it's time now for what we learned. willie, i usually let the guys take control. >> i learned one thing.

the great writer can make facebook sexy. >> what he said probably should not have been said on television. >> well, that you guys are relatively harmless. you guys are great. >> i have always been bothered by something. my best friend went to the prom with the guy i was in love with, and the next day, her face was all red. i don't know, could you put your arm around me? i am getting you back. i am so getting you back. she had a crush on him. >> i learned two things, matt dillon hates the earpiece. and if i walk around, and i call willie's baby "w," i will get in big trouble. >> and say your plug.

>> refugeesinternational.org. can you go there and learn more. >> and what time is it if it's too early? >> it's time for morning joe. day two of confirmation hearings. take a listen. >> in the past month, many senators have asked me about my judicial philosophy. simple. the task of a judge is not to make law, it is to apply the law. >> indeed, day two of sotomayor's confirmation hearings under way. we will hear about the gang in washington in just a second. i am dylan ratigan, and it's nice to see you. this is a special meeting of "morning meeting."

and it's condensed. we will get to the confirmation hearings which will begin in about half an hour. and they say unless she makes a serious mistake, she is a shoo- shoo-in. goldman sachs reporting more than $3.4 billion in earnings for the second quarter. and that's 3$3.4 billion in earnings in the past three months time. it helps if you are getting 100 cents out of the tax dollar. and they are getting 100 cents on the dollar from the aig payments at the taxpayers are funding. let's begin first with the confirmation hearings. let's start off with chuck todd. are you around?

what happened yesterday? put today in context. >> reporter: i think this is what we learned. senate republicans realize there is a bigger price to pay in being for sotomayor than against her? what am i talking about? in the same way, democrats had to look at their own base and satisfy their base constituencies when it comes to john roberts and sam alito, you are seeing the same thing with the republicans. i was at first a bit surprised at how aggressive some of the statements were from the republicans, but if you look at it politically, if theyent up being for her there is a bigger price to pay with the conservatives than what they would get being for her. and how aggressive with the senate republican leader, jeff sessions, on the judiciary committee get with her. if it gets too confrontational will it be a problem? and so and so even voted against

justice sotomayor will be a way to split republicans from hispanics. we will see the tone of today's questioning will let us know how politically nervous they are when it comes to going after her with hispanics. >> pete, what is the process today? >> they will ask questions, and she will answer yesterday was all statements. and i think we will hear two cat gories. comments made in speeches. and this is what the republicans said they did not like about her. the comment about the appeals court is where you make policy. and the second line of questions will be about her decisions. cases that are controversial. and some for are probably the most controversial. and this is reverse

discrimination case there. and property rights and environmental cases. those are the two lines of questions that we will hear. and based on the opening of her program, her testimony does sound better with the guitar rif behind it. >> that does not cost us that much. feel free to use that, not only today but tomorrow as well. i think we can do both days. norah o'donnell, are you there? >> yes, but i don't have a guitar rif behind me yet. can we cue it up? >> you are your own guitar rif by your own presence. what is going on with the gop, particularly those that are playing for the chuck -- there is the guitar. thank you. and those playing the chuck todd aspect, which is they don't want to have the, comma, and you even voted against, in there own bio. >> yeah, they have a balance today. they have to please their republican and conservative base x they have to set the standard for future nominees, and at the

same time, they can't risk alienating the fastest growing minority group in this country, and that's hispanics, or risk offending a majority of the voters in this country, women, because remember, she is a hispanic woman. and i think she will watch very interesting things. and sessions who is the ranking republican, and how tough will he be with judge sotomayor. he was tough yesterday. he said the fact that she believed her personal belief and back grounds on making decisions, he called that out ra rage -- outrageous and shocking. and the other thing, dylan, i think the stage here is interesting. something that i noted yesterday, there are no republican women on the senate judiciary committee, and was also pointed out today, the only two women on the democratic

side, and everybody else was a white male on the committee. that's something people are taking into context today. >> timetable wise, we start at 9:30, and pete, it goes how far into the afternoon? >> i don't think that we know that yet. it's depending on her. she broke her ankle. it's in a cast. as the day goes by, it will get tougher for her even though it's elevated. i would think until 4:00 or 5:00, and then same thing tomorrow. and then the outside witnesses come in on thursday. >> and daphne, a legal correspondent for the washington independent. you captured an interesting dynamic in all of this, and setting aside a tick-tock today and tomorrow, and the ultimate goal of a color-blind society with the history of race relations in the united states is likely what will really be on trial. what do you mean when you wrote that this week about what is going on in washington, d.c.? >> there is clearly a big debate on the court right now on how to

