gretchen: sing it, guys. [captioning made possible by fox news channel] captioned by the national captioning institute -- www.ncicap.org -- megyn: day two, everyone, of question for judge sonia sotomayor, the supreme court nominee facing some tough questions yesterday from her critics on capitol hill. will we see more of the same today? good morning, everyone. i'm megyn kelly here in the nation's capital. bret: and good morning, i'm bret baier. judge sotomayor heading to capitol hill this morning, looking to win support in her bid to become the nation's first ever hispanic justice. as you look live at the hearing room in the hart senate office building. around 9:30 eastern the senate judiciary committee will resume its first round of questioning for judge sotomayor. eight more senators are on tap today beginning with republican john cornyn of texas and ending

with democrat al franken of minnesota. just like yesterday each senator will get 30 minutes to ask questions. and once this round is finished, the committee heads into a closed session to discuss sotomayor's nomination further. basically going over her f.b.i. file behind closed doors. then it is on to round two, supposedly. megyn: before we get to the hearings, a quick update on some other headlines. a live look at the white house where president obama will make a big push today for his health care plan, this after house democrats unveiled their $1.5 trillion plan that would basically make health care a right for all americans, one paid for by the so-called wealthy americans. major garrett will have a live report from the white house in just a few moments. plus we are following two major stories overseas this morning. a massive earthquake strikes the coast of new zealand, triggering a tsunami warning. the quake had a magnitude of 7.8. scientists say the center was

located in a small town on a south island so far there are no reports of major damage or injuries. and a passenger plane has crashed in iran. the fear is that all 168 people onboard are dead. the caspian airlines jet was heading to tehran to ar media. according to iranian state tv the crash happened in a village in the northwest part of the country. and back to the confirmation hearings in washington which get underway in less than a half-hour from now. that's exciting. what's going to happen today? at the begin the morning at the site of the hearings. not too far from the u.s. capitol and not too far from the supreme court. sonia sotomayor would like to show up at work there this october. the hart senate office building is where it all goes down today, room 216 to be act. that's where we find our own chief political correspondent who yesterday gave us a look underneath the table that judge sonia sotomayor is sitting at, gave us a look at the little riser on which she is resting

her foot. what do you have for us today, carl? [captioning made possible by fox news channel] >> other than a chill to the bone because it's so air-conditioned here, a look at what's going to be the last 30-minute q & a. mostly democrats today. it will begin with ben cardin of maryland, and -- cardyn of maryland and end with al franken, the newest senator. john cornyn of texas will kick off first. look for him to aggressively challenge sonia sotomayor on what he believes are her inconsistencies in yesterday's testimony and a lifetime of speeches and lectures. he'll go after that hard. he'll also explore the richie case, the case in new hampshire about the firefighters and discrimination. that will be a big part of the republican agenda. only going to hear from two today. it really raises the question about how this is going to work. i want to show you some video. people waiting outside. there's about 150 or so gathered out there since quite a while this morning. they will shuttle in several

hundred members of our public. a big crowd coming in to see this. and it's cold. we want to warn everybody, it's 85 degrees outside. this is going to be a marathon if we have a second round it may started late this afternoon or this evening which means it's going to be a long day. this is lee ross, our supreme court correspondent. normally works with shannon who's back with you in the studio. and this morning i swiped her snuggler to keep us all warm here. so lee's well representing us. some people call it a snuggler. karen has one of her own, calls it a slanket, sleeves for a blanket. it's 64 here now. 80 degrees outside. can you see your breath? can you almost see your breath here this morning. watch for it to be very tough from the two republicans. but, again, they're going to be outnumbered in these last 30-minute questions. basically 3-1. there are a lot of questions. to give you yn idea of the

tone -- an idea of the tone here, last night the senator from arizona went to the microphones outside the hearing room and said that what he considered to be sort of a lack of forthcoming answers from p the -- from the nominee to be good reason to raise questions about her honesty. when you're raising the questions of honesty, that's where you start today. megyn: he's our guest in moments. the other thing is, watching you freezing inside the hart senate office building reminds me of being on the set with glen beck who also loves it at about 60 degrees, not to mention shepherd smith. even my own cohost in the mornings loves a freezing studio. we always argue. now that i'm pregnant, i don't mind as much. i used to give them a hard time. before i let you go, you mentioned a second round of questioning. we started yesterday morning. we went all day. we begin again today. we have seven more to go through this morning before we get through round one. is the second round of questioning a foregone

conclusion? >> starry decisis, megyn. it means respect precedent. the precedent has been at least two, often three rounds for supreme court nominees. samuel alito and john roberts started with 30, to 20, to 10. the republicans think it's a given there will be a second round but the democratic chairman of the committee has been vague about it. with two dozen witnesses apart from the nominee herself scheduled to start tomorrow, the question is when. it's unlikely they would ask her to come back if they would cut her loose after first round. megyn: thank you, carl. bret: never let them see you sweat. i don't think they'll be sweating in that room today. megyn: do you like it freezing cold in the room? bret: yes. it helps. it fires you up. today questions on the fiery hearing yesterday and now a few hot spots you may have missed. >> i want to state up front, unequivocally and without doubt,

i do not believe that any ethnic, racial or gender group has an advantage in sound judging. >> you deal with a famous quote of justice o'connor in which he says "a wise old man should reach the same decision as a wide old woman." and you push back from that. you say you don't think that's necessarily accurate. >> i knew that justice o'connor couldn't have meant that if judges reached different conclusions, legal conclusions, that one of them wasn't wise. that couldn't have been her meaning because reasonable judges disagree on legal conclusions in some cases. so i was trying to play on her words. my play fell flat. it was bad. >> lawyers anonymously rate judges in terms of temperament. and here's what they said about

you. "she's a terror on the bench." "she's temperamental, excitable. she seems angry." "she's overly aggressive, not very judicial. she does not have a very good temperament." when you look at the evaluation of the judges on the second circuit, you stand out like a sore thumb. in terms of your temperament. what is your answer to these criticisms? >> i do ask tough questions at oral argument. >> are you the only one that asks tough questions in oral arguments? >> no not at all. bret: some tough questions came from arizona republican john kyl, the senate minority whip and member of the judiciary committee. thanks for being here this morning. >> you bet. thanks. by the way, it's really hot in that room. i don't know how you get off saying it's cold. [laughing] bret: when it gets going, i guess it's hot in there.

some conservative commentators and analysts looked at judge sotomayor's explanation of her speeches yesterday in testimony and said that she was being disingenuous. other goes so far as saying she wasn't being honest. how do you come down on her explanation of the speeches in which she dealt with ethnicity and gender yesterday? >> frankly, i wasn't persuaded. i had a good exchange with her. she finally concluded and said i really used bad phraseology. but she didn't refutate what she had said. and i thought the meaning was unmistakable. i thought it would have been fairly easy for her to say, you know, the idea that i was trying to express, that gender and ethnicity will make a big difference in judging and not to be repeatated but to be advanced, that's not something that i should have told those students. i should have followed them, of course that lady justice whriend blind and they would have to set their prejudices aside if they ever got to be a judge. she didn't do that. so i am still unpersuaded that

she is refutated what she said. she may not be comfortable with the words she used, but idea seems to have stuck. bret: you're not persuaded, but do you think she was being dishonest? >> well, these witnesses always try not to answer the question. they always try to tell you what they think you want to hear. and i don't mean that in a disparaging way just for judge sotomayor. but i really would hope for more candor from the witness. after all, she is seeking a lifetime appointment. once she's confirmed to the court, nothing can be done to replace her. as my colleague senator durbin, a democrat, pointed out, she has the burden of proof here. and i don't think she's carrying the burden of proof when she's simply in a defensive stance, seeming to agree with everything, saying it was the wrong choice of words, but never getting to the heart of what she was arguing in all of these speeches. it wasn't just one speech, it

was numerous speeches. there was a theme to it. she said there was a theme to it. she made her argument. she backed it up with evidence. this wasn't just some toss, throw away line. it was a thesis for a speech. it was reprinted in law review articles. and i have yet to hear her say that was incorrect, i shouldn't have argued that point. or if i did, i should have concluded by saying everything i said if you're ever a judge, toss it out the window because you have to get rid of your biases and prejudices when you judge. bret: senator, there's been a lot of talk about how this is a foregone conclusion as far as the vote. do you think on the committee the seven republicans will stand firm in voting against judge sotomayor? >> no. and i might say that unlike democrats who are pretty much in lock step for her, republicans are not, first of all, deciding one way or the other. and i think at the end of the day there will be some who vote for her, some who vote against her bothen the committee and in the senate. there is no republican position on her confirmation.

