candidate says that his cap and trade bill will undermine america's economic recovery and inflict permanent damage. [captioning made possible by fox news channel] captioned by the national captioning institute --www.ncicap.org-- she wrote in the "washington post," that job losses are so certain it includes a presidential provision accommodating newly accommodated unemployed workers from the dried up energy sector to the tune of $4.2 billion a year. the cost of farming, manufacturing, warehousing, and transportation will go up,. she argues there is no reason to do this when there is an abundance of resources in alaska. martha: we know that cat and trade barely passed in the house. what are the chances that this will be critical. ? >> reporters from the house and senate say this will curb greenhouse gases and sparked a

revolution in energy technology. lots of concern from republicans and moderate democrats about consumers. and harry reid just push back the deadline. the deadline. the house, in order to get it passed -- is said they did that to any credits to businesses and that would prevent real emissions reduction. a spokesperson for greenpeace says that the bill is a victory for the coal industry lobbyists, oil industry lobbyists,

agriculture industry lobbyists, some of lobbyists, among many others. but it is a tremendous loss to the american people and the world in our common fight to alert climate catastrophe. they say that the bill was weakened by the house and needs to be significantly strengthened in the senate. we will have to see how likely that is. martha: we will see what the senate does with that. thank you very much, molly henneberg in washington. trace: still waiting for the news conference in florida on the murder of berg and melanie billings, who were shot to death. they were raising 17 kids, four of them their biological children. six people are in custody and they are looking for 10 more. we will get back to brian wilson for breaking news as it comes in. in the meantime, major changes for the automotive task force.

the onetime new york banker stephen ratner will be replaced by ron bloom after gm and chrysler made steamy exit's. does his departure have anything to do with the new york pension fund investigation? >> it does not seem to, but it could remove him as a target. he formed quadrangle, a private equity firm accused of paying lobbyists to pull out money from a pension fund. that is apparently not illegal. neither ratner nor quadrangle has been accused of wrongdoing, and authorities say wrongdoingrattne is nowr likely to -- authority say that he is not likely to face charges. trace: is this a big surprise? >> actually, rattner last week when the role of the auto task

force changes from restructuring companies to monitoring government investments, ron bloom is a senior member of the task force, it bought a replacement for rattner. he also brings experiences. is it labor restructuring expert who advised the steel industry when the union downsized. martha: breaking news from florida. they're gathering at the news conference and we're understanding there are waiting for family members. let's listen in. >> a tragedy occurred with the mergers of the billings couple. we as a society, and specifically a county, witnessed the worst in man. a far less, cruelty, and indecency.

in the last five days, as sheriff, i have had the honor as the sheriff to witness the best in integrity, kindness, and professionalism. last thursday after the tragedy we asked melanie and her husband to come to the sheriff's office. one day after the tragedy. i am sure you recall sending in a lobbyist to the sheriff's office. i asked you if there's anything i could do for you, and your response was to find the people who did this. it is my honor to that that

today. seven individuals are currently in custody related to the murders of berg and melanie billings. one photograph is absent because this individual is a 16 year-old juvenile. the last thing i'd do is give credit where credit is due. if you have a point in your life were you can stand with people of greatness, you are truly blessed. i would be remiss in not recognizing personally the men and women that in five days have brought this case to its conclusion.

i ask you to direct your attention to this room. our case manager, investigator, another investigator, another investigator, and another investigator, and another investigator, and we had close coordination with the attorney's office and florida department of law enforcement and members of the federal bureau of investigation headed by special agent stewart, members of the

atf, special agent beach, and the department of drug enforcement. at that time, i will conclude my remarks and turn the podium over. >> i am state attorney in this area, and in a major investigation like this, it is important that law-enforcement and the district attorney's office work closely together. in this case, that occurred and i would like to personally thank the sheriff and members of his team who worked with my office. we had several people in my office that personally came down, and i can assure you that the second thing unusual in some ways about this is the vast number of resources that are allocated to the situation by the sheriff. you heard some of them. in addition to that, those

resources were very effective because they did really work around the clock. they did not quit. and i think that that is a feature of this investigation that is unusual. it certainly is very appropriate to honor those people. we share the sorrow with his family and hope that the matter is completed now and hopefully they will move forward. i realize how difficult that might be. >> at this time, we take your questions. >> [inaudible]

>> there were occasions where mr. gonzales, senior, led a pressure washing business -- there were a few occasions where wind was at the property for some time. but where you would think of long-term projections, you have to confirm that. >> do you feel that this matter is concluded? is there another layer to look at? >> there are a glimpse that need to be closed, some follow-up investigations. we have the least one individual that we are specifically looking for at this time, and there may

be others. but at this time we only have one identified. one identified. it is within their purview now to investigate this case. if it is within the con fines of the killing, we will be involved. on a routine basis, a video enhancements -- we use the fbi, ballistics, alcohol, tobacco, and firearms. we would coordinate with our narcotics division and the dea. so they were involved in those perspectives. again, anything we developed

outside of the count by the florida had been turned over to those agencies. >> he said there was one line or more than one line of motors. can you talk about that? [inaudible] >> what did they robbed? can you say? >> they did take items you would normally see. money, jewelry. we cannot really go into any additional details. i gave that to demonstrate to you what the motive was and put to rest questions about the

motive, and hopefully, that will do that. again, as a prosecutor, i am sure that you understand that i am not going to get into specifics. most questions you asked me i will not be able to speak to and i am sure that you understand. i am not prepared to go into it at this time. i am not prepared to go into it. i indicated to you one of the items that was taken to demonstrate that the primary motive was home invasion, and really, it will be difficult. because this case still must be tried in the court of law.

myself i do not want to go into detail on that. >> we have business dealings, and we use the example of mr. gonzales senior. he would hire members of this group to work on a part-time basis on an as-needed basis so work would come through. the individuals we have secured in the past that are currently in custody are from the county, and there titus from the audit be tailing group. the one pivotal person in this organization is leonard patrick gonzales, jr.. he is the organizer. one moment.

we will not speak to that issue at this time. anyone that aided or abetted the commission of this crime. [inaudible] >> the last four individuals are from bogalusa county. he did not. >> inaudible >> no, he did not. that information, we will not release at this time. >> what about the occasion with the power washing company. who's was that? ? it was owned by leonard gonzales, senior.

he had a pressure washington business. we had four people died today detailing business called fifth the men since auto detailing. -- fifth dimension. we invited the family. >> they all worked the arrests, arrested suspects? who owned it?