look at race, and the recent richie case, the reverse discrimination case involving firefighters put that on display. you had the civil rights act which said you cannot discriminate, and then you have the idea that we have a color-blind society. and yet in order to not discriminate, the issue -- >> there is a rich irony there? >> right. and the idea of affirmative action, historically, has been to address discrimination. and the now the court is saying we have to pretend we never had discrimination, and blind justice. and that issue of blind justice came up a lot at the hearing. what will be on trial is you have judge sotomayor that comes and says i am a hispanic woman, and influenced by my background and -- >> my race? >> yeah, and the interesting thing is so is chief justice john roberts, for example, who is a white man from a privileged

background. and the kind of disingenuous as aspect of what is going on, this hispanic woman is influenced by her race and gender, and the white men in the court don't have a race or gender. >> yeah, i don't have a race or gender. >> yeah, that's the under tone. there is that going on. and it's a disingenuous aspect to the argument. >> yeah, and that gets under way at 9:30. and we have a couple other things we want to cover, and i want to go to the golden sacks making world. they have been such a beneficiariy of the taxpayer funds. friday on the show, aig was selling insurance and had no collateral to pay for the insurance, and we the taxpayer is paying it out, and there are few that collected more than golden sacks. 100 cents on the dollar paid to

goldman sachs. >> this shattered -- hello, dylan. a short time ago we heard from golden sacks, and it earned $3.44 billion in the second quarter. >> in the last three months? >> yeah, more than doubled from -- well, it's up 65% from a year ago. and now it stands here, revenue doubling to $6.8 billion. and it's not just aig. there was credit that eased up, and people who wanted to refinance their homes and once government money started to flow it eased up credit somewhat, and there was a backlog. aig dollars also come into play. here is my question, when you are looking at goldman sachs reporting outstanding earnings, how are they making so much money when other mega banks, and big industries are in trouble? >> that's a good question.

and the author of "bailout nation" is here to answer that question. nice to see you, barry. >> hello. >> how are they making so much money as the rest of the economy tries to find its way? >> everybody for gets, before aig collapsed, goldman squeezed $6 billion out of them, and you take that, and that $6 billion should have been part of the aig estate that the taxpayers ended up with. it's $19 billion. it's hard thought to have a good quarter when you were sitting on that. and to them, this past quarter was business as usual. trading was very, very advantageous. you see a 40% move and you had all the under writing in order for banks to comply with the

t.a.r.p. >> we heard so much about toxic assets and subprime loans? isn't that still a risk? >> yeah, and here is what happened. the risk was given to the taxpayer. in other words, when we bailed out the companies, in other words, the risk was created at golden sacks and aig and the mega banks. and the geithner treasury and hank paulson before, they said all the toxic assets that you were just referencing, now the risks will live with the taxpayer, which is others like myself get so upset. >> but still, goldman sachs is reporting a good earning? >> well, number two, goldman, of all of wall street cleared clear from the subprime mortgages and they were -- they were

participants. they are head and shoelders above the rest of the street, because they don't think week to week and month to month, they think in terms of decades, and that's their strange, when the rest of the wall street is thinking about how am i going to make the number and do well this quarter. >> now, as a washington beat reporter, and what they are thinking down there, and general motors becomes a bankrupt busy fektively, and we treat them as a bankrupt business. we say we will re-write all of your agreements, and people you owe money to are only going to get a percentage of what they are owed which is how a bankruptcy functions. and the investment banks do the same thing. they become bankrupt. and we the taxpayer give $180 billion to aig, and $200 billion to fannie and freddie. but the obama administration and

secretary of treasury geithner, refuse to bankrupt aig and force them to with draw all of their contract law the same way general motors were bankrupt and they were forced to re-write their contract law, and so now 10-year-old girls that were paralyzed from accidents no longer have anything to collect on, and my question is why does the secretary of the treasury and the president, as far as you can tell, daphne, refuse to treat the banks the same way they treated detroit? do you have a sense of what they are thinking? >> what they said is the whole economy would shatter if the banks were allowed to go bankrupt, and we can't do that. the really important point here is they still have not reformed the system that led to the banking crisis. and maybe goldman was better, but why did it need a government bailout? it was not that good, and taking huge risks it could not support?