bret: ok. senator john ky -- jon kyl, thank you for your time. >> you bet. megyn: he is so good he comes with his own cheering session. bret: did you hear that? megyn: that's how you should travel. bret: i think they were doing the waive. megyn: who are those people and why are they so excited about jon kyl? we'll try to find out. we're moments away from a brand new lightning round on capitol hill. judge sotomayor looking to become justice sotomayor. she is set to take the hot seat about 20 minutes from now. we go live to the senate as soon as things get underway. ondeck, one of the most conservative pro-life senators on the committee. and al franken up is this morning. for all the latest on the sotomayor confirmation hearings and all your other news, you can check out at foxnews.com.

bret: special fox news coverage continuing with the confirmation hearings of supreme court nominee sonia sotomayor. eight senators will each get a half-hour to challenge, complement, or ask sotomayor for clarification on her judicial record and comments.

house democrats, in the meantime are in the process of marking up their new health care overhaul plan. president obama is expected to endorse the measure at a rose garden event this afternoon. a house democratic aide saying the 10-year program could cost $1.5 trillion. major garrett is live at the white house. so, major, how do they expect to pay for all of this? that is the question always. >> it is the question, bret. so many things are happening even as the confirmation hearings chuggle on. the office pit together a preliminary analysis of the cost of the bill over 10 years, $1 trillion. though there are some on the democratic side who say, yes, it's possible that pricetag could go to $1.5 trillion, although officially house democrats dispute that. but here's a real very interesting part of that c.b.o. analysis, bret. it said that 85% of those estimated, $1 trillion in costs, would occur in the last five

years of that 10-year plan. what does that suggest? that after that 10-year time horizon with 85% of the costs in the back five years, you could have a cost explosion after that 10-year horizon. democrats say whatever the cost they're going to cover it. how? well, initially they're going to cover it with taxes on what they describe as the super wealthy. anyone making over as a couple more than $350,000 up to $1 million with surtaxes rising from 1% on $350,000 to 5.4% over $1 million, even centurist democrats in the house think that might be the wrong way to go. they're not onboard yet. democrats with nancy pelosi called this draft the second one so far, a starting point it appears inevitable they're going have to have a third draft just to get it through the house and haven't even gotten to the complications on the senate side. bret: it's going to be interesting to watch. we'll be tuning in. thank you very much from the north lawn. >> sure. megyn: back to the sotomayor hearings.

joining us from the senate judiciary committee is a democrat from minnesota, one of two because al franken is also on the committee. senator, good morning to you. >> good morning. great to be on. megyn: it's great to have you. we covered these hearings all day yesterday and saw the nominee take a couple of hits from a couple of republicans. but what was your view when the day was done? did you think that she handled herself well or would you say she took a couple of scuffs? >> i'd say she handled herself very well. she's solid i think you just heard senator kyl saying no one position for the republican senators. they've been very civil and dignified. i'm sure her friends didn't like some of the questions they asked, but they asked questions that were based on decisions that she has made, decisions based on things she said in speeches. i don't think anyone can say it was out of bounds. so i think so far it has been a civil and dignified hearing. and she has handled herself incredibly well.

she's getting a lot of the same questions. my own personal view is she has 17 years on the bench. when you really look at her record, she's not an activist. she's more of -- shows judicial modesty an judicial activism. and she's someone that has been very open-minded in decisions. sometimes making decisions where despite sympathetic plaintiffs, like in the t.w.a. trash case, she dissented in that case and say, you know, as sympathetic as these families are, the law just doesn't allow them to get a certain type of damage so i think when that has come out yesterday, and when you hear more of it today, eight more senators, four hours of questions. megyn: it's not something that's acknowledged in any way by the senators or during this process. but how important is it, do you think, to have another woman on the high court? we only right now have one, one out of nine. >> you know, i think first of all, justice ginsburg was talking about an article over the weekend.

she talked about how she didn't see women and men necessarily coming to different types of conclusions. but she thinks it's important for the rest of the country to see that a woman can serve on the supreme court. i thought one of the most touching stories was when she had just had pancreatic surgery and three weeks later she went to the state of the union. she said the reason she did it people were shocked she was there that she wanted to say, hey, there is a woman on the supreme court. so i think in that way, because you want to encourage everyone in this country to do as well as they can, to go to college to pursue their dreams. and i think having women on the court or women in the united states senate, we now have two women on the committee, for that reason it's a good thing. megyn: and finally, let me ask you, the nominee yesterday disagreed with president obama on the appropriate standards for selecting judges saying she does not believe heart matters, that you don't decide cases based on what is in your heart but what's in the law. who are you siding with, the president or the nome knee?

nome -- nominee? >> being a former prosecutor, even if i wouldn't agree sometimes, i would agree more with the judge on this one. megyn: got to go. sorry. >> it was great to be on. i got to get down there myself. thank you. megyn: thank you so much, senator. ♪ well i was shopping for a new car, ♪ ♪ which one's me - a cool convertible or an suv? ♪ ♪ too bad i didn't know my credit was whack ♪ ♪ 'cause now i'm driving off the lot in a used sub-compact. ♪ ♪ f-r-e-e, that spells free credit report dot com, baby. ♪ ♪ saw their ads on my tv ♪ thought about going but was too lazy ♪ ♪ now instead of looking fly and rollin' phat ♪ ♪ my legs are sticking to the vinyl ♪ ♪ and my posse's getting laughed at. ♪ ♪ f-r-e-e, that spells free- credit report dot com, baby. ♪ you have questions.

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bret: expecting judge sotomayor to arrive at the hart senate office building in just a matter of moments as day three begins, the second day of her questioning. joining us now to give an overview of what to expect and what we have heard already, our all-star panel from the "weekly standard," fox news contributor steve hayes, fox news contributor juan williams and host of "fox news sunday" chris wallace. chris to begin with, where are we now heading into this second day of questioning after yesterday? your assessment of how the judge stands, how she did and what we perhaps look forward to today. >> well, it's interesting. i went through all the papers to try to get a sense of how it played yesterday. i think the most interesting analysis was in the "the washington post" by one of their best columnists, dana milbank.