i will not speculate on how the crimes get out of control. >> [inaudible] >> you bet. they have the sheriff's office. >> [inaudible] are we talking about a couple hundred dollars, or did they take all of the money in the safe? >> we will not discuss in any way the contents of that safe. we cannot release information on the shooter. who knows why crime has been out of control? unless your present at the time it occurred and you are an active participant, you cannot

speak to the issue. i will not speak to that issue. >> [inaudible] >> understand something print. this investigation, we did not focus in on anyone. this was due to the professionalism and hard work of capt. wood and his group. the investigation progressed to the development of these witnesses, and no time did we know that anyone was involved. we have information indicating that there was an amount of practice that was involved.

a couple of individuals have prior backgrounds and this group, so as we stated early on, it was only one element. >> when did you start to put faces on them? >> the big break with the video surveillance system that the billings family had in their home on that compound and the second break was when the news media, and we began to receive calls and emails. we got a lead on this specific vehicle.

everyone expresses remorse when they are caught. >> upgraded now from what was originally done? >> we're in the process of charging mr. gonzales sr., upgrading it to murder. >> will all of the suspects be charged with an open count of murder. murder. there is nothing that we can determined -- determined.

we will assist you in that very thing if there is another press conference. >> [inaudible] >> again, we will get that information for you after the press conference. i will not speak to that issue. >> how big was the safe? did they need five guys? >> it was a medium-sized safe. i will not speak to that issue. if you go to any safe and bought company, you will see small states and medium states. [laughter] is a visual thing. >> the way it existed in florida, about a and additional information will come out.

but we cannot address the news conference today. once the paperwork has been filed with the court, it goes back. there will be some informations filed relatively soon. >> what is going on with the children? >> they are in a safe, loving, secure environment. we are working in victim advocates and investigators to ensure that that family >> do you have any ideas if they will be prosecuted together? >> we were able to move as

rapidly as we did -- i can assure the and i agree. >> [inaudible] >> yes. >> what are his current the charges? >> murder. (of murder. only a ground jury can indict for first-degree murder. >> inside the house, one of those inside the house? >> at the 16-year-old was intimately involved, but it is difficult for me as prosecutor. difficult for me as prosecutor. here in the county, the cuban

boat in the county, gonzales jr. and cold iron. we're in the process were we're moving so rapidly with such a voluminous investigation, so many investigators involved, you have to debriefed and consolidate and review it could be some time. but in general terms i would anticipate that within a few weeks, this matter will be presented to agreement. >> at that time we pursue indictments, some individuals

will be charged with felony murder. it is premature to separate out exactly what charges will be placed, but based on the investigation, i will seek a first-degree murder indictment. it is premature to talk about the death penalty at the time. it is such an ultimate penalty that is very deliberate, we go through it. i will not expect decisions to

be made before the grand jury hears it. there are certain aggravated for the circumstances that can be considered any time more than one person is killed. it can be considered an observation of an aggravated circumstances. anytime you break in and a death occurs, you are involved in a felony, and i could be an aggravating circumstance. there are many others. it is also really premature for me to go any further other than to make those general statement at this time. martha: 7 people are now in custody and it would appear that the robbery plot.

it was hatched on the part of police on the part of someone who had done power washing at the house and another person who did maintenance. they know who the people are. they are still working on the great connection. the people came over in clause i military-style invasion, but something went horribly wrong with it went in there to rob was described as a medium-sized safe. 12 of these kids were abandoned at a later adopted by this loving family and they are now without mom and dad.

trace: all seven have been arrested, and one was 16 years old and they say he was instrumental in the crime. they say that led to the avalanche in the case. it is also important to know that this is in skandia county. it is on the florida line, so he can only talk to his jurisdiction. nine children were in the house when this home invasion robbery and murder went down. one of the kids actually started the investigation. martha: an awful story. thank goodness seven people are in custody and they're looking at one more person. they say that the 16-year-old was intimately involved with the murders. rattner trace: trace: another southwest airlines jet has made an

emergency landing in orlando. the jet was on route from st. louis. comes one day after this. you see this right cure? that is all the size of a football -- you see this right here? this is a hole the size of football. all southwest planes were booked at. -- looked at. they were ready to go and went back up. we will get into that coming up. but how close are you to your goals? there may be more you can do. only caduet combines two proven medicines... in a single pill to significantly lower... high blood pressure and high cholesterol. in a clinical study of patients... with slightly elevated blood pressure and cholesterol,

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trace: in the top box, the emergency landing. and another 747 had landed safely in orlando and we are hearing it could have been a fire in one of the auxiliary

power stations that cost them to emergency land in orlando. they evacuated all 134 passengers safely off at 737 and you can see right there the plane being brought to the gate, cooked up and brought to the gate. very concerned that this is a second flight. martha: let me take you back to the other story we want to cover, the dangerous situation on a southwest airlines flight. this one happened in west virginia. and do you know what they found after the plane was on the ground? a football-sized hole in the 747 had to baltimore. the pressurized the cabin.

the southwest airlines had one passenger saying he heard a loud noise and found this one-foot hole right about his head. sunlight was streaming through. southwest is ordering 200 inspections for their planes. courtney, talk to us a little bit about what you think happened today and what they think happened yesterday? >> well, these are scary headlines we are hearing. i have been looking into what south west said and yesterday evening, what i heard about the football-sized hole. they ordered an immediate inspection of their 737.

in the hangars around the country, they walked around the planes and give a visual check. but hairline fractures cannot be dedicated with specialized equipment. this news is keeping them bitchy, and they resorted to a schedule of 3000 flights -- it is keeping them busy and they resorted to a schedule of 3000 flights. martha: it is a clean opening, which makes me wonder if it is a piece that popped open because it was not connected.

remember the color-code a threat alerts? red, yellow, orange, green? the department of homeland security is creating a task force to see if we need to change the system. it came out right after september 11, when they thought there was a great risk of an imminent attack. critics say that the colors are vague and confusing, and they're putting in a 60-day review period different protection levels have to kick in. in need to make a recommendation to the white house. trace: grim news about the economy.