>> this started under the bush administration, and hank paulson. >> he was the former ceo of golden sacks thgold en -- goldmen sachs -- can i draw a link? >> this is right in the middle of the crisis, the banks are still the most powerful lobby on capitol hill. quite frankly they own the place. if you want to know why banks are treated differently than gm and everybody else, head of the commodities future exchange, and go down the list of all the most powerful positions in banking and government, and it's all goldman sachs alums, because they own the place. >> and they speak to that. here is a quote from goldman on the role of their executives inside the government. remember, while gm is

bankrupted, and product liabilities are no longser being honored, they continue to funture outside of bankruptcy and as a result they are able to spread all the money we are talking about it. this is what they say. >> sure, is it. >> you know, the banking industry spends a ton of money. goldman sachs spent $43 million last year. they are the single biggest contributor on the street. and we have a government that has been bought and paid for by the banking industry. is it any surprise that the legislation is so friendly to them? >> i have to take a break. i am hopeful that we have a senator that will take up this

issue. he has said as much in the past, senator ted kaufman proclaims he would like to do something about a government bought and paid for by the banks. he joins us in our conversation in an abbreviated edition of the "morning meeting" right after this. capturing the beauty of nature. that's my vision. everyday transitions lenses are there to help care for my sight. announcer: transitions lenses adjust to changing light to reduce glare and help protect your eyes from uv damage, so you can see better today and tomorrow. live your vision. transitions. healthy sight in every light. vsp vision care shares transitions' commitment to healthy sight and guarantees member satisfaction with transitions lenses. to learn more, see a vsp doctor today.

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welcome back. unemployment, of course, at a long-time high. and joblessness continues to be created by the hundreds of thousands a month, and wall street bonuses have never been better, is that correct? >> when you are looking at

goldman sachs, and it's blockbuster bonuses. $18 billion paid out in compensation and benefits. $18 billion. if you decide that by the playees, it comes out to $600,000 per employee, and some will get less than that and some will get millions in bonuses, at a time in september when goldman sachs was getting a government happenedout. >> senator, you have been one of the few who has been vocal on this subject, enforcement on wall street, and i certainly for one are grateful for your efforts to do that, and we have a big problem on our hands where we treated general motors in a certain way, and bankrupted that company, and then sticking the taxpayer with that, and then we refuse to bankrupt either aig or any of the major banks, and as a

result are forced to pay out 100 cents on the dollar to golden sacks and other banks with taxpayer money. i don't understand why that is and why we don't have an investigation in the treasury department or the president as to why there are two rules on the road here? >> sometimes, and i totally agree with you, we have to get to what happened this last year, and the first bill i passed was to go in there and make sure that anything illegal, or anybody doing something illegal will be apperehended by the fbi. >> and senator, we have a specific problem right now. goldman sachs, and i hate to beat up on them uniquely, but they are emblematic of what

happened. we have taken billions of u.s. taxpayer money, and we were told if we did not do this the financial system would collapse. and now why is it that we didn't extract any terms from the banks when we did this? in other words, if you are going to give away a few hundred billion, as we are doing with gm. we told them we will help you out, but there is over. where on the wall street side of the ledger, we are saying keep doing what you are doing, and use taxpayer money now instead of your own money, because you don't have your own money any more, and instead of saying you are bankrupt too, and you ran a lousy business, and i want to know what you are doing. tim geithner is not doing that and i don't understand why he is not doing it and why congress is

not investigating why he is not doing it? >> i am as surprised as you are at goldman sachs, if you told me about this, i am not saying -- well, i am as surprised as you are. and we have to get to the bottom of how this happened. and the other thing, and i have to say this, back then, when lehman brothers and bear stearns went down, we were in danger. i believe this. i was not there. >> there is a big difference between the minimum amount of money necessary -- why is the taxpayer being extoertd. they said we need this money as

the absolute bare minimum. and my attitude is the voters need to throw this congress out if they don't deal with it, or the congress needs to deal with the president and the secretary of treasury to explain why there is one set of rules for gm and the automakers, and a different set of rules to banks. when retirees lost their retirement accounts, and students can't get student loans, and we cannot be bothered to bankrupt financial students and re-write contract law and watch taxpayer money flow from aig to goldman sachs? is there anything where i am missing something, senator? >> dylan, i agree with 65% of it. the one thing that i would say, and, again, i am not running for re-election, and i don't care about getting -- raising money or any kinds of those things,