he was counting the number of blinks, the number of times judge sotomayor blinks. she blinks a lot. i don't know who counted this but during leahy's questioning he asked her about the wise latino remark. she blinked 247 times. then when sessions asked her, she blinked 146 times. her blink rate went from 100 times a minute during the morning session to a calmer 50 times a minute during the afternoon session so that is what "the washington post" has to offer about her performance. i thought personally the best comment somebody made in the papers today is that all of this stuff about a wise latina, she was a wise latina. not to say she would reach a better conclusion than a white judge or not. but it's a landmine. you are going out of your way to try not to fall into the various traps the republicans put out there. even some inadvertently, the democrats might. when they took her in an area that she wasn't necessarily

comfortable with, she stayed out of it. she knows. she can count votes. as lindsey graham said, she needs a meltdown to jeopardize her nomination. she didn't even come close to a meltdown. bret: speaking of counting votes, just asked senator kyl whether all seven republicans were going to stand and vote against her, judging by what he's seen so far. he clearly said no. >> yeah. that's pretty interesting. immediately i started thinking, ok who might not vote for her? who might vote for her or vote her out of the committee? i don't think she had a good day yesterday. i don't think she was beaten up as badly as some other people might. think she had an ok day. i think she came off more as a competent latina rather than a wise latina. i think one of the things we'll see today, as john cornyn suggested earlier, is resolving differences between the speeches we've seen her give over her long career and the things she said yesterday. two different people. it's a study in contradiction. she needs to resolve some of

those. the other thing i think we'll see is senator tom coburn talk to her about an issue that when you look back at the confirmation hearings over the past two decades, really one issue has been at the center and that's abortion. we've heard next to nothing about that. a couple mentions of it yesterday. but it hasn't consumed the confirmation process like we've seen in the past. i expect tom coburn will ask her about that. megyn: juan what do you think sotomayor needs to do today and what do you think these republicans who are fighting an uphill battle and only have a couple of senators left versus the five others or six others on the democratic side, things are lopsided what do they need to do to make their impression? >> i think back to yesterday judge sotomayor was all about sort of apologizing for her statements about wise latina, saying that was an effort, rhetorical flourish that fell flat, it was bad, etc. and moving on then to try to make the case that, you know what, those are statements made in a speech, i was trying to inspire young people, etc. it all came out to me as defensive.

it came off as if the republican senators managed to change the conversation from her qualifications to one about racial politics. megyn: here's the nominee arriving for her third day on capitol hill, second day of questioning. greeting her family and supporters who have been there each morning, as we have seen, and we'll see the questioning resume momentarily. sorry, juan. want to let you complete your thoughts. >> wearing black today. megyn: she didn't get the memo about the cranberry. >> i think i'm in dark blue. >> i think she also went so far sooz say even president obama was wrong. it's not just a matter of qualifications. again, she's trying to get back to qualifications. and all of her friends, supporters on the democratic side, tried to bring it back to qualifications and to her judicial record. i think the republicans succeeded, though in portraying her as an activist judge and to bring to the forefront this argument about affirmative action, about race in such a way as to suggest is she going to change the law because of her presence on the court, because of her sensibilities, because of

what she said in those speeches about being latina and female? bret: can we, migin and chris, talk -- megyn and chris, talk about the confirmation hearing, the process and the confirmation of john roberts and samuel alito? what you saw then and what you're seeing now. >> i don't know that it was so different. obviously it was a republican nominee. and you have the across the street. it was role reversal. democrats were going after the nominee and the republican was defending. they made a big deal, as megyn pointed out yesterday, about the student group, the concerned -- megyn: alumni of princeton. >> yeah. and just as the democrats and republicans have in this particular case about the preek puerto rican fund, i thought the democrats were tougher on alito and roberts than the republicans have been on sotomayor. do you agree with that? megyn: i absolutely agree with that last statement. the cross-examination of sam

alito was downright brutal. mrs. alito was in tears and it wasn't because she was over reacting. they were very tough on him. senator kennedy and joe biden were, too. but kennedy all but called him a bigot and would not get off of that to the point where arlen specter had to begin the hearings the next day by reading a statement underscoring that the nominee had almost had no connection with that group. a lot of people think that never should have happened to sam alito and nothing similar should happen to sonia sotomayor. what today brings remains to be seen. bret: i mentioned conservative analysts and commentators. when you looked at the liberal commentators, columnists, analysts, it seemed to be a different hearing that they were looking at because they were going after republican senators for going after judge sotomayor. from what i saw yesterday, they were focusing on her speeches, her rulings, and not her personality. except for lindsey graham who got into temperament.

megyn: and where she contradicted herself, yesterday where she came out and said x where previously she said not x, they zaire yoad -- zeroed in on it. that's good cross-examination. that's how they teach to you do it in law school and almost all of these senators are lawyers. >> actually, real quickly, the democrats have gone out of their way to praise the republicans for being so respectful. think they want to kind of wrap her and keep saying, you be respectful to her. they would be happy to have a kind of rope a dope strategy here. bret: the chairman is gaveling into session. it will be interesting to see if they do in fact go to eye second round of 20 mien -- a second round of 20 minutes per senator. we don't know the logistics. let's listen to the hearing. >> judge sotomayor, yesterday you answered questions from 11 senators. frankly, i feel you demonstrated your commitment to the fair and

impartial application of the law. you certainly demonstrated your composure and patience, and your extent of legal knowledge. today we'll have questioning from the remaining eight members of the committee. and then justice set the schedule. once we finish that questioning we will arrange a time to go into the traditional -- something we do every time, the supreme court nominated closed door session, which is usually not very lengthy. and then go back to others. i talked with senator sessions. we will then go over a second round of questions of no more than 20 minutes each. i talked with a number of senators who told me they will not use anywhere near that 20 minutes, though every senator has the right to do it. and i would hope we might be able to wrap it up. we're going to go to senator

cornyn, himself a former member of the texas supreme court, former attorney general. and senator cornyn, it's yours. >> thank you, mr. chairman. good morning, judge. >> good morning, senator. it's good to see you again. >> good to see you. i recall when we met in my office, you told me how much you enjoy the back and forth that lawyers and judges do. i appreciate the good humor and attitude that you brought to this. i very much appreciate your willingness to serve on the highest court in the land. i'm afraid that sometimes in the past these hearings have gotten so downright nasty and contentious that some people are dissuaded from the willingness to serve, which i think is is a great tragedy. of course, some have been filibustered. they have been denied the opportunity to have an up or down vote on the senate floor. i told you when we visited in my

office, that's not going to happen to you if i have anything to say about it. you will get that up or down vote on the senate floor. but i want to ask your assistance this morning try to help us reconcile. two pictures that i think emerged during the course of this hearing, one is of course, as senator schumer and others talked about your lengthy tenure on the federal bench as a trial judge and court of appeals judge. and then there's the other picture that has e emerged from your speeches and your other writings. and i need your help trying to reconcile those two pictures. think a lot of people have wondered about that. i guess the reason why it's even more important that we understand how you reconcile some of your other writings with your judicial experience and tenure is the fact that, of

course, now you will not be a lower court judge subject to the appeals to the supreme court. you will be free as a united states supreme court justice to basically do what you want with no court reviewing of those decisions, hearkening back to the quote we started with during my opening statement about the supreme court being infallible only because it's final. so i want, just to start with the comments that you made about the wise latina speech that by my account you made at least five times between 1994 and 2003. you indicated that this was really -- and please correct me if i'm wrong. i'm trying to quote your words. "failed rhetorical flourish that fell flat." i believe another time you said they were, "words that don't

make sense." and another time i believe you said it was, "a bad idea." am i accurately characterizing your thoughts about the use of that phrase that has been talked about so much? >> yes, generally. but the point i was making was that justice o'connor's words, the ones that i was using as a platform to make my point about the value of experience generally in the legal system, was that her words literally and mine literally made no sense. at least not in the context of what judges do or -- what judges do. i didn't and i don't believe that justice o'connor intended to suggest that when two judges disagree, one of them has to be

unwise. if you read her literal words, that wise old men and wise old women would come to the same decisions in cases, that's what the words would mean. but that's clearly not what she meant. and if you listen to my words, it would have the same suggestion, that only latinos would come to wiser decisions. but that wouldn't make sense in the context of my speech either because i pointed out in the speech that eight, nine white men had decided brown v. board of education. and i noted in a separate paragraph of the speech that no one person speaks in the voice of any room. so my rhetorical flourish, just like hers, can't be read literally. it had a different meaning in the context of the entire speech. >> but judge, she said a wise man and a wise woman would reach