>> this has been more severe than the great depression. how employment numbers will respond is not yet clear. my expectation is that we will continue. trace: what else did he have to say, i'll be a bad, about the economy? >> he says it will take a while for the rate to come down and in the next several months he will continue to see it take upwards. he does say that there has been some improvement in the economy, that there has been stabilization in financial markets and banks are starting to lend again. but unemployment takes time to come around and right now is at 9.5%, the highest it has been in 26 years. he said that michigan has been particularly battered. he mentioned that because on his

way there now, they have been hard-it. had it not been for the economic recovery package of the white house, more jobs would have been lost there, so they are better off than they would have been. trace: it is on tonight to st. louis for the all-star game. >> he will be talking education when he gets to michigan. trace: jobs come up. >> you bet. do you want to talk baseball? he will throw out the first pitch tonight at the all-star game in st. louis. during his meeting today with the dutch prime minister's peace said, "oh, i'm going to try and limber up my arm a little bit." i do not know how he will do that today. he is traveling. the last time he threw a pitch

was at the championship series and he said he just wanted to keep it high. it probably did not go more than 30 miles an hour. no one was caught in it, but i would be surprised if it went any faster than that. the worst thing you can do is bound to it. -- an ounce in it. trace: -- the worst thing you can do is bounce it. martha: speaker pelosi is backing up efforts to find out what secrets were kept from congress and who gave the order to keep it quiet. michael hayden has said he never received any order to keep anything quite, so we are watching that story as it develops. also more coverage of the sotomayor hearing. they're all out eating lunch right now, getting sustenance

for the afternoon. she was grilled this morning by senators who want investigation. imodium multi-symptom relief combines two powerful medicines for fast relief of your diarrhea symptoms, so you can get back out there. imodium. get back out there. or annuity over 10 or even 20 years? call imperial structured settlements. the experts at imperial can convert your long-term payout into a lump sum of cash today.

martha: democrats are pushing ahead with plans to hold hearings on the cia and investigate whether the investigation ever materialized. but the existence of a plan or the idea of it, captured or killed by al qaeda leaders. they are investigating claims about her being told about the harsh investigation, mainly that. waterboarding. what can you tell us about what the plan was or if they plan got off the ground? >> i spoke to officials with direct knowledge of the programs, saying that it never operational. what we know is through leaks to newspapers. essentially it was a program to

set up paramilitary teams and target and kill known al qaeda leaders in foreign countries. after determine what they can diouf's, an idea for another way to go after al qaeda leaders and not use predator drugs that have been using in the afghan region. so that is what we know about it, but still there are a lot of questions being raised on the hill. martha: a lot of people, they heard that bin laden was killed by paramilitary team, they would have said it is just fantastic news. so it is plain to us with the understanding is in terms of how congress would be notified, and

who is supposed to be told that before it happens? >> this goes back to 1970's. the church commission hearings, where the cia was raked over coals because of attempts to planned to assassinate fidel castro. at that time, an order was issued saying there can be no assassinations without presidential orders. post-9/11, within the cia, there are looking at this. at what point during a planning of an operation do you need to inform congress, and that is being hotly debated between democrats and republicans on the hill as well as within the cia itself. as one official said, since when

did it become a sin to talk about targeting and killing al qaeda? martha: 90 very much. good background on that. trace: just moments away from the senate hearings set to begin after the break. that is a live look there, they are all at once. they will come back, i am sure, with renewed vigor. judge sonia sotomayor taking a hot seat again. coming up, live from the hearing.

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trace: breaking news out of illinois concerning the white house. it has come across the wires that the first lady's father, frazier robinson the third, was buried at bir oaks, the same

cemetery where 300 graves were dug up. we're told that michelle obama's father's grave was not disturbed. her father died in 1991 from complications of emphysema. he was buried at the cemetery. that was the case, despite vandalism earlier this morning. martha: that is it for us. special coverage of the confirmation hearings with bret and megyn continues right now. bret: welcome back. we're getting ready to go back in the confirmation hearings. i had a good lunch. did you? martha: i did. i am amazed at all of the other news happening in the world.

bret: think it is fascinating. megyn: the cross-examination have not been exciting except for a couple, but we're hoping for more interesting ones to happen this afternoon because we have had the meeting. bret: right. next up is chuck grassley. carl is back at it. are you working and talking or perched above? >> the first member of the committee lived through robert bork, clarence thomas, john roberts, and he said that

republicans are justifiably criticized a ball. he has set on the record he intends to even up the disparity, meaning that he could be going after sotomayor very hard, and he is particularly upset about unresolved issues with wise latina and whether or not the judge agrees or disagrees with sandra day o'connor. bret: not many people have that phrase starting a sentence, chuck grassley will be fun. >> hold on, hold on. i will plead guilty to being a want, ok. we all did schoolhouse rock 6.

but charles grassley will be tough and interesting, and afterwards, you will say carl was right. bret: what about your assessment of judge sotomayor's composure or temperament in the back and forth, especially with he did questioning from sessions and others? >> i the nipple on familiar with her frown. she does have -- i think we have got familiar with her frown. she does have a smile, but she has a not quite scalp, but an expression that was a frown. she has held her tongue and not interrupted senators, which is a big no-note here. you do not do is interrupt. she has gotten high marks. fact, i talked to a number of republicans, the john corning, or in hatch, lindsey gramm and jeff sessions all told me that they are not thrilled with the

way things are in terms of the fact based but they have given her props, real credit for holding her tongue and showing a temperament that most people would want in a judge. thank you. we will check in later. megyn: this is all three branches of the government coming together, the constitution in action. the president nominates, the senate confirms, and this person, if confirmed, moves on to the third branch of government sitting atop the judiciary on the supreme court, only the third woman to do so. wheels are in motion. this is how founders envisioned it. maybe not exactly like this, but close. shannon is live in dark and " room -- live in our control room. what has jumped at you so far in washington?

>> if she is confirmed, this might be the last time we see her in front of the camera because they are not allowed in the supreme court. a couple of senators said they would ask and the senator from wisconsin did ask about it. he tried to push her about how she feels about the possibility of cameras in the courtroom. she pushed and pushed and pushed, and this was the best answer he could get from her. >> i was a pretty good litigator, and i know that when i work hard at trying to convince my colleagues of something after listening to them, we try it for awhile. we will have to talk together and figure out that issue together.

i am a pretty good litigator. i was a good litigator, and i know that when i worked -- >> and one individual she would replace has confirmed justices souter. he said that cameras will role in the courtroom over his dead body. so he is one of poland. most justices have expressed mixed feelings about it. they can see the good and bad and there are a couple who have pushed back, but justice souter would be out of the picture. maybe she would be able to use her skills findings uncompromised -- finding a compromise. and we are waiting for the issue of abortion. you will not hear the word a lot. you will hear precedent -- do you respect row versus wade? she said she respected and would do so on the high court.