but i have studied and at the time this thing was happening, it was a tough time. if you made a little bit of mistake, you just didn't do the right thing, and there is a certain amount of 20/20 hindsight in looking at this things, but you are right in terms of investigating this thing. i am totally with you going back and checking everything that happened. >> with all due respect, 20/20 being what it may be, every day is a new day. and there is no reason why we can't go to aig tomorrow and citigroup tomorrow and say, listen, we are going to bankrupt you. we did not bankrupt gm at first, and then we realized we need to bankrupt them or this will bankrupt the taxpayer. in order to prevent bankrupting citigroup and aig, we are bankrupting the american people, and it's not cool. >> two different things, how do we find out what happened and who is responsible to make sure

the taxpayer money is properly used. and then the second thing, we have to make sure this does not happen again. you hit the hail right on the head. too big to fail. we should not be in a position where we are sitting there saying the old story, you owe us so much money, we can't let it go. and that's what i tried to raise in my opening statement in my hearings for sotomayor to be judge. >> senator, you have to go. we are going to continue this conversation. this is a short meeting because of the hearings. you have to go. i know you are involved with the hearing. i will let you go. there is sonia sotomayor. and enjoy your day, and i look forward to finishing the conversation with you. >> we are watching senator layhe as well. and we are expecting to see republicans looking at the background of sonia sotomayor

and how that might influence her decision. and we heard from democrats yesterday that they expect to hear how she has ruled in the past. >> the one thing that senator kaufman brought up yesterday, the supreme court will face appeals to the financial regulations as well, and will the supreme court side with the more lenient aspects or not. chris matthews picked up in washington, d.c. for day two of the confirmation hearings of society crotomayonia sotomayor. >> now it's time for the main event. senators are about to get their first real crack at giving correct questions to the supreme court nominee, judge sonia sotomayor. >> good morning, i am chris matthews. welcome to msnbc's special live coverage for the confirmation hearings of judge sonia

sotomayor. she spoke for about eight minutes yesterday. and she had a message saying she is guided by fidelity to the law, and she was playing defense already. and republicans on the committee will put those words to the test. it's what expected to be very pointed questions about her past rulings and more importantly her past speeches. and democrats will be out there to point a portrait as clearly in the legal mainstream. joining me right now is nbc news justice correspondent, pete williams. thank you for joining us. we will get the expected today, a lot of argument about affirmative action, and what her position is redressing pass grieve yun grieveenses. i am sure she has an answer ready to go and is eager to

describe what she meant by that. >> thank you, pete. and here is a democrat, senator layhe of vermont. >> and between them, the ones that need to leave, we will, and then we will recess for those votes. i guess we are one minute early here. and the way the traffic was today, i think that some people are still having trouble getting in here. i talked with senator sessions about this -- excuse me. we are going to have 30-minute rounds. we will go back and fourth between sides and the senators will be recognized based on the seniority, if they are there,

and if not then we will go to the next person. with that, as i said yesterday, when we concluded, and now the american people finally, we appreciate your opening statement yesterday. you have had weeks of violence. and you follow the traditional way of nominees. i think that you have visited more senators than any nominee that i know of. and that is just for any position. and we get used to the traditional, the press is outside and the questions are asked and you give a nice wave and keep going. but finally you are able to speak. i think your statement yesterday went a long way to answer the

critics and nay sayers. and we are going to start with the questions here. i would hope that everybody will keep their questions pertaining to you, and to your background as a judge. and you are going to be the first supreme court nominee in more than 50 years who served as a federal trial court judge, and the first in 50 years to have served as both federal trial court and federal appellate court judge. let me ask you the obvious one. what are the qualities a judge should possess? what qualities should a judge have and how does the experience you have had, how does that shape your approach to being on the bench?

>> senator leahy, yesterday many of the senators emphasized that the values they thought were important for judging, and central to many of their comments was the fact that a judge had to come to the process understanding the importance and respect the constitution must receive in the judging process and in understanding that that respect is guided by and should be guided by a full appreciation of the limited jurisdiction of the court in our system of government, but understanding its importance as well. that is the central part of judging. what my experience is on the

trial court and the appellate court have reinforced for me is that the process of judging is a process of keeping an open mind. it's the process of not coming to a decision with a prejudgment ever of an out come, and that reaching a conclusion has to start with understanding what the parties are arguing, but examining in all situations carefully the facts as they prove them or not prove them, and the record as they created, and then making a decision that is limited to what the law says on the facts before the judge. >> let's go into some of the particulars on this. one of the things that i found