the same conclusion. you said that a wise latino woman would reach a better conclusion than a male counterpart. what i'm confused about, are you standing by that statement or are you saying that it was a bad idea and are you disavowing that statement? >> it is clear from the attention that my words have gotten and the manner in which it has been understood by some people that my words failed. they didn't work. the message that the entire speech attempted to deliver, however, remains the message that i think justice o'connor meant, the message that higher nominees including justice alito meant when he said that his italian ancestry -- he considers

when he's deciding discrimination cases. i don't think he meant -- i don't think justice o'connor meant that personal experiences compel results in any way. i think life experiences generally whether it's that i'm a latina or was a state prosecutor or have been a commercial litigator or been a trial judge, an appellate judge, that the mixture of all of those things, the amalgam of them helped me to listen and understand. but all of us understand because that's the kind of judges we have proven our self to be. we rely on the law to command the results unti in the -- to ce case so when one talks about life sterns experiences and even in the context of my speech, my message was different than i understand my words have been

understood by some. >> so do you stand by your words of yesterday when you said it was a failed rhetorical flourish that fell flat that they are words that don't make sense and that they're a bad idea? >> i stand by the words it fell flat. and i understand that some people have understood them in a way that i never intended, and i would hope that in the context of the speech that they would be understood. >> well, you spoke about the law students to whom these comments were frequently directed and your desire to inspire them. if, in fact, the message that they heard was that the quality of justice depends on the sex, race or ethnicity of the judge, is that an understanding that you would regret? >> i would regret that. because for me the work i do

with students is just not in the context of those six speeches. as you know, i give dozens more speeches to students all the time, and to lawyers of all backgrounds. and i give and have spoken to community groups of all type. and what i do in each of those situations is to encourage both students, and as i did when i spoke to new immigrants that i was admitting a student to try to encourage them to participate on all levels of our society. i tell people that that's one of the great things about america that we can do so many different things. participate so fully in all of the opportunities america presents. the message that i deliver repeatedly, the context of all of my speeches is i've made it, so can you.

work hard at it. pay attention to what you're doing and participating. >> let me ask about another speech you gave in 1996 that was published in the suffolk university law review where you wrote what appears to be an endorsement of the idea that judges should change the law. you wrote, "change, sometimes radical change can and does occur in a legal system that serves a society whose social policy itself changes." you noted with apparent approval that, "a given judge or judges may develop a novel approach to a specific set of facts or legal framework that pushes the law in a new direction." can you explain what you meant by those words? >> the title of that speech was "returning majesty to the law." as i hope i communicated in my opening remarks, i'm passionate about the practice of law and

judging, passionate in a sense of respecting the rule of law so much. the speech was given in the context of talking to young lawyers and saying don't participate in the cynicism that people express about our legal system. >> what kind of -- excuse me. i'm sorry. i didn't mean to interrupt you. >> i was encouraging them not to fall into the trap of calling decisions that the public disagrees with, as they sometimes do, activism or using other labels. but to try to be more engaged in explaining the law and the process of law to the public. and in the context of the words that you quoted to me, i point the out to them explicitly about evolving social changes that what i was referring to is congress is passing new laws all

the time. and so whatever was viewed as settled law previously will often get changed because congress has changed something. i also spoke about the fact that society evolves in terms of technology and other development. and so the law is being applied to a new set of facts. in terms of talking about different approaches in law, i was talking about the fact that there are some cases that are viewed as radical. and i think i mentioned just one case, brown v. board of education in explaining and encouraging them to explain that process, too. and there are new directions in the law in terms of the court. the court, the supreme court is often looking at its precedence and considering whether in certain circumstances.

but the court takes a new direction. and those new directions rarely if ever come at the initiation of the court. they come because lawyers are encouraging the court to look at a situation in a new way to consider it in a different way. what i was telling those young lawyers is, don't play into people's skepticism about the law. look to explain to them the process. i also, when i was talking about returning majesty to the law, i spoke to them about what judges can do. and i talked about in the second half of that speech that we had an obligation to ensure that we were monitoring the behavior of lawyers before us so that when questionable, ethical or other

conduct could bring disrefute to the legal system, that we monitor our lawyers because that would -- >> i think we're straying away from the question i had talking about oversight of lawyers. would you explain how when you say judges -- i'm sorry. let me just ask. do you believe that judges ever change the law? i take it from your statement that you do. >> they change -- can't change law. we're not lawmakers. but we claing our view -- change our view of how to interpret certain laws based on new facts, new developments by theory, considerations of what the reliance of society may be in an old rule. we think about whether a rule of law has proven workable.

we look at how often the court has affirmed a prior understanding of how to approach an issue. but in those senses there's changes by judges in the popular perception that we're changing the law. >> in another speech in 1996 you sell braited the uncertainty of the law. you wrote that the law is always, "in a necessary state of flux." you wrote that the law, judges declare, is not quoted a definitive capital l law that many would like to think exists, close quote. and, "that the public fails to appreciate the importance of indefiniteness in the law." can you explain those statements? and why do you think indefiniteness is so important to the law? >> it's not that it's important to the law as much as it is that

it's what legal cases are about. people bring cases to courts because they believe that precedence don't clearly answer the fact situation that they're presenting in their individual case. that creates uncertainty. that's why people bring cases. and they say, look, the law says this but i'm entitled to that. i have this set of facts that entitle me to relief under the law. the entire process of law -- if law was always clear, we wouldn't have judges. it's because there is indefiniteness not in what the law is but its applications to new facts that people sometimes feel it's unpredictable. that speech, as others i've given, isn't an attempt to encourage judges to explain to the public more of the

process -- is an attempt to encourage judges to explain to the public more of the process. the role of the judges is to ensure that they are applying the law to those new facts, that they're interpreting that law with congress' intent, being informed by what precedence say about the law and congress's intent, and applying it to the new facts. but that's what the role of the courts is. and obviously the public is going to become impatient with that if they don't understand that process. and i'm encouraging lawyers to do more work in explaining the system in explaining what we are doing as courts. >> and in 2001, in a speech at berkeley, you wrote, "whether born from experience or inherent physiological or cultural differences, a possibility i ab

less or discount less in my colleague judge seeder bomb, it will make a difference in our judging." a difference is physiological if it relates to the mechanic, physical or biochemical functions of the body, as i understand the word. what do you mean by that? >> i was talking just about that. there are in the law -- there have been upheld in certain situations that certain job positions have a requirement for certain amounts of strength or other characteristics that maybe a person who fits that characteristic can have that job. but there are difference that may affect a particular type of work. we do that all the time. >> you're talking about judging. >> you need a pilot who has good eyesight. >> we're not talking about pilots. we're talking about judging. right? >> no, no no.

what i was talking about there because the context of that was talking about the difference in the process of judging. and the process of judging for me is what life experiences brings to the process. it helps you listen and understand it doesn't change what the law is or what the law commands. a life experience as a prosecutor may help me listen and understand an argument in a criminal case it may have no relevancy to what happens in an antitrust suit. it's just a question of the process of judging. it improves both the public's confidence that there are judges from a variety of different backgrounds on the bench because they feel that all issues will be more better, at least addressed. not that it's better addressed but that it helps that process

of feeling confident that all arguments are going to be listened to and understood. >> so you stand by the comment or the statement that inherent physiological differences will make a difference in judging? >> i'm not sure of that. i'm not sure exactly where that would play out. but i was asking a hypothetical question in that paragraph. i was saying, look, we just don't know. if you read the entire part of that speech, what i was saying is, let's ask the question. that's what all of these studies are doing. ask the question if there's a difference. ignoring things and saying, you know, it doesn't happen isn't an answer to a situation, it's considerate. considerate is a possibility. and think about it. but i certainly wasn't intending to suggest that there would be a difference that effected the outcome. i talked about there being a