megyn: one good thing is she clearly gets wearing color for television. i had the same outfit on yesterday's show. unfortunately, nominated for the supreme court, she will be wearing a black robe all the time she has got something going with fox. trace: if she wears a suit with a tie and a pocket square tomorrow, i will be freaked out. megyn: later, the judiciary committee will hear from the majority and minority witnesses and testify about the former fbi director. he joins us now. i want you to weigh in on this charge the dianne feinstein says

she has been getting calls on. an activist judge. what is your response? >> i do not think it is accurate. my relationship with her goes back to 1992 and actually my familiarity is much deeper than most anybody you will hear from in that room as a junior judge i became her second seed mentor judge and she came on, so over the period of the first year on the bench as a judge, i sat with her and reviewed her opinions and discussed issues, and this is a very well-prepared, smart, fair all-the law judge. i saw it in her decision making, the way she hears out lawyers and deliberate very carefully with a lot of detail and commission and commitment on the issue, pitting the facts right

and falling but walk, and that is the template for the kind of just what any court, the activist legal become for some people a label for positions they don't like, but in the sense she would not follow precedent and make policy on the courts, that is inconsistent with everything we've seen, and 17 years of the judicial record, which at which people would pay more attention to. megyn: from one angle do you come at it? you have a conservative background. is that how you would describe yourself? is that the angle your coming at this from? >> i think it is true, but you make a good point. the president of the international association of chiefs of police has been in the hearing room for two days and they have endorsed her.

the largest most prestigious law enforcement organization in the world. . >> if you talked to the new york city detectives who worked on our cases, if you talked to the f.b.i. agents who presented cases to her when she was a district judge, they will tell you this is a very strict, follow the law but support the police and support law enforcement when appropriate in all of her decisions. that's very important. >> now back to the hearings and chairman leahy. >> they do two minutes after the interview, the phone rings. my mom called, she said don't you ever say this. they will think you don't work.

actually, i don't. i just recognize you're doing all the work and i appreciate you doing it. turn next to senator grassley. after senator grassley to senator feingold. >> i hope you had a good break. i appreciate very much the opportunity to ask you some questions. i would like to start off my round with some questions about your understanding of individual property rights and how they are protected by the constitution, and let me say as i observe property rights around the world, there is a big difference between developed nations and developing nations and respect for private property has a great deal to do with the advancement of societies. so i believe all americans care about this right. they want to protect their homes and anything they own from unlawful taking by government. but this is also a right that

is important for structural interests as you know. besides being a senator, i come from an agricultural state in iowa. i am a farmer as well. i'm sure that ordinary americans besides the economic interests that might be involved are all very well concerned about where you stand on property rights. so some of these issues have been discussed, but i want to go into a little more depth on kelo as an example. could you explain what your understanding is of the state of the fifth amendment's taking clause jurisprudence after the supreme court decision in kelo? senator brownback said this aptly when chief justice roberts was before this committee. quote, isn't it now the case that it is much easier for one's -- one man's home to become another man's castle?

your general understanding of the takings clause. >> good afternoon, senator grassley. it's wonderful to see you again. >> thank you. >> i share your view of the importance of property rights under the constitution. as you know, i was a commercial litigator that represented national and international companies. it wasn't even the case that it was a difference between developed and underdeveloped countries. many of my clients who were from developed countries chose to -- in part to invest in the united states. because of the respect that our constitution pays to property rights in its various positions, in its various amendments. with respect to the kelo question, the issue in kero as

-- kelo as i understand it is whether or not a state who had determined that there was a public purpose to the takings under the takings clause of the constitution that required the just compensation when something is condemned for use by the government, whether the takings clause permitted the state once it's made a proper determination of public purpose and use, according to the law, whether the state could then have a private developer do that public act, in essence. could they contract with a private developer to effect the

public purpose? and so the holding as i understand it in kelo was a question addressed to that issue. with respect to the importance of property rights and the process that the state must use, i just point out to you that in another case involving that issue that came before me in a particular series of cases that i had involving a village in new york, that i ruled in favor of the property rights -- the property owner's rights to challenge the process that the state had followed in his case and to hold that the state had not given him adequate notice of their intent to use the property -- well, not to use the property, but to be more

precise. but they hadn't given him an adequate opportunity to express his objection to the public taking in that case. >> could i zero in on two words in the kelo case? the constitution uses the word use, public use, whereas the kelo case talked about taking private property for public purpose. in your opinion, is public use and public purpose the same thing? >> as i stood the supreme court's decision in kelo, it was looking at the court's precedence over time and determining that its precedence had suggested that the two inform each other, that public purpose in terms of developing an area that would have a public improvement and use,

that the would -- two would inform each other. >> they went beyond the constitution, the word purpose, and expand an individual's ability to take private property because i believe everybody believes that kelo was an expansion of previous precedent there. >> i know that there are many litigants who have expressed that view, and in fact there has been many state legislators that have passed state legislation not permitting state governments to take in the situation that the supreme court approved of in kilo. the question of whether the supreme court overstepped the constitution as i have indicated the court at least my understanding of the majority's opinion believe and explains

why it thought not. i have to accept because it is precedent that as precedent, and so i can't comment further than to say that i understand the questions and i understand what state legislatures have done and would have to await another situation or the court would to apply the holding in that case. >> then i think that answers my next question, but it was going to be to ask you whether you think that kelo improperly undermines the constitutionally protected private property rights. i presume you're saying that you believe that's what the court said and it doesn't undermine property rights. >> i can only talk about what the court said in the context of that particular case and to explain that it is the court's holding and so it's entitled to stare decisis effect and

deference. but the extent of that has to await the next step, the next cases. >> well then maybe it would be fair for me to ask you what is your understanding of the constitutional limitations then on government, any government entity taking land for public purpose. >> that was the subject of much discussion in the kelo case amongst the justices and with certain justices in the dissent, hypothesizing that the limits were difficult to see, the majority taking the position that there were limits. as i have indicated to you opining on a hypothetical is very, very difficult for a judge to do, and as a potential justice on the supreme court, but more importantly as a second circuit judge still

sitting, i can'ten -- can't engage in a question that involves hypothesis. >> does the constitution allow for takings without any compensation? >> well, the constitution provides that when the government takes, it has to pay compensation. as you know, the question of what constitutes an actual taking is a very complex one because there is a difference between taking a home and regulation that may or may not constitute a taking. i'm not at all trying to not answer your question. >> let me ask you another question. would you strike down a takings that provided no compensation at all? >> well, if i explained, if the

taking violates the constitution, i would be required to strike it down. >> let me move on to the didden case versus the village of portchester. raise serious concerns about whether you understand the protection provided by the constitution for individual property rights. in this case, mr. diden alleged that his local village government violated his fifth amendment rights when it took his property to build a national chain drugstore. at a meeting with the government agency, another developer, mr. diden was told that he could give the developer $800,000 or a 50% interest in his pharmacy project, and if mr. diden did not accept either condition, the government would simply take his property. two days after mr. diden refused to comply with these demands, the government began proceeding to take his land. the district court denied mr.