appealing in your records that you were a prosecutor, as many of us, both the rank and member have had privilege, and you worked in the frontlines of the district attorney's manhattan office. and robert morganthall said one of the most important cases you worked on was a man that terrorized people in harlem, and would swing on ropes into their apartments and rob them and steal and actually killed three people. your cocounsel described how you through yourself into every aspect of the investigation, the prosecution in the case. and you helped to secure a conviction. and you sentenced him to 62 years to life for the murders. and you were called a skilled

practitioner, but understood the root cause of the crime, and how to curve it. how did that -- did that experience shape your views in any way, both as a lawyer, and also as a judge? i mean, this was getting into about as nitty gritty as you could do the whole area of criminal law. >> i became a lawyer in the prosecutor's office. to this day i owe who i became as a lawyer and who i have become as a judge to mr. morganthal. he gave me a privilege and honor in working in the office that shaped my life. had i say i became a lawyer in his office, it's because in law

school, they teach on hypotheticals. they set forth facts for you, and give you teaching on how the facts are developed, but not a whole lot. and then they ask you to opine about legal theory, and then apply the facts before you. when you work in a prosecutor's office, you understand that the law is not legal theory, it's facts. it's what witnesses develop you position in the record. and then it's taking those facts and making arguments based on the law as it exists. that's what i took with me as a trial judge. it's what i take with me as an appellant judge. it's respect that each case gets decided case by case applying

the law as it exist to the facts before you. you ask me a second question about the tarzan murderer case. and that case brought to life for me in a way that perhaps no other case had fully done before, the tragic consequences of needless death. in that case, mr. maddux was dubbed the tarzan murderer by the press because he used accra bat quick faets. he used rope and would swing himself into the apartment and

on the other side shot a person he found. he did that repeatedly. and as a result, he destroyed families. i saw a family that had been intact with a mother living with three of her children, some grandchildren. they all worked at various jobs. some were going to school. they stood as they watched one of their -- the mother stood as she watched one of her children be struck by a bullet that mr. maddux fired him and killed him because the bullet struck the middle of his head. that family was destroyed. they scattered to the four winds, and only one brother remained in new york who could testify.

that case taught me that prosecutors, as all participants in the justice system must be sensitive to the price that crime imposes on our entire society. at the same time, as a prosecutor in that case, i had to consider how to insure that the presentation of that case would be fully understood by jurors. and to do that, it was important for us as prosecutors to be able to present those number of incidents that mr. maddux engaged in in one trial. so the full extent of his conduct could be determined by a jury. there had never been a case quite like that, where an individual that used different

acrobat acrobatic feats to gain access. and basically, i needed to show a pattern that established a person's identity, or assisted in establishing a person's identity, simplifying the argument, by the way, then you can try different cases together. and this was not a conspiracy under law, because mr. maddux acted alone. i had to find a different theory to bring all of his acts together. i presented that to the trial judge. it was a different application of the law. but what i did was draw on the principles of the theory, and arguing those principles, and the judge permitted that joint trial of all of mr. maddux's activity. in the end, carefully developing the facts in the case, making my

record -- our record, i should say, mr. moe's and my record complete, we convinced the judge that our theory was supported by law. and that harkens back to my earlier answer, which is that is what being a trial judge teaches you. >> and you see it from both ends, having obviously a novel theory, and a theory established in the law, and you also as a trial judge, you have seen theories brought in by prosecutors or defense, and you have to make your decisions based on those. the fairly easy answer to that is, you do, do you not? >> well, it's important to remember that as a judge, i don't make law. and so the task for me as a judge is not to accept or not

accept new theories, but it's to decide whether the law as it exists has principles that apply to new situations. >> well, obviously, the tarzan case is -- it was a unique case. and as i said, mr. morganthal singled that out as an example of what kind of lawyer you were, and i find it compelling your story about being in the apartment. i stood at homes at 3:00 in the morning, as they carry the body out because of a murder. i understand how you are feeling. but in applying the law, and applying the facts, you told me once that ultimately and completely, the law is what

controls. i was struck by that when you did. there has been a great deal of talk about the richie case. and you and two other judges were assigned on the appeal, the firefighters from new haven. the plaintiffs were challenging the city's decision to discard of the pencil and paper test of leadership abilities. and the legal issue that was presented in that case was not a new one. not in your circuit. and in fact, there was a unanimous decades old u.s. supreme court decision as well. in 1991, congress acted to reinforce it to understand the law. and every member of the committee still serving in the senate is supporting that statement that law. have you a binding precedent, and you and two other judges