possibility that it could affect the process. >> as you can tell, i'm struggling a little bit to understand how your statement about physiological differences could affect the outcome or affect judging and your stated commitment to fidelity to the law as being your sole standard. and how any litigant can know where that will end. let me ask you on another topic. there was a story on may 29, 2009 where it starts out saying the white house scrambled to -- about judge sotomayor's scant record on abortion rights. and the white house -- it goes on to say the white house secretary said the president did not ask sotomayor specifically

about abortion rights during their interview. is that correct? >> yes. it is absolutely correct. i was asked no questions by anyone, including the president about my views on any specific legal issue. >> do you know then on what basis, if that's the case? and i accept your statement. on what basis the white house officials would subsequently send a message that abortion rights groups do not need to worry about how you might rule in a challenge to roe v.wade? >> no, sir. because you just have to look at my record to know that in the cases that i addressed on all issues i followed the law. >> on what basis would george pavia, who was apparently a senior partner n a law firm that hired you as a corporate litigator, on what basis would he say that he thinks support of abortion rights would be in line

with your generally liberal instincts? he's quoted in his article saying, "i can guarantee she'll be for abortion rights." on what basis would he say that? >> i have no idea since i never spoke to-to-him about -- to him about my views on abortion, frankly on any social issue. george was the head partner of my firm. but our contact was not on a daily basis. i have no idea why he's drawing that conclusion. because if he looked at my record, i have rule add cording to the law in all cases addressed to the issue of a termination of abortion rights, of women's rights to terminate their pregnancy. and i voted in cases in which i upheld the application of the mexico city policy which was a

policy in which the government was not funding certaiùqñ abortion-related activities. >> do you agree with his statement that you have generally liberal instincts? >> if he was talking about the fact that i served on a particular board that promoted equal opportunity for people, puerto rican legal defense and education fund, then you could talk about that being a liberal instinct in the sense that i promote equal opportunity in america. but he has not read my jurisprudence for 17 years, i can assure you. he's a corporate litigator. and my experience with corporate litigators is they only look at the law when it affects the case before them. [laughing] >> well, i hope, as you suggested, not only liberals

endorse the idea of equal opportunity in this country, that's a, i think, a bedrock doctrine. but that brings me, in the short time i have left to the new haven firefighter case. as you know, there are a number of the new haven firefighters who are here today and will testify tomorrow. and i have to tell you, your honor, as a former judge myself, i was shocked to see that the sort of treatment that the three-judge panel you served on gave to the claims of these firefighters by an unpublished summary order which has been pointed out in the press would not likely be reviewed or even caught by other judges on the second circuit except for the fact that the judge reads about a comment made by the lawyer representing the firefighters in

the press that the court gave short shrift to the claims of the firefighters. the judge said the core issue presented by this case, the scope of a municipal employers' authority to disregard examination results based solely on the successful applicant is not addressed by any precedent of the supreme court or our circuit. and looking at the unpublished summary order, this three-judge panel of the second circuit doesn't cite any legal authority whatsoever to support its conclusion. can you explain to me why would you deal with it in a way that appears to be so, well, dismissive may be too strong a word, but to avoid the very important claims that the supreme court ultimately reversed you on that were raised by the firefighters' appeal?

>> senator, i can't speak to what brought this case to the judge's attention. can i say the following, however. when parties are dissatisfied with a panel decision, they can file a petition for rehearing and bond. and in fact, that's what happened in the ricci case. those briefs are routinely reviewed by judges. and so publishing by summary order or addressing an issue by summary order doesn't tie the party's claims from other judges. they get the petitions to rehearing. similarly, parties when they're dissatisfied with what a circuit has done file peatsz fo petitioe

request for the supreme court to review the case. so the court looks at that as well. so regardless of how a circuit decided a case, it's not a question of hiding it from others. with respect to the broader question that you're raising which is, why do do you it by summary -- why do you do it by summary order, or in a published opinion? the question or the practice is that about 75% of circuit court decisions are decided by summary order. in part because we can't handle the volume of our work if we were writing long decisions in every case, but more importantly because not every case requires a long opinion if a district court opinion has been clear and thorough on an issue.

and in this case there was a 78-page decision by the district court. it adequately explains the questions that the supreme court adistressed and re-- addressed and reviewed so to the extent that a particular panel considers that an issue has been decided by existing precedent, that's a question that the court above can obviously revisit as it did in ricci, where it looked at it and said, well, we understand what the circuit did, we understand what existing law is, but we should be looking atmosphere this question in a new way. that's the job of a supreme court. . should be looking at this in anyway. >> the district court admitted that they could work behind-the- scenes, there was potential for

sabotage. based on their claim of potential disparate impact liability, there is no recourse that the city was justified in disregarding the exams, denying these fire fighters, many of whom suffered hardship in order to study and prepare for these examinations, they were successful only to see that hard work and everett disregarded, not even acknowledged in the court's opinion. ultimately, as you know, the supreme court said that you cannot just claim potential disparate impact liability as a city and to deny someone a promotion based on the color of their skin, there must be a strong basis in evidence. but you do not look to see if there was a basis in evidence.

your unpublished summary order did not even discuss that. do you not think that these firefighters and other litigants deserve a more detailed analysis of their claims and explanation for why it was ultimately denied? >> as you know, the court's opinion, issued after discussions, recognized -- as i do, the hardship of the firefighters experience. it has not been made stayed saved by anyone. the issue for the court is a different one. the issue that was addressed was the one made by decision makers, not the people behind the scenes. what they were considering was the state of law at the time. in an attempt to comply with what they believed the law said

and what the panel recognized, they made a choice under that existing law. the supreme court, in its decision set a new standard by which an employer and lower court should review what they're doing to the substantial evidence test. that test was not discussed by the panel. it was in the arguments below, a decision by the court borrowing from other areas of the law, saying that they think that this would work better in this situation. >> my time is up. thank you. [captioning made possible by fox news channel] captioned by the national captioning institute --www.ncicap.org-- >> we will put a note in the record, a letter of support for the judge's nomination to the hispanic chamber of commerce on behalf of 3 million hispanic

owned business members, 60 organizations, including the help pass the chamber of commerce. and and a similar letter from the arizona chamber of commerce. we will put them in the record now. >> mr. chairman, i have a letter for the record from the national rifle association in which they expressed serious concern over the nomination of judge sonia sotomayor. the head of that organization wrote an article this morning, raising increase concern after yesterday's testimony. i would also offer for the record a letter from the ethics

and religious liberty commission, who also raises concerns. >> without objection, those will be made prior to the record. we yield to the senator. >> thank you both. welcome back to our committee. i want you to know that the baseball fans of baltimore knew that there was a judge some more of that changed in a favorable way the reputation of baltimore forever. you are a hero to the baltimore baseball fans. let me explain. you allowed this season to continue so that cal ripken and could become the iron man of baseball in 1995. we just want to invite you, as a baseball fan, to an oriole game. we promised that it will not be when the yankees are playing. >> a great invitation. good morning, senator. you can assure your fans that i have been to camden yards.