diden his day in court. your panel confirmed that decision in a five-paragraph opinion. why did you deny mr. diden his day in court? how can these facts in essence allegations of extortion at least not warrant the opportunity to call witnesses to see if mr. diden was telling an accurate story? >> the did encase presented a narrow issue that the court below -- [yelling] >> officer, remove that man immediately. [yelling] >> we will stand in order. we will stand in order. officers will remove that man. you know, -- and they did. and they did.

again, both senator sessions and i and ranking members have said this is a hearing of the united states senate. the judge deserves respect. senators asking questions deserve respect. i will order the removal of anyone who disrupts it, whether they are supportive of the nominee or opposed to the nominee, whether they are supportive of a position i take or opposed to it. we will have respect that should be accorded to both the nominee and the united states senate. >> thank you, mr. chairman. i think you have handled this well throughout. i support you 100%. >> thank you. >> thank you. we did stop the clock there so it did not take from your time. >> oh, thank you. people always say i have the ability to turn people on. [laughter]

>> maybe you could start over again with your sentence, please. >> i hope i remember where we were. >> ok. >> senator, the right of property owners to have their day in court is a very important one, but there is a corollary to the right to have your day in court, which is that you have to bring it to court in a timely manner. because people who are relying on your assertion of rights should know when you're going to make them. and so there is a doctrine called the statute of limitations that says if a party knows or has reason to know of their injury, then that party has to come in to court and raise their arguments within that statute that sets

the limits of the action. >> i'm -- >> in the -- i'm sorry. >> please. i interrupted. i shouldn't have. >> in the did encase, the question was whether mr. diden knew that the state was intending to take his property and -- for what the state claims was a public use. and that it had plans to have a private developer take his -- they take his property and the private developer develop the land. so there was a full hearing by the village on this question of whether there was a public use of the land. mr. diden didn't claim in the

action before the courts that he didn't have notice of that hearing. he did not raise a challenge in that hearing to the public taking. and he didn't raise a challenge to the state's intent to have a private developer develop the land. now, in that case, the developer was developing not just mr. diden's property. it was one piece of property in a larger developments project. that larger development project had been based on thevilleage's conclusions from its very lengthy hearings in accordance with new york law that the area was blighted and that the area needed economic development. so to that issue became the

issue before the court in the sense of had mr. diden, knowing that he could be injured by the state's finding of public use and the state's decision to let a private developer develop this land, did he bring this lawsuit in a timely manner? and the court below and our court ruled on that basis that he hadn't. he had reason to know about the injury that could come to him. >> since mr. diden's claim was based on conduct of the developer, how could he ever have filed a successful claim under the standards that you just mentioned? >> mr. diden alleged in his complaint that the private developer had extorted him. extortion under the law is

defined as an unlawful demand for money. on this one piece of property within a larger development that the private developer was actively engaged in doing what he had contracted with the state to do, to revive the economic base by making investments in it, the private developer knew that mr. diden had his claims, the private developer had his agreement with the state, and so he was doing in -- at least this was the private developer's argument -- what he was entitled to do, which is to say we disagree. i'm claiming that i have a right under contract. you're claiming that you have a right under the takings clause.

let's settle this. i'm going to lose x amount of money. so you pay me that for me not to do what i'm entitled to do under the law. those were the claims of the parties in the action. in the end, the decision of the court was if you believe that the takings of your property were not proper under the public use, under the takings clause, and you knew that the state had entered a contract with this private developer, then you had knowledge that you could be injured and you should have come to court earlier. >> why was the situation in diden not the prohibitual taking articulated in kelo? how was this not some sort of extortion? if there wasn't a pretext in

the did encase where the developer says give me your money personally or we'll take your land, then what is a pretext? >> well, as i -- as i have described the case -- >> yes, i understand. >> the question comes up in the context of what did mr. diden know, did he have enough to know he could be injured, was there no public use to the -- to which the property would apply, and what rights did the private developer have with the state? and so the extortion question came up in a legal context surrounding the relative rights of the parties. so as i said, extortion is a term, a legal term which is if someone -- is someone demanding money with no lawful claim to it? i'm simplifying this. there are different definitions of extortion that apply to different situations, but in

the context of this case, that's the simplest description of the case, i believe. >> the second circuit panel in diden took over a year to issue its rulings, suggesting that you understood the novelty and importance of this case. yet your opinion dealt with mr. diden's fifth amendment claim in just one paragraph. did you believe that this was an ordinary takings case? >> well, cases present claims by parties and to the extent that mr. diden was raising claims that sounded in the issues the court was looking at in kelo. certainly if kelo had not come out, and the court had to, for whatever reason, determine that somehow the kelo decision affected the statute of limitations question, it may have had to reach the question.

but courts do often wait for supreme court to act on cases that are pending in order to see if some form of its analysis changes or not or inform whether a different look should be given to the case. but on the bottom line issue, kelo didn't change in the judgment of the panel the statute of limitations question. >> ok. regardless of the statutes of limitations, i am curious why you didn't elaborate on your kelo analysis and why wasn't this opinion published? >> well, kelo didn't control the outcome. the statute of limbses did. so there was no basis to go into an elaborate discussion of kelo. the discussion of kelo really was to say that we had understood the public taking

issue that mr. diden had spent a lot of time in his argument about, but the ruling was based on the statute of limitations ground, so the kelo discussion didn't need to be longer because it wasn't the holding of the case. the holding of the case was the statute of limitations. >> ok. on another case, the supreme court reversed you 6-3 just three months ago and entered each corporation versus river keeper. you had held that the environmental protection agency , which is the agency with expertise could not use a cost-benefit analysis and adopting regulations from the construction of water structures that had an impact on fish. rather, you interpreted the clean water act to hold that e.p.a. had to require upgrades to technology that achieved the greatest reduction in adverse environmental impact, even when

the costs of those upgrades were disproportionate to benefit. following long-established precedent, the supreme court held that the e.p.a. was reasonable in applying a cost-benefit analysis when adopting regulations under the clean water act. in reversing, the supreme court questioned your proper application of subtle law. that agency regulation should be upheld so long as they are reasonable. under chevron, agency interpretation of statutes are entitled to deference so long as they are reasonable. in other words, if they aren't capricious and arbitrary. do you find it unreasonable that the e.p.a. was willing to allow money to be spent in a cost-effective manner by not requiring billions of additional dollars to be spent to save a minimal number of additional fish? >> to be able to answer your question, i would need to

explain a little bit more about the background. the supreme court has now ruled in that case that the conclusion of the second circuit would not be upheld on this narrow question, but the question the second circuit was looking at is what did congress intend or mean when in the statute at issue it said that the agency had to use the best technology available to minimize an adverse environmental impact. those were the statute's words. in looking at that, the circuit applied general statutory construction principles, which is in our judgment what was the ordinary meaning of that and -- >> are you saying you're not bound by chevron? >> oh, no, absolutely not.