came to a unanimous decision. and that was deferred to the district court's ruling saying the determination could not justify using the pencil and paper test under the civil rights laws, and you said it was settling judicial precedent. and a majority voted not to resays it the decision, and therefore they upheld your decision. so you had the supreme court precedent. you had your circuit precedent. and you were upheld within the circuit. subsequently, it went to the supreme court and five justices reversed the decision, and reversed their precedent, and many have said that they created a new interpretation of the law. ironically, if you had done something other than followed the precedent, some would be now

attacking you as being an activist, if you followed the precedent. now they attack you as being biassed and racists. it's a unique thing. you are dammed if you do and damned if you don't. how do you react to the firefighters case? >> you are correct, the panel made up of myself and two other judges in the second circuit decided that case on the basis of the very thorough 78-page decision by the district court and on the established precedent. the issue was not what we would do or not do, because we were followi following precedents.

the issue in richie is what the city did, or could do, when it was presented with a challenge to one of its test for promotion. this was not a quota case. this was not an affirmative action case. this was a challenge to a test. and everybody that agreed had a very wide difference between the past rate of a variety of different groups. and the city was faced with the possibility recognized in law that the employees who were desperately impacted -- that's the terminology used in the law. and that is a part of the self rights amendment that you were talking about in 1991. and those employees who could show a desperate impact, a

disproportionate pass rate, they could bring a suit, and that then the employer had to defend the test that it gave. the city here, after a number of days of hearings and variety of different witnesses, decided that it wouldn't certify the test, and it wouldn't certify it in an attempt to determine whether they could develop a test that was of equal value in measuring qualifications, but which didn't have a desperate impact. so the question before the panel was, was the decision of the city based on race or based on its understanding of what the law required it to do.

given second circuit precedent, bushy versus new york state civil services commission, the panel concluded that the city's decision in that particular situation was lawful under established law. and the supreme court in looking and reviewing that case applied a new standard. in fact, it announced that it was applying a standard from a different theory of law. and explaining to employers and the courts below how to look at this question in the future. >> but when you were deciding it, you had precedent from the supreme court and from your circuit. basically, it determined how -- it determined the out come that

you had to come up today, now supreme court has changed their decision, without you having to relitigate the case, it would lay open, obviously, a different result. >> clearly. >> the circuit would be found by the new decision, even though it's only a 5-4 decision, the circuit would be bound by the new decision of the supreme court, is that correct? >> absolutely, sir. >> thaumt. >> that is now the statement of the supreme court of how employers and the court should examine this issue. >> during the course of this nomination, there have been some unfortunate comments, including outrageous charges of racism made about you on radio and television. one person referred to it being the head of the ku klux klan. another leader in the other party referred to you as being a

bigot and to the credit of the senators, republican senators, as well as democratic senators, they have not repeated those charges. but you haven't been able to respond in any of these things. you've had to be quiet. your critics have taken a line out of unfortunate speeches and twisted it, in my view, to mean something you never intended. you said, quote, you would hope that wise latino woman with the richness of her experiences would reach wis decisions. i remember other justices, the most recent one, justice alito talking about the experience of his immigrants in his family and how that would influence his thinking and help him reach decisions. what -- and you also said in

your speech as, quote, that you love america and value its lessons that great things could be achieved if one works hard for it. and then you said judges must transcend their personal sympathies and prejudices and aspire to achieve a fairness of greater achievement based on law and one more quote in there is what you told me, ultimately and completely the law is what counts. or law is what controls. so, tell us. you've heard all of these charges and countercharges, wise latina, on and on. here is your chance. you tell us -- you tell us what is going on here, judge. >> thank you for giving me an opportunity to explain my remarks. no words i have ever spoken or written have received so much

intention. i gave a very -- my speech to a variety of different groups. most often, to groups of women lawyers or to groups, most particularly, of young latino lawyers and students. as my speech made clear in one of the quotes that you referenced, i was trying to inspire them to believe that their life experiences would enrich the legal system because different life experiences and backgrounds always do. i don't think that there is a quarrel with that in our society. i was also, in trying to inspire them, to believe that they could become anything they wanted to become, just as i had. the context of the words that i spoke have created a misunderstanding and i want -- a

misunderstanding and to give everyone assurances, 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. i do believe that every person has an equal opportunity to be a good and wise judge, regardless of their background or life experiences. what the words that i used, i used agreeing with the sentiment that justice sandra day o'connor was attempting to convey. i understood that sentiment to be what i just spoke about, which is that both men and women were equally capable of being wise and fair judges.