>> the beginning of a new trend in baseball stadiums, you are certainly welcome. before this hearing the people of this country knew that the president had selected someone with incredible credentials to be the supreme court member. now they know that the person is able and capable, understanding of the law, understanding the appropriate role of a judge in the lock, doing well in responding to the members of the senate, which bodes well for your interaction with attorneys and colleagues on the bench in having a thorough discussion of the very important issues that will affect the lives of all people in our nation. i first want to start with the judicial temperament and the reference to the almanac on the federal judiciary. i want to look at other

statements included in the almanac where they were commenting about you, saying you are good, bright, a good judge, very smart, frighteningly smart, intellectually tough, very intelligent, a good and common sense approach to the law, looking at practical issues, good, and exceptional judge overall, engage in oral arguments, well-prepared, participating actively in oral arguments, hard-working and well-prepared. one of the judges on your circuit, judge liner -- bret: while the senator continues his questioning, bringing up the temperament of judge sotomayor. we want to go back and bring in carl cameron, who is in the

hearing room. you -- you heard a mention of the case of the firefighters from connecticut. karl talked to the attorney representing the firefighters, some of whom are in the room. what is next? >> this firefighters discrimination case that has been so discussed in the context of the nomination, as we were told before the hearing began, one dozen or so firefighters came here today to be in the audience to hear the discussion of the case in which they were plaintiffs. we can show you, they walked through the capitol building, clearly coming as part of an organized public relations exercise, with an opportunity to talk to the attorney. let's listen to a brief bit of that discussion. >> the senate invited two of

our fire fighters to speak to the committee. it is considered an honor. the fellow plaintiffs want to be here for this historic moment. they realize that their case figures most prominently in this nominating history. they share something in common, something i think that they will remember for a long time. we are here to watch a process that will hopefully educate the american people on selections to the federal bench. >> what should americans think of the judge based on what transpired with the ricci case? >> if anything, new haven firefighters show what senators on both sides have said is true. a nomination to the highest court is going to have an impact on the lives of everyday americans. the reason why the senate invited these gentlemen, the

reason that they are here, more than anything else and they showed just how true that is. >> just over her shoulder on the right-hand side of your screen, frank ricci, one of two dozen witnesses who will testify. they are seated over my shoulder. they will have a chance to speak for themselves, the entire group of them, adding to the drama as we know the republicans continue to go back into the ricci case as to why they have questions on whether or not the nominee is a liberal activist, something that she has repeatedly said she will lead to -- imposing her own bias uncases. they are suggesting perhaps that is a consideration that would be valid. bret: carlrlthank you. megyn: back to our panel, steve

hayes, juan williams, and our own court -- chris wallace, host of "fox news sunday." the one that caught our attention as we were sitting here, he was asking her once again about the wise latina speech. she came out and said that i was the one in the speech that pointed out that it was nine white men who decided brown bears the board of education. in that -- groubrown versus board of education. she said the judge cedarbaum has pointed out to her that cases coming from judges of white males have been favorable for minorities. but she would argue that people

that have changed the landscape for civil rights were largely people of color and women. is that directly contrary to what she said to the senate? >> absolutely. maybe it was white men that decided the case, but it was people of gender and color that argued the case. it gets back to the issue of identity politics. i have to say that in that area, especially in the ricci case, i felt that senator corn andn had nin had a missed opportunity. we had a better job of explaining it. a case that most americans can understand and sympathize with, the ricci case. a bunch of white firefighters the did very well on the promotional exam, blacks did not do well, so the city threw out because they claim that they

would get a discrimination case. it seems to me that i would say, explain to these people why you ruled the way that you did in a summary order. i would have made it as personal as possible about these fire fighters. frank ricci suffers from dyslexia. he spent over $1,000 getting special tutoring so that he could pass the test. bret: we see him sit -- seated there. >> it seems to me that that was an area to press on. one thing to talk about identity politics, sympathy, empathy, putting a thumb on the scales of justice, but here is a case where you can say that all of these firefighters were affected by your decision and despite their hard work, because they did well in blacks did not, you threw the case out. i would spend my entire half hour on that case.

megyn: she said that the issue in ricci was what was in the mind of the decision makers. her defense and their defense was that they were worried about being sued. there was a threat from the african american firefighters that they would get sued. as we talked about yesterday, but justice alito pointed out, and what others pointed out, and what cornin tried to point out was that there was another major consideration in the lifeblood of this case. they did not throw this out because they were worried about getting sued, they threw out the results because of politics. there was a powerful man named reverend kimber who testified and threatens the board who was making this decision. he said "i look at this board tonight, three whites, one hispanic, no blacks. i would hope that you would not

put yourself in this position. a political ramification that might come back upon you as you sit on this board and the side these men's future. that is what the justice focused on, saying that this is why they should have gotten a trial. you would not have known any of that, listening to this testimony. >> what -- she did not get into it, but she said that the disparate impact from the results of the test, and she has made the point all along, that she goes by the book and by president, simply making the case -- a flaw that she did not write it out, but she was dismissive -- but she made the case to the city has the right to throw out a test that does not mean the end of achieving diversity. it was not fulfilling its function as an instrument to diversify what have historically been an all white, mostly

italian fire department, even as the sick -- city has become 60% minority. political pressure was on. the supreme court paid attention to the preacher in the political pressures. she did not. she said that she is just about a lot. the consequence is sitting right there in the room. it would have been more dramatic. >bret: summary judgment, just one paragraph, and it would have slipped through if another judge on the panel had not spotted it because he read it in the paper. >> i am surprised that we have not seen more about the process. there was a big story yesterday from stewart taylor that went into the process, suggesting that this did not happen in the right way. she touched on it briefly and

then skated by. megyn: she did try to explain that in the beginning. she said that oliver decisions are available to the second circuit, it is not like it was being kept secret. but the reason that this becomes relevant, the question is does this woman rule based on race and prejudice, or not? the democrats have said that she does not. look at her 17-year history, she does not favor one particular group over another. the ricci case is a potential problem, these justices are saying that you just sat here and told us that the issue is what the decision makers were considering. you have got a full record talking about how in front of the decision makers were all of these political pressures. this reverend and others basically saying that you do not promote the black firefighters and it will come back to haunt

you. >> are these republican senators dropping the ball in these questions? it seems to me that they are. she will probably get through it still, but as we would say on sunday, there is plenty of stuff that you could question about her philosophy and her actions. it seems with cornin, he was trying to get it in for the record rather than trying to change the minds of the people. ultimately, if you oppose the nomination you would like their to be more comments, like yesterday, where her constituents called up worried that she was an activist. it seems to me that this is the kind of real world decision and you might make. i think if he could have made that case much more powerfully than he did.

>> the reason that we are paying so much attention to ricci, the reason that the senators are, it is the link between her speeches in the record. republicans have spent a lot of time going over speeches, asking about them, talking about uncertainty in the law. this is a clear example in recent example of how things come together in a profound way. strange that republicans almost never do this well. going back to ronald reagan, who did do this well, but they do not use stories or anecdotes. they prefer to make legal, abstract arguments, rather than being more dramatic. explain this to these guys. you gave them a paragraph? tell them now. megyn: yesterday we saw an effective rehabilitation from chuck schumer and other

democrats, notwithstanding ricci, he went through the hard core numbers. she rules with the majority, with republican colleagues, she is not some out liar, she does not always find for the plaintiffs in discrimination. we will probably hear more that once these democratic senators get their shot. we only have one more republican and all the rest on democrats because the senate judiciary committee is lopsided because the democrats control the senate. we are going to hear a bit more from them momentarily. back, moments away, with our panel and more cross- examination. ññ (announcer) some people don't just work.

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bret: looking lie capitol hill, we are covering the sotomayor hearings -- looking live at capitol hill, we are covering the sotomayor hearings. there is much more going on here in washington. 13-10, there was a vote to pass ted kennedy cause health care reform bill, which includes a

federal public auction for health care reform, covering all americans, they say, providing aid to individuals making less than four times the poverty level. lots of specifics in this plan, also controversial, as many senators are having a problem with the public action, and the house is putting forward a bill because -- that is controversial, it charges a surtax. that is the big question, how will democrats in congress pay for this? passing the committee 13-10 along party lines this morning. megyn: college but everyone, it is a big income tax on the so- called rich, getting a lot of press. we will take you back to live coverage of the confirmation hearings. i believe that we are still listening to the democrat.

