case and some of its subsequent cases, the court was examining a wide variety of factors. they included whether the activity that the government was attempting to regulate was economic or non-economic. whether it was an area in which states traditionally regulated,

whether the statute at issue had an interstate commerce provision as an element of the crime, then considering whether there was a substantial effect on commerce. they looked at the congressional findings on that last element, the court did, determining that there were not enough confluences of factors that they were looking at to find that that particular statute was within congress's powers. that is the basic approach they have used by other statutes. they have looked ads, i would note, their most recent case in this area, where the court

upheld a crime that was non- economic but essential in the fact that it involved the possession of marijuana. there they looked at a more broad statute in which the provision was passed and the intent of congress to regulate a market in illegal drugs. broad principles established in those cases have been the court precedent. their most recent holding suggests a number of factors reporting to look at each situation for the court to apply principles to. >> one last question on that point, one of the main concerns is that this interpretation, much more restrictive now, could impact environmental protection

laws. clean air, clean water, or anything that we might do i and cap and trade. >> there are cases pending before the courts raising those arguments. those are issues that the court is addressing. i cannot speak further on that. >> it is just that congress passed the have the ability the legislate. in those general areas the commerce clause enables that legislation. as you pointed out, we revived the case to make specific findings, perhaps with more care toward the actual findings that bring about the legislative conclusions, we might be able to continue to legislate in these areas. my hope is that you would go to

the court with the sensitivity that this body has to be able to legislate in those areas, and there are very important questions regarding the well- being of the people, the air, the water, etc.. >> in all of the cases that the court has addressed this issue, they have paid particular attention to congressional finding. i know that individuals might disagree with what the court has done in individual cases, but they have never disavowed the importance of deference to individual findings with respect to the powers they have in passing on the constitution. >> thank you. best of luck. >> i need to correct one thing. earlier i said that i had a letter, that was not correct. >> could we have a copy?

i sent out a note last night letting mr. estrada know that. >> we both made an error. >> we should remember that mr. estrada is not the nominee here. just as with all the statements made about president obama's philosophy, his confirmation hearing was last november, not now. just you, judge. have a good lunch. we will come back to see who is next. senator grassley will be recognized when we come back in. we will start right at 2:00. recess. bret: pat leahy, putting the senate in recess for lunch. there was some back and forth

about miguel best products, a court of appeals nominee who was filibustered by the democrats when put forward by george w. bush. before that, diane feinstein, a california democrat, asking a series of questions, judge sotomayor responding in a technical and logical way. nothing surprising there, which is what the democrats want to see as she goes through these friendly questions. megyn: carl cameron, our senior political correspondent, has been watching this whole thing from the skybox. carl, does this strike you as going the way that democrats want it to go, no fireworks apart from the jeff sessions questions? >> the trick to getting confirmed by the senate is to not make any huge mistakes or

gaffes. the questioning that she underwent was heavily new ones and deep into constitutional detail. it was fun to look at my colleagues, googling madly to keep up with the senator from utah. but the past statements about being a wise latina were the four most fiery comments. she seems to have repeatedly -- reportedly repudiated them. that it was bad and it fell flat. here's a sampling of how she distanced herself. >> i want to state, up front, unequivocal and without doubt, that i do not believe that any ethnic, racial, or gender group has an advantage in sound judging.

i do believe that every person has an equal opportunity to be as good and wise a judge, regardless of their background or life experience. >> sandra day o'connor once said that a wise man and wise woman with more than probably come to a same distinction. judge sotomayor has said that i would hope that a wise latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who has not live that life. jeff sessions, the ranking republican from alabama, was not persuaded by her attempts to back away from those comments, suggesting that her entire professional career had been contradicting those remarks. >> very concerned that what you

are saying today is inconsistent with your statement that he willingly accept your sympathies, opinions, and prejudices, influencing your decision making. >> mr. sessions began questioning today by saying that he was quite pleased by her comments yesterday, that her judicial philosophy was quite simple, fidelity for the law. and that he felt encouraged by some of the comments today. but it is highly unlikely that they are convinced that judge sotomayor is not an activist judge. there are another few hours of inquiry at least, they will be going back to it time and time again. megyn: thank you, sir. bret: thoughts of focused today on the ricci case, brought by a group of new haven fire