chevron speaks to agency action or interpretation, but ultimately the task of a court is to give deference to what congress wants. that's the very purpose of congress' legislation. what the court was trying to do there was to see the agency's interpretation in light of the words of the statute and how congress has used cob analysis in other statutes in this area. and determine what congress intended. so we looked at the language and it said just what it said. best technology available to minimize adverse environmental impact. we looked at how congress used cost-benefit in similar statutes and similar provisions -- or i shouldn't say similar. in other provisions. we noted that under the

statutes at issue when congress wanted the agency to use cost-benefit analysis, it said so. in this provision, congress was silent but the language in the panel's judgment was the language. and so in trying to discern what congress' intent was, we came to the conclusion, not that cost had no role in the agency's evaluation, but that congress had specified a more limited role than cost-benefit. we described it as keffs. -- as cost-effectiveness. and, in fact, we voted to -- voted our decision, sent the case back to describe to us exactly what the agency had done and why.

had it used cost benefit, had it used cost-effectiveness. but cost was always going to be a part of what the agency could consider. the issue was more in what approach did congress' words intend. and so agency deference is important, but congress is the one who writes the statutes, so you have to start as a court with what did congress intend. >> it seems to me like you're saying and ignoring the expertise of the statute that the agency was being arbitrary and capricious. >> not at all, sir. we were trying to look at the statute as a whole and determine what congress meant by words that appeared to say the best technology available had to minimize an environmental effect.

as i said, that does have and as our opinion said considerations of costs. but given that congress didn't do the cost-benefit, give the agency cost-benefit approval in the terms of this particular provision while it had in others, we determined that the agency and precedent interpreting provisions limited the use of cost-benefit analysis. >> in another 2004 administrative law case dealing with environmental issues, nrdc versus abraham, you voted to strike down a bush administration regulation and reinstate a clinton administration environmental rule that had never even become final. in this case, it appears you also fairly narrowly interpreted chevron deference when striking down e.p.a.

adoptions of reasonable regulations. if you were elevated to supreme court, do you intend to replace an agency's policy decisions with your own personal policy opinions as it appears you did in both -- in the abraham case? >> no, sir. in that case, we were talking about and deciding an issue of whether the agency had followed its own procedures. in changing policy. we weren't substituting our judgment for that of the agency. we were looking at the agency's own reppings as to the procedure that it had to follow in order to change an approach by the agency. so that was a completely different question. with respect to deference to administrative bodies in case after case where chevron

deference required deference i have voted in favor of opposing administrative -- in upholding executive and administrative decisions. >> this will probably have to be my last question. since 2005, you have been presiding judge on a panel of an appeal filed by eight states and environmental groups arguing that greenhouse gases are a public nuisance that warrant a court-imposed injunction to reduce emissions. your panel in connecticut versus american electric power has sat on that case for 45 months or nearly three times the average of the second circuit. why after four years have you failed to issue a decision in this case? >> the american bar association rule on code of conduct does not permit me to talk about a pending case. i can talk to you about one of

the delays for a substantial period of time in that decision, and it was that the supreme court was considering a case, a massachusetts case that had some relevancy or at least had relevancy to the extent that the panel asked the parties to brief further applicability of that case to that decision. >> ok. thank you, mr. chairman. >> thank you, senator grassley. senator feingold. >> judge, let me first say, i don't mind telling you how much i'm enjoying listening to you. both your manner and your obvious tremendous knowledge and understanding of the law. in fact, i'm enjoying it so much that i hope when you go into these deliberations about cameras in the courtroom that you consider the possibility that i and other americans would like the opportunity to observe your skills for many years to come in the comfort of our family rooms and living rooms. >> you were a very good lawyer,

weren't you, senator? >> but i'm not going to ask you about that one now that we have covered it. let me get into a topic that i have discussed at length with two most recent supreme court nominees. justice roberts and justice alete owe. in 2002, you spoke at a law school about some of the legal issues that have arisen since 9/11. you started your remarks with a moving description of how americans stood together in the days after those horrific events and how people from small midwestern towns and new york city found their common threads as americans. as you said in that speech, it's hard to imagine that something positive could ever result from such a tragedy, that there was a sense in those early days of coming together as one community, that we would all help each other get through this. and it was, of course, something that none of us had ever experienced before and something i have often discussed as well, but i have to also say in the weeks and

months that followed, i was gravely disappointed that the events of that awful day, the events that had brought us so close together as one nation were sometimes used to justify policies that departed so far from what america stands for. so i'm going to ask you some questions that i asked now chief justice roberts at his hearing. did that day, 9/11, change your view of the importance of individual rights and civil liberties and how they can be protected? >> september 11 was a horrific tragedy, for all of the victims of that tragedy and for the nation. i was in new york. my home is very close to the world trade center. i spent days not being able to drive a car into my neighborhood because my neighborhood was used as a staging area for emergency

trucks. the issue of the country's safety and the consequences of that great tragedy are the subject of continuing discussion among not just nor'easter, but the whole nation. in the end, the constitution by its terms protects certain individual rights. the protection is often that specific. many of its ferms are very broad. what is an unreasonable search and seizure? what are other questions or facts specific? but in answer to your specific question, did it change my view of the constitution, no, sir,

the constitution is a timeless document. it was intended to guide us through decades generation after generation to everything that would develop in our country. it has protected us as a nation. it has inspired our survival. that doesn't change. >> i appreciate that answer, judge. are there any elements of the government's response to september 11 that you think maybe 50 or 60 years from now we as a nation would look back on with some regret? >> i'm a historian by undergraduate training. i also love history books. it's amazing how difficult it is to make judgments about one's current position. that's because history permits us to look back and to examine the actual consequences that have arisen and then judgments

are made. as a judge today, all i can do, because i'm not part of the legislative branch. it's the legislative branch who has the responsibility to make laws consistent with that branch's view of constitutional requirements and its powers. it's up to the president to take his action. and then it's up to the court to just examine each situation as it arises. >> i can understand some hesitance on this, but the truth is that courts are already dealing with these very issues. the supreme court itself is -- has now struck down a number of post-9/11 policies. you yourself sat on a panel that struck down one aspect of the national security letter statute that were expanded by the patriot act. so i would like to hear your thoughts a bit on whether you see any common themes or important lessons in the court's decision.