>> individual choice as a student, that was upheld. justice o'connor, in her opinion, often expressed the hope that in 25 years race would not even need to be considered. in a separate case, the university of michigan's undergraduate admissions policy, the court struck that down because they viewed the use of race as a form of impermissible " of, not based on an individual assessment of the people applying, but as an impermissible violation of the equal protection portion of the law. these situations are always looked at individually. as i said, in the context of the choices that congress and the

executive branch and employers are making, in the interest that it is assertive, the remedy that it is creating to address the interest each time for protection, all of that is an individual question for the court. >> well, you need to look at all the facts in reaching those decisions, which have stressed over and over again. i want a justice that will fight for people like lawrence king, who led the age of 15 were shot in school because he was openly gay. i want a justice who will fight for women that are attacked because they're lesbians. men like james berg, beaten and drag because he is black, i want a judge that will fight for them. we need to continue that focus. you talked about the race, and i think about the case that you

ruled in, the 6-year-old black child that was removed from school and was treated rather harshly with racial harassment. in your descent, you said that treating this lone black child was not merely arguable, unusual, disputable, but also contrary to the schools established policy. justice blackmun spoke in a way that to get beyond race they must take it on the account of race. are you not ignoring the facts that are important? >> it depends on the context of the case you are looking at. in the gance case, for example, there were a variety of challenges brought based on the alleged conduct the the school

engaged in. dismissing in some of the claims, not consistent with of the law, there was a disc and treatment element, presenting evidence of such. that is the quote that you are reading from. this one child was treated completely different from other children of a different race in the services that he was provided with, and in the opportunities he was given to remedy or receive remedial help. that is obviously different, because what you are looking at is the law as it exists, and the promise that the law makes to every citizen for equal treatment in that situation.

>> i agreed. you need to take a look at all the facts in the circumstances. in ignoring race, you ignore an important point of the facts. talking about privacy, the justice describes it as the right to be left alone, that this right must be minimal and protection must secure before such actions occurred. the supreme court has advanced the rights of privacy in niemeyer's case, establishing the fundamental rights to marry whoever they please regardless of race, and griswald, which allows for family planning. of course, roe v. wade, which gave women the right to control their own bodies. your assessment on these privacy cases in the 21st century, recognizing that the constitution was written in the

18th-century, and that the challenges today are much more difficult as it relates to privacy. technology is different today, circumstances are different today. how do you seek privacy challenges as being confronted in the 21st century in the courts and the constitution? >> the right to privacy has been recognized, as you know, in a wide variety of circumstances. for more than probably 90 years now, close to 100, that is the part of the court's precedents in applying the immutable principles of the constitution. the liberty provision of the laws in recognizing that they provide a right to privacy and a variety of different settings. you mentioned that lineup of

cases, there were many others in which the court recognized that as a right. in terms of the coming century, guided by those cases, those cases provided the court's precedents and framework, as well as with other cases, to look at how we will consider a new challenge to a new law or situation. that is what a president does. it provides a framework. but constitution remains the same, the society changes. but the principles, the words of the constitution, guided by how president -- precedent has applied the principles to the situation, take that and you will get a new situation. >> in my remaining time, i would

like to talk about pro bono. i enjoyed our conversation about pro bono in my office. we all have responsibilities for equal justice and equal access, it is not just those that can afford a lawyer. legal aid lawyers, 61 for every 6800 in private attorneys, this is not equal justice under the law as promised by the etching of the entrance to the united states supreme court. it makes a difference if you have a lawyer. you will be much more likely to save your home to get health care that you need to deal with consumer problems. i had the honor of being the chair of the maryland legal service corp., and i am proud of the fact that you helped to establish the university of maryland law school, requiring clinical experiences for law students so that they not only

did the experience of handling the case but also understanding the need to deal with people who cannot afford an attorney. congress needs to do more of the same. i would like to get your view on the individual responsibility of a lawyer or equal justice under law, including pro bono, and how you see the role of the courts in helping to establish the efforts amongst the legal community in carrying out our responsibility. bret: senator cardin continues his questioning, and we have other breaking news from capitol hill. the senate health committee has voted along party lines to pass a health care reform bill. you are looking live now at the senate, we're waiting in their press conference briefing room for gop senators to come out and

talk about this. the vote was 13-10 in this key. this is senator ted kennedy's bill, including a federal auction. it also includes, we want is listed, senator enze coming to the podium. this bill includes a federal, public auction in this particular version. as you know, there are many different proposals on capitol hill. this one has passed along party lines and we want republican reaction. there you can see senator john mccain entering. >> the bill on health care just passed out of the health care committee on party lines. there is a good reason for that. the president had set some goals, saying that everyone should be covered and that if you like what you have, you can keep it, that we needed to drive down the cost of health care and that it should be paid for.

that bill gets an f. it does not cover any of those things. it is a tragedy, because health care affects one sixth of the american economy. it affects every single american. it affects every single business. it affects every single provider. this is the most comprehensive thing that we have ever addressed in the united states senate. we have never had anything that affects everybody like this. it is important that we get it right. that bill got it wrong. we went through a long process of amendments to get it right. we had to move two amendments because the democrats drafted the bill. i remember the election, they said that they won the election so they get to draft the bills. but that is not bipartisan. the only way that we had input was to do amendments. we did a bunch to point out the flaws. i hope that people will take a look at that this morning.

because this bill will not meet any of the presidential goals. we have had speed in the drafting process. we allowed the bill to come to committee with only half of it drafted. later we got the other half, which did not come because it drove up costs even more. we are talking about a $1 trillion problem that this bill will cause. it will cover less people. it is a travesty for small business. i have other people here that will cover a number of these issues. this bill fails in what it was setting out to do. i hope that there is a chance to correct it for the sake of americans. they need insurance, they need to be covered under a pre- existing commission -- conditions. we have five republican bills that answered the things that the president said, all of the goals that we set out. we had to do those three amendments and they were virtually turned down.

the impression that we got was that david was suggested by a republican, it has to be bad. that is bad for america. senator gregg has some comments. >> thank you for your leadership in these last few weeks. just so you know, that was senator mike on health -- like mike enzi. we are now listening to senator gregg and his remarks on the bill that just as committee along party lines. >> second, that this should be banned, that we should get under control the cost of health care because it will bankrupt the country, this bill does not do that either. it adds $1 trillion to the debt of the united states. thirdly, he said that nobody should lose health care if they want to keep insurance. this bill does not reach that

issue either. in fact, people are going to lose insurance over this, losing their job according to the study of small business, they will be mass of the impacted by this. there are ways that we can accomplish what the president wants to do. i have proposals, proposals where we can cover all americans, where we can bend the obvious cost, making sure that americans like health insurance can keep it. it is regrettable that we were not allowed to stay at the table when the bill was drafted so that our ideas could get in. regrettable that when we offered amendments, in many instances addressing the issues that the president had primary concerns with, because they came from our side of the aisle. >> senator byrd? >> thank you, mike. the president stated clearly at the start of the process that

health care was unsustainable on its current path. today, at 17% -- bret: as republican senators react to this health reform being passed out of committee along party lines, we would like to get some thoughts from our panel. chris, this is a big deal. this bill getting out of committee, obviously there are a lot of questions about health care reform and how it moves on capitol hill. >> absolutely. it is interesting, the president coming back from europe was concerned that they were losing altitude on health care. he met with the democratic leaders earlier this week. he saw the house to introduce its plan yesterday. now you see one senate committee introducing its plan. there has been a delay of another week in terms of the senate finance, they are trying to show some action, saying that it is not banned or on life-

support, but that it is full speed ahead. having said that, there is a lot of controversy. clearly the plan passed by the senate health committee is not answering the questions of republicans, or the moderate senate democrats. it is very much a big government, big tax and spend public health plan bill. there is no compromise in this particular iteration of what they're talking about. bret: do they have the votes to get this through? these different versions? >> they do not because they have no plan for financing in the senate. the key, max baucus, along with harry reid, was asked at the white house on monday, the tire idea is gentlemen, get on the train, it is leaving the station -- leaving the station. president obama said that we do not want something that is an

argument or financing, put something in congress, concerning democrats in the house, as were those were about cost. >> one of the questions all on -- all along was whether they would try to do this in a bipartisan way or try to ram it through with democrats. seems they have decided to move away from a broader, bipartisan approach, trying to pick of them -- democrats with piecemeal compromises. megyn: in the meantime, the final republican on this committee, tom coburn, who also happens to be an obgyn, he is doing his cross-examination right now of sonia sotomayor, focusing as you could expect on the issue of abortion.