fighters. an interesting exchange between the nominee and senator hatch. shannon was watching it all from our washington, d.c. control room. >> it was almost like law school class today. she became a professor, picking through careful and lengthy inside baseball technical discussions explaining why she decided the way that she did that -- and that the supreme court, ruling against, how they were both right. we believe that there will be a thursday testimony. senator hatch brought up a point about the personal attacks going after these firefighters. here is this exchange on that issue with the judge. >> you have nothing to do with this, i know. there's a rumor that people for the american way, that this

organization has been smearing greg ricci, one of 20 plaintiffs, because he may be willing to be a witness in these proceedings. i hope the data that is not true. i know that you have nothing to do with it. do not think that i am trying to make a point against you, i am not. i am making a point that that is the type of stuff that does not belong in supreme court nomination hearings and i know that you agree with me. >> i would never endorse, approve, or tolerate, if i had any control over individuals, that kind of reprehensible behavior. >> she made that very clear today. interestingly, ricci is a fire fighter that has dyslexia who spent thousands of dollars to pass that promotion exam, and

countless hours studying. today she said that even though she decided against them, she had great sympathy for what they went through. that she understood that mr. ricci went through extraordinary circumstances. the brief opinion has gotten great attention, because of its business of this. she wanted to be clear that she sympathizes with frank ricci, but that it will always be a law that is the final word in her court and that based on that, she feels she decided the case correctly. >> thank you. >megyn: our all-star panel is here with us. so, let me ask you this. is this a concerted effort, not just by democrats, but by republicans, to bore us into submission? let's be honest, it was exciting

in the morning. orrin hatch was incomprehensible, the legal exchange. it was deep in the weeds. dianne feinstein -, is this a tactic or something else? >> it is exactly what she was trained to doi, diffusing any possibly interesting situations. i must say, i was surprised to hear her say that she had received phone calls, senator feinstein, saying that some people think that the nominee is an activist judge. not a good job -- good sign for the democrats, if that is the case. i thought that it was telling. senator feinstein saying that she was subject to misinformation, such as everybody on the supreme court, including those that were a part

of the four disagreed with your handling of the case. she said that three of them said they would have devoted as you. she went on in other cases, like supreme court justice roberts and others acting in such a way where they thought that they were overturning precedent without admitting to doing so. i think that what you are seeing there were democrats on the offensive. i thought that this was so fully scripted, it must have made some impact. megyn: is ricci playing a bigger role than i thought it would? rasmussen came out with a poll this morning saying that 40% of those polled are against her confirmation. >> another one said the same thing, this was before the

confirmation hearings began in favor of her confirmation. i expect it to continue to play a big part. going forward this afternoon, jon kyle knows how to question nominees. there are difficulties in resolving the idea that they want to vote for someone to pay deference to president obama's choice, acknowledging the fact that republicans lost the election and the president won. at the same time they are troubled by the things that she said, and we can expect to see them go after her pretty hard on those things. megyn: i have read, on one of my favorite blogs, senator grassley

is taking copious notes in preparation for his cross- examination. bret: he is also a tweeter, i wonder if he is going to tweet before. do you tweak? >> tweet free zone. [laughter] bret: coming up, international law. what else? >> we might hear some more about gun-control. i do not think that they have exhausted ricci and wise latina. i was surprised at hatch. while i am not saying that this was over my head, it was very technical. to this member of the general audience, it was not obviously accessible. what sessions did so effectively was raised questions about

whether this judge is out of the mainstream, accounting for the fact that people recall her office, saying she is a judicial activist. impartiality being something that i aspire to, the evidence that they pay attention to, the answer about wise latina and how it specifically applies in the ricci case raises questions about whether it is out of the mainstream, if tom is on one side of the scale. that is troubling. we have been following this very closely. this is the first time they have heard her. a brief acceptance speech, this is the first exposure, but she

comes off as serious and workmanlike. they will go back into the republican caucus, waiting for that. bret: do you think that she had a poker face? >> she had a very calm session. no matter what they do, never let them see you sweat. she has never seemed un- judicial, playing well with others. i think that as a part of what they are telling her. >megyn: to let viewers know, or in hatch was looking at an explanation of gun rights. fyi, that is what was happening.

we are going to join them, and we will have more with other news headlines. we will be back after lunch break. úbd@

trace: amid the supreme court

nomination for sonia sotomayor, there's a world of other news. welcome to the live desk. martha: welcome, everyone. at this moment we are waiting for a news conference in pensacola, florida. the sheriff's department just announced two more arrests in the cold-blooded murders of this florida couple. they were the parents to 16 children, 12 of those children adopted many of those children -- 12 of those children had mental disabilities. there were security cameras inside of the home. we know that those images that were caught show masked gunmen breaking into their home. we are also learning that it was one of their children at first called for help in the story. brian is live and side of the sheriff's office. what are we expecting to hear?