what is your general understanding of that line of cases? >> that the court is doing its task as judges. it's looking in each of those cases at what the actions are of either the military and what congress has done or not done and applied constitutional review to those actions. >> is it fair to say given that line of cases that we can say at least as regards to the supreme court it believes mistakes were made with regard to the post-9/11 policies? in each of those cases, there was a -- an overturning of a decision either by the congress or the executive. >> i smiled only because that's not the way that judges look at that issue. we don't decide whether mistakes were made.

we look at whether action was consistent with constitutional limitations or statutory limitations. >> in each of those cases, there was a problem with either a constitutional violation or a problem with a congressional action, right? >> yes. >> that's fine. as i'm sure you're aware, many of us on the committee discussed at length with the prior supreme court nominees the framework for evaluating the scope of executive power in the national security context. they have already discussed this at some length. bret: as the questioning continues from senator russ feingold, we want to take us out here and talk a little bit about one case that you heard senator chuck grassley talk about. this committee is compromised of 12 democrats and seven republicans. fair and balanced. we will hear from both sides of the aisle in their questioning of judge sotomayor. one of the cases that senator grassley was talking about was a property rights case called diden versus village of port

chester. it's a 2006 case. when you listen to some of this stuff, can you blaze over, not knowing about the case. we thought we would remind, talk about that case. we have correspondent shannon bream with us live in our d.c. control room. tell us about diden versus village of port chester and what's important about this in regards to judge sotomayor. >> this is all about property rights and eminent domain. people are very sensitive about land -- private land essentially being taken. it's one thing to justify it for possibly a government use for a hoft. even there it's going to be a fight. in this case, this did encase, it involves port chester, new york. we're talking about private land being taken for a private use in this case. there was a man who owned this tract of land. he wanted to develop it for a c.v.s. this area was going to be developed into a shopping center of sorts. well, the municipality there,

port chester actually delegated its authority in this matter who somebody who was actually a developer of this project. the private property owner went to him and said i want to put a c.v.s. here, a drugstore, that kivende thing. he claims that person who was del kated with the authority, the developer said to him pay me $800,000 or give me a piece of the action of that store or i am not going to let you do it. he says he felt it was extortion so he didn't do it. he says the very next day, the municipality there condemned his land and eventually took it away from him with plans to put a walgreen's, another drugstore on that same spot. this was fought all the way up to the second circuit where it came before judge sotomayor. it's interesting to note the plaintiff in this case said she was very engaged. we actually saw it after the oral arguments we were going to win this case. they lost that case. they lost the land they had slated for a drugstore to be taken away and condensed by a municipality to then be used as a drugstore. there is a lot of controversy about this case. you heard sotomayor talking about it today.

she kept trying to differentiate it from kelo saying it was a statute of limitations case more than an eminent domain case. senator grassley knew what he was talking about. he wanted her to be pushed on that point. i have a feeling that it's not done when we see another g.o.p. senator come up, it will come back. it was one of her most controversial cases. i can tell you even some of her supporters have said she got this one wrong. they knew it would present some controversy for her and that it would come back to haunt her here. certainly a bit of controversy with that case this afternoon. bret? bret: shannon, you talk about kelo versus new london. a decision by the supreme court. it's in which the town of new london, totten, took the home of suzette kelo because the town determined that it was for the public good. they held public hearings. >> the interesting thing that

came from that case as well, it really galvanized a movement about property ownership rights and eminent domain. people got very organized following that case. you may remember hearing something about the fact that a particular group got together, wanted to go to justice souter's beloved new hampshire home and see what they could do about declaring eminent domain in that case. they were very serious about raising money and organizing an effort to try to take over his beloved homestead there so that in their words he would know what it felt like. so people have very closely been following these property rights issues because of kelo. since kelo. we had a feeling it would bubble up on judge sotomayor as well. she says now kelo is established precedent. when a case comes directly on point with kelo of course i will be constrained to stick with that case. she tried to differentiate this case out of the second circuit. every case is so fact specific. if you want to get very technical on legal issues, you can differentiate just about any case from another. it's clearly something she wanted to do in the did encase.

bret: shannon bream, thank you so much. it's great to get the perspective of the different cases as they are talked about in this learg. -- in this hearing. we'll continue to do that. we'll come back with the hearing after this break. between consuming less and conserving more. there is one important word: how. and it is the how that makes all the difference. to the planet we all share.

megyn: we'll check in with our faneiul from "the weekly

standard ." juan williams with us also. also with us, a surprise guest. washington managing editor and vice president of news, bill sammon who kicked wallace out of the chair and said it was time for me to take over. >> i was taller. i got rid of him. megyn: this -- martha: remember how upset people were about this. remember that pink home that was on a hill that got taken. she was so upset about it. there was a question about what's going to happen to your property rights under this supreme court. if they are ruling that the government can basically come in and take away your home, that's a matter that concerns you. that's why grassley was trying to talk to sotomayor about where she falls on this issue and why she decided this one case against this guy who had -- it wasn't like his property was being taken for the public good. it was taken for yet another pharmacy. he had a c.v.s. they wanted to put in a walgreen's.

this guy got ticked off and sued. do they have a point in cross-examining sotomayor that, look, this guy got the short end and you didn't do anything about it? >> i think she is -- people worry that she is hostile to private property rights. this case demonstrates that. you know, she sides with basically a village that was essentially extorting these landowners. you are extorting. she sided with them. megyn: there are arguments on the other side that this panel she was on on the second circuit deciding this had pretty good legal footing. >> right. we heard from shannon. i think there are people who made strong arguments on both sides. obviously shannon's report says even some of sotomayor's supporters have questioned the way that she reasoned to this. we have seen other her

dismissal with the wave of her hands without engaging in them fully was a mistake. there was a "washington times" editorial that said that didn't do just -- justice to the gravity of the issues involved. megyn: it looks like the other judges on the panel were george w. bush appointees. they were republicans. they agreed with her analysis of it. she was telling grassley, look, i decided it mostly on statute of limitations grounds. they threatened to take this property back in 1999. the dispute was ripe in 1999. the property owner didn't file suit until five years later. the statute of limitations had run. that's the basis on which i ruled against him and these other two panelists ruled against him. what do you want me to say? let me ask you this, juan. is this fair to be looking at any one case. we have this case on property rights. we have ritchie on affirmative action or employment rights, however you want to phrase it. you could go through any judge. this woman has been on the bench since 1992. you could do this to any judge