>> it is not a question that the court reaches out to answer. that is a question created by a state regulation of some sort, or an action by the state that may or may not, according to clemens, place an undue burden on her. we look at the case before us with the interests argued by the parties, trying to apply principles to the arguments parties raise. >> i am reminded of one of your quotes that said that you do make policy, and i will not continue with that. i am concerned, as are many others, does the state legislature have the right, under the constitution, to determine what is death?

in 50 states we have statutory define what the definition of death is. the thing that that is within the realm of the constitution, that states can do that? >> depends on what they are applying the definition to. there are situations in which they might, situations where that definition would or would not have connection to the dispute before the court. all state action is look at within the context of what the state is attempting to do and what liabilities they are imposing. >> you would not deny the fact that the states have the right to set up statutes to give guidance to citizens of what constitutes death? >> it depends on the context the they are attempting to do that in. >> they are doing it so that they limit the liability of others with regards to that

decision, which would inherently be their right of that constitution, as i read it. you may have a different response. this spring me back to technology again. as recently as six months ago, we record fetal heartbeat 14 days after conception. we record fetal brain waves at 39 days after conception. i do not expect you to answer this, but i expect you to pay attention as you contemplate these issues. we have this schizophrenic rule of law where we have defined death as the absence of those, yet we refuse to define life as the presence of those. all of us are dependent, at different levels, other people during all stages of development very early in the womb. it concerns me that we are so inaccurate -- not a proper term -- inconsistent in terms of our

application of logic. you said roe v. wade said a lot. it settled the right to privacy issue, i believe. the question that i would like to turn to, in your second circuit ruling on -- trying to remember the name of the case -- maloney, the position was that there was not an individual, fundamental right to bear arms in this country. is that a correct understanding? >> no, sir. >> please educate me, if you would. >> in the supreme court's decision, they recognized and individual right to bear arms -- an individual right to bear arms

as something guaranteed by the second amendment, an important right, one that limited the actions that the federal government could take with respect to the possession of firearms. in that case, we are talking about handguns. the maloney case presented a different question, which was whether the individual right would limit the activities that could be done to regulate the possession of firearms. that question is addressed by a legal doctrine. that legal doctrine uses the word fundamental, but it does not have the same meaning that common people understand that word to mean. for most people, the word by the dictionary term is critically

important. central. fundamentalist. sort of rock basis. those meanings are not how the law uses that term when it comes to what the states can do or not do. the term has a very specific legal meaning, meaning that is that amendment of the constitution inc. against the states? >> the 14th amendment? >> and others. the question becomes how that protection applies are limits the states to act. the issue for us was a narrow one. we recognize that heller held a

central president as an individual right to bear arms, as it applies to government regulation. the question in maloney was different. was the right inc. against the states? we determined that given the supreme court precedent, which had addressed that precise question, saying that it is not, was it fundamental in the legal doctrine sense? that was the court's holding. >> did the supreme court say it was definitely not in heller? >> they failed to rule on it. >> there is a very big difference there. >> i agree. >> what you said was that you did not have a fundamental, inc. right to bear arms. as you see the lot the day, is

that how you see it? >> it is not. >> in your opinion of what the law is today, is my opinion a correct statement? >> not my interpretation. i was applying supreme court precedents and second circuit precedent, which directly answer the question, saying that it is not incorporated. the issue of whether or not it should be is a different question. that is the question that the supreme court may pick out. in his opinion, justice scalia suggested that it should. but it is not what i believe, it is what the law has said about it. >> what does the law say about this statement? where do we stand about my

statement that i claim to have a fundamental guarantee, spelled out right under the constitution, of lying to me the right to own and bear arms. am i right or wrong? >> i cannot answer the question of incorporation other than to refer to precedent. president says, as the second circuit interpreted the precedent, that it is not incorporated. it is also important to understand that the individual issue of a person bearing arms is raised before the court in a particular setting. by that, i mean what the court will look at as a state regulation of your rights, determining if the state can do that or not. even once you recognize a right, you are always considering what the state is doing to limit or

expand that right, then deciding if that is okay, constitutionally. >> very interesting to me, i went back and read the history of debate on the amendment. for many of you that do not know, what generated much of the amendment was the reconstruction of southern states, the right to bear arms was taken away by recently freed slaves. much of the discussion in congress was to restore that right of the second amendment through the 14th amendment, to restore an individual right that was guaranteed under the constitution. one of the purposes it came about was because those rights were being abridged post so war. in the constitution we have the right to bear arms, whether incorporated or not. i am having trouble

understanding how we got to this right for privacy that is not explicitly spelled out, which has said a law that is fixed. something like the second amendment, which is spelled out in the second amendment, not setting a lot and is now suddenly fixed. i would like to hear you say how we got there, getting to the point where something spelled out in our constitution, not guaranteed, something that is is not. would you give me your philosophical answer? i do not want to tie you down in future decisions, but how do we get there when we read this book that says certain things that are not guaranteed, but the things that it does not say are? >> one of the frustrations with judges and their decisions by citizens is that, and this was

an earlier response, we do is different from what the public wants the laws to do. judges do not make laws. we get a particular set of facts available to us. we look at what those facts are, what in the case of different constitutional amendments they are, what states are deciding to do and not do, then looking at the constitution, seeing what it says, attempting to take its words and principles described, applying them to the facts before you. in discussing the second amendment as it applies to a

government, justice scalia noted that there had been many regulations related to the possession of guns. he was not suggesting weapon all regulation was unconstitutional, he was hoping in that case that he sees particular regulation as illegal. many states with felons represented, they have guns, as does the federal government. it is not as though we make a broad policy choice, saying that this is what we want. what we look at is what others in the system are doing. what their interest in doing it is, and how that fits into whenever a situation they think

they have to fix it is. what i congress or state legislature has to fix. that is the court's function. i cannot explain it philosophically. i can only explain it by its setting and what the function of judging is about. >> thank you. let me follow up with one other question. as a citizen of this country, the believe that i have the innate right to personal self- defense? >> i am trying to think there's a constitutional right to self- defense, and i cannot think of one.

most criminal law statutes are passed by states. i am also trying to think if there is any federal law that will include self defense provision. what i was attempting to explain is the issue of self defense usually defined in criminal statutes by the state laws. i would think, although i have not studied all of the state's laws -- >> can you give me an opinion on whether or not in this country i, personally, have an individual right. >> i do not know if that legal question has ever been presented. >> not asking about the legal question, i am asking about your personal opinion.

>> that is sort of abstract question with no particular meaning to me outside -- >> that is what the american people want to hear, your honor. that is what they want to know. do they have a right to self- defense? does the second amendment mean anything under the 14th amendment? they take the constitution to mean what they think is important. is it ok to defend yourself in your home if you are under attack? the general theory is do i have that right? in the stand if you do not want to answer that because it might influence your position, which is a fine answer with me. those are the kinds of things that people would like for us to answer and no. not how he would rule or what you are going to rule, but yes or no. do we have that right? >> i know that it is difficult to deal with someone like a

judge, who is thinking in a way that is ordered by the law. >> like a doctor. i cannot quit using dr. terms. >> that is exactly right to. let me try to address what you are saying in the context that i can, which is what i have experience with, new york criminal law. talking in very broad terms, but under new york law, if you are being threatened with an death or serious injury -- with eminent death or serious injury, the full force. that would be legal. the question that comes up and does come up before juries and judges is how eminent is the threat. if the threat was in this room, i am going to