that has to be what she meant, because judges disagree about legal outcomes all of the time or i shouldn't say all of the time. at least in close cases, they do. justices on the supreme court come to different conclusions. it can't mean that one of them is unwise, despite the fact that some people think that. so her literal words couldn't have meant what they said. she had to have meant that she was talking about the equal value of the capacity to be fair and impartial. >> and isn't that what you've been on the bench for 17 years. have you set your goal to be fair and show integrity, based on the law? >> i believe my 17-year record

on two courts, which show that in every case that i render, i first decide what the law requires under the facts before me and that what i do is explained to litigants why the law requires a result and whether their position is sympathetic or not, i explain why the result is commanded by law. >> and doesn't your oath of office actually require you to do that? >> that is the fundamental job of a judge. >> good. let me talk to you about another decision that has been talked about. district of columbia versus hellor. in that one, the supreme court held that the second amendment guarantees to americans a right to kaep keep and bear arms and an individual right. i've owned firearms since my early teen years, i suspect a

large majority of vermonters do. i enjoy target shooting on a very regular basis at our home in vermont, so i watched that decision rather carefully. i found it interesting. is it safe to say that you accept the supreme court's decision as establishing that the second amendment right is an individual right, is that correct? >> yes, sir. >> thank you. and in the second circuit decision in maloney versus cuomo, you, in fact, recognize the supreme court deciding in hellor the right to bear arms is guaranteed by the second amendment of the constitution against federal law restriction. is that correct? >> it is. >> and you accepted and applied the hellor sdigs decision when you decided maloney? >> completely, sir. i accepted and supplied

established supreme court precedence that the supreme court in its own opinion in eellor answered a different question. >> well, let me refer to that. because justice scalia's opinion in the hellor case reserved as a separate question whether the second amendment guarantee applies to the states and laws adopted by the states. earlier this year, you were on a second circuit panel in a case posing that specific question and new york state law, restriction on so-called stuka sticks, martial arts device. now, the unanimous decision of your supreme court precedent is binding on your decision. and that supreme court have held that the second amendment

applies only to the federal government and not to the states. i notice that the panel of the seventh circuit, including people like judge posener, a best-known conservative judge decided a same supreme court authority and agreed with the second circuit decision. we all know that not every constitutional right has been applied to the states by the supreme court. i know of one of my very first cases as a prosecutor was a question whether the fifth amendment guaranteed a grand jury indictment has been made applicable to the states, the supreme court has not held that applicable to the states. seventh amendment right to a jury trial. eighth amendment, prohibition against excessive finds have not been made applicable to the states. i understand that seeking supreme court revisit the question apply to the second amendment to the states are

pending. so i'm not going to ask you about that case appeared before the supreme court and you're there and how you're prepared to rule. but would you have an open mind on the supreme court in evaluating the legal proposition of whether second amendment right should be considered fundamental rights and applicable to the states? like you, i understand that how important the right to bear arms is to many, many americans. in fact, one of my god children is a member of the nra and i have friends who hunt. i understand the individual right fully that the supreme court recognized in hellor. as you pointed out, senator, in the heller decision, supreme

court was addressing a narrow issue which is whether an individual right, under the second amendment, applied to limit the federal government's rights to regulate the possession of firearms. the court expressly, justice scalia, in a footnote, identified that there was supreme court precedent, that has said that that right is not incorporated against the states. what that term of incorporation means in the law is that that right doesn't apply to states in its regulation of its relationship with its citizens. in supreme court parlance, the right is not fundamental. it's a legal term. it's not talking about the importance of the right in a legal term. it's talking about is that right incorporated against the states. when maloney came before the

second circuit, as you indicated, myself and two other judges read what the supreme court said, saw that had it not explicitly rejected its precedent on application to the states, and followed that precedent. because it's the job of the supreme court to change it. you asked me -- i'm sorry, senator, i didn't mean to cut you off. >> no, go ahead. >> you asked me whether i have an open mind on that question. absolutely. my decision in maloney on on any case of this type would be to follow the precedent of the supreme court when it speaks directly on an issue, and i would not prejudge any question that came before me if i was a justice on the supreme court. >> let me just ask -- i just asked senator sessions. i might have one more question and it goes to the area of prosecution.