and pull one case and try to extrapolate it into a judicial philosophy she shares across the board. is it fair? >> fair doesn't matter. this is politics and this is political theater. what you have here is the senator is trying to set some limits, saying we didn't like this decision. we found it outrageous. i think if you were to listen to senator grassley, you would pick up that he basically thought that the complainant in this case was being extorted and beaten up and that he should have had some recourse by going to the courts. the courts did not help him. what you will see is sotomayor an her fellow judges on the court are basically saying we're going by the dog. the statute of limitations ran out. we didn't file in time. as he is trying to get away from really the heart of the matter. grassley keeps coming back and saying where is your heart for this poor person? that's very interesting because obviously the republican senators for the most part say we don't want you to go with the heart, we want you to go with the head. but this is the same kind of thing. her standard is this is a book.

this is what i had to do as a judge. brett: it's interesting that these republican senators are going at these rulings. specific cases in her 17-year career. not back to the speeches which we know have been so controversial. this is a ruling that actually she made. >> what they have to do is get back to the speeches. they want to build a basis in terms of saying we were serious about the law. we believe there are some roles in your record. it's like you're in a courtroom and the prosecutor is making a presentation saying you're not the judge which you pretend to be. you're not the person you pretend to be. i wonder how it's playing to the home audience. the home audience has been told she is a mainstream american judge. some of the things she made oft bench might be out of bounds. her rulings are within the body and even in this case her fellow republican appointees shared in the ruling. but they are making the case that they believe in terms of if you look just at the substance of her work, there

are problems. >> jeff sessions when you talked to him earlier today said he hoped this would be an educational moment. i think his 30 minutes would constitute an educational moment. i think subsequently we have seen three senators, one after another after another, sort of wallow in legal technicalities that are not unimportant for the purpose of questioning her certainly but in terms of using this as an educational moment if that's in fact what republicans wanted to do. i don't think that they have actually succeeded in doing that. people are going to be flipping the channels. >> at this level of the game, don't you think the purpose is to exploit the potential weak spots on the substance, on the cases. not necessarily her speeches, not necessarily her private life? i'm reminded of when judge alete owe was there taking questions from people who were insinuating that he was a racist and reduced his wife to tears and she had to leave the room. this by contrast is on the merits, this is on the cases. it's get ago little arcane and down in the weeds in some

cases, but they are probing those weak points to see if there is a vulnerability there. i think that's the proper role of this committee. >> i would go even further. it's slowl an obligation to discuss the merits of these and to try to exploit those things. my argument is simply they are not doing it very effectively. >> to what end is the question. where are they going with this? the only thing i can see -- that's why i say it's political theater, is you're trying to excite the base. people in the republican base say property rights are really important to us. we think the court is headed in the wrong direction. here is a signal coming from republicans on the committee. >> that's a legitimate issue. >> look, it's not a legitimate issue if you're thinking about simply the confirmation of judge sonia sotomayor. i don't think it's going to stop her confirmation. >> we talked about how eminent domain had been the hot button issue a couple of years ago. it has become even more controversial since the obama presidency took over. conservatives are increasingly worried about this growing intrusiveness of government in every aspect of life. now you're talking about government taking private property. it's a hot button issue.

i think it's a legitimate topic of discussion at this time. megyn: how much of the problem is the delivery? i think part of sessions' success was he was easy to understand. he was ready to go. grassley, we're sitting here with a panelist, we have the internet. we have our supreme court correspondent. we get it. bret: people literally glazed over. megyn: do you think the average person at home understood grassley's point? do you think the average person at home understood orrin hatch as he was trying to go through gun rights and the second amendment? >> the onus is on the lawmakers to not only probe for those vulnerabilities but to do so in a way that is persuasive to the audience so they can make their points. they are not doing that. bret: you know who made them most effectively? dianne feinstein when she said she was getting a lot of calls about this judge being an activist. that strikes people with this democrat saying she is get ago lot of calls. on the other side of the break,

we'll check in with carl cameron who said that chuck grassley was going to be fun, and he was not wrong. [captioning made possible by fox news channel] ah! that's fiber one cereal. frosted shredded wheat! yeah, but i'm throwing it away. why? you seem to really like it. i do. my wife wants me to. she says there can't be any fiber in it. (mr. mehta) it's got a third of a day's worth of fiber. it tastes way too good to have fiber! ten crunchy little layers frosted to perfection. i eat what i want. she's here, isn't she? she is. hey. (announcer) fiber one frosted shredded wheat. cardboard no. delicious yes.

are more than words here. it's personal. i have diabetes. rodney's kid too. so we're so proud to manufacture... the accu-chek® aviva meters and test strips... here in the u.s.a. plus, we've proven you'll waste 50% fewer strips... when you use our meter, which means greater savings... for people with diabetes, like me. now that's a true american value. accu-chek® aviva. born in the u.s.a. bret: welcome back. we'll dip back into the sotomayor hearings in just a minute. we want to check in with carl cameron.

you said that chuck grassley was going to be fun. we were skeptics. then this moment did happen. >> stopped the clock there so it did not take from your time. >> oh, thank you. people always say i have the ability to turn people on. brit: and the laughing continued there for quite some time, carl. that was fun. >> look, all these senators know each other. they have met the nominee a number of times in some cases. there is a level of sort of familiarity that is betrayed by the formality of these hearings. there is an undercurrent, too, of great satisfaction by democrats. a certain level of frustration by republicans. they recognize that they are discussing the nominee up. they recognize that justice sotomayor appears to many to have contradicted herself this morning. but they don't see that there

is any great meltdown as lindsey graham called the only thing that would necessarily derail her nomination. in talking to some of the conservative critics of her just a little while ago, bret, here's what they are saying. a vote for judge sotomayor would be a vote against judicial restrained and for making policy from the bench. against the second amendment, for racial preferences, against property rights. that's the kelo case you were talking about there a moment ago. for taxpayer-funded abortion. and for foreign laws and forming u.s. policy and jurisprudence, and ultimately even against the death penalty. there are huge leaps and conclusions being drawn there but it may speak on some level to a sense of frustration that conservatives have that there are great areas of inconsistency, conflicts and disagreement, and yet at this point it looks like she continues to march forward toward confirmation. megyn: carl, are they building that case through each senator? it's interesting to listen to you go throuhe