>> the sheriff, david, coming to the microphone. in the last few hours there were two more arrests, bringing the total number to six. two more people are being held in a nearby county, which could be the fort walton beach area. let's talk about what we know, four suspects previous to this have been arrested. leonard patrick gonzales, leonard patrick gonzales sr., all of those people were in custody yesterday, and as we said, we will hear the two more people were arrested. >> it looks like this was a robbery case. is there any more information on the motive for killing this

couple? >> it is a bizarre case. you have talked about the security cameras and the systematic approach to the house, they were dressed like ninjas so there was apparently a lot of planning. we do not know a motive. we have been told that robbery is one of the motives, but that there might be others that have not been revealed. there has been an unusual development in the last few hours. one of the suspects, patrick gonzales jr., has been active in the community, teaching women and children self-defense. we have a videotape where you can see him training kids and women how to defend themselves. we are learning that there are more and more bizarre facets to this heinous crime.

martha: it is difficult to hear you in that crowded room. but referring to that video, someone giving martial arts training, what you are saying is that the man we are looking at is one of the suspects in the crime? >> that is right, one of the people in jail at this time. he is being held right now in jail and we do not know what would possess a guy who was active in the community, helping people in that community, what would cause him to be involved in a crime like this. of course he is innocent until proven guilty, but it is a very strange development. one day, helping people in the community, the next day the ostensibly robbing two members of the community. stellar people. as you said, many of them were adopted and had developmental

issues, special needs children. what an unusual and bizarre case. we still have no clue as to what was really behind all of this. robbery to be a motive, we are told, but there could be other motives as well. >martha: incredible. more coming up, we will take you right back to that news conference when it begins. trace: everyone is watching the senate judiciary committee for judge sotomayor. house democrats are dropping, delivering their health care bill on capitol hill after several delays. the president wants a bill before the august recess. democrats remain divided over major details. major garrett is following this live. what you think we will see today? >> what we will see as house democrats explaining how they hope to finance at least half,

slightly more, of the projected one trillion dollar cost for 10 years of something approximating health care in this country. the principal method will be, according to those on the ways and means committee, a 1% surcharge on income for couples above $350,000. even higher, unspecified for families on income above $1 million. we do not know the specifics, but we know that they intend to raise the surtax on the super wealthy, $540 million over 10 years, the missing component of their health-care legislation, that is what will come before voters today, reaching the house floor before the end of the

month. >> there is a great deal of push back on capitol hill. there is a great deal of contentiousness up there. >> how do you finance this enormous expansion of health care benefits without taxing those who are engines of job growth? a crucial question that house democrats will have to ask and answer within their own ranks. if they cannot pass it on their own, they will it not get much republican support at all. they will get zero support, democrats reporting amongst themselves. nancy pelosi said yesterday that she -- that house democrats will pass this before the august recess. there was a big meeting yesterday, white house chief of

staff, top legislation. that the differences that remain can be sorted out later, but we cannot afford to lose momentum. trace: harkening back to the stimulus, why is it so important to hit this with a bill? why not wait and go over this, fall? >> the practical reality behind the rhetoric is this -- the white house knows that the taxes to pay for this issue get to the beginning of the 2010 midterm election season, and the more difficult it will be for those in the white house to successfully lobbied democrats that might be facing a tough re-

election or a primary challenge to make that hard vote. they want those challenges passed now so that they can be put in stone. the white house fears that if they do not meet the deadline and this goes into the 2010 election cycle, politics will take over and they will lose crucial momentum. that is why the white house wants this done before the august break. trace: major, thank you. martha: as we told you, melanie and bird billings were taking care of 17 children in their home. masked gunmen were in and out in 10 minutes, murdering this couple. why? a news conference, right after this. .

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hoping tomorrow is the day they will go. bernie madoff has been moved to a federal prison in north carolina. martha: 2 big efforts for the president. health care and the energy bill. we are finding out that there could be trouble indeed. a leading expert on polar bears who is a skeptic on climate change told to stay away from the senate, after claims that his dissenting opinion was suppressed at the epa. molly henneberg is live in washington. we have governor sarah palin writing a very passionate arguments against and trade. what did she have to say when she threw her hat into the mix?

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