you've heard appeals in over 800 criminal cases. you affirmed 98% of convictions for violent crimes including terrorism cases and 99% of the time, at least one of the republican appointed judges on the fanel agreed with you. let me ask you about one, united states versus o'donnell. a conviction against the mayor of waterbury, connecticut. a young daughter and niece of a prostitute, young children as young as 9 and 11 were forced to engage in xul accidents with the defendant. the mayor was convicted under a law passed by congress prohibiting the use of any capacity or means of interstate commerce to transmit or contact information about a person under 16 for the purpose of illegal sexual activity. you spoke from a unanimous panel which includes judge jacobs and judge hall. you upheld that conviction against a constitutional challenge that the federal

criminal statute in question exceeded congress' power to the commerce clause. i mentioned it only because i appreciate your deference to the constitutional congressional authority to prohibit illegal conduct. did you have any difficulty in reaching the conclusion you did in that case? >> no, sir. >> thank you. i'm glad you reached it. senator sessions? and i appreciate senator sessions forbearance. >> welcome. good to have you back, judge, and your family and friends and supporters. i hope we'll have a good day today. i look forward to dialogue with you. i got to say that i liked your statement on the fidelity of the law yesterday and some of your comments this morning and i also have to say had you been saying that with clarity over the last decade or 15 years, we'd have a lot fewer problems today.

because you have evidence, i think it's quite clear, a philosophy of the law that suggests that the judge's background and experiences can and should -- even should -- and naturally will, impact their decision, which i think goes against the american ideal and oath that a judge takes to be fair to every party and everyday when they put on that robe, that is a symbol that they are to put aside their personal biases and prejudices. so i'd like to ask you a few things about it. i would just note that it's not just one senate as my chairman suggested that causes a difficulty. it's a body of thought over a period of years that causes us difficulties. and i would suggest that quotation he gave was not exactly right of the wise latina comment that you made.

you've said, i think, six different times, quote, i would hope that a wise latino woman with the richness of her experiences would more often than not reach a better conclusion. so that's a matter that, i think, we'll talk about as we go forward. let me recall that, yesterday, you said it's simple fidelity to the law the task of a judge is not to make law, it's to apply law. i hartley agree with that. however, you previously have said the court of appeals is where policy is made and you said in another occasion, the law that lawyers practice and judges declare is not a definitive, capital "l" law that many would like to think exists. closed quote. so i guess i'm asking today what do you really believe on those

subjec subjects? that there is no real law? and that judges do not make law. or that there is no real law and the court of appeals is where policy is made? discuss that with us, please. >> i believe my record of 17 years demonstrates fully that i do believe that law that judges must apply the law and not make the law. whether i've agreed with a party or not, found them sympathetic or not, in every case, i have decided, i have done what the law requires. with respect to judges making policy, i assume, senator, that you were referring to a remark that i made in a duke law student dialogue. that remark, in context, made very clear that i wasn't talking

about the policy reflected in the law that congress makes. that's a job of congress to decide what the policy should be for society. in that conversation with the students, i was focusing on what district court judges do and what circuit court judges do and i noted that district court judges find the facts, and they apply the facts to the individual case. and when they do that, they're holding, they're finding. it doesn't bind anybody else. appellate judges, however, establish precedent. they decide what the law says in a particular situation. that precedence has policy ramifications, because it binds not just the litigants in that case, it binds all litigants in similar cases and cases that may

be influenced by that precedent. i think if my speech is heard outside of the minute and a half that youtube presents and its full context examined, that it's very clear that i was talking about the policy ramifications of resident and never talking about appellate judges or courts making the policy that congress makes. >> judge, i would just say i don't think it's that clear. i looked at that tape several times and i think a person could reasonably believe it meant more than that. but, yesterday, you spoke about your approach to rendering opinions and said, quote, i seek to strengthen both the rule of law and faith in the impartiality of a justice system and i would agree. but you have previously said this -- i am willing to accept

that we who judge must not deny differences resulting from experiences and heritage, but attempt, as a supreme court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate. so, first, i'd like to know, do you think there's any circumstance in which a judge should allow their prejudices to impact their decision-making? >> never their prejudices. i was talking about the very important goal of the justice system is to ensure that the personal biases and prejudices of a judge do not influence the outcome of a case. what i was talking about was the obligation of judges to examine what they're feeling as they are adjudicating a case and to ensure that's not influencing the outcome. life experiences have to influence you. we're not robots to listen to

evidence and don't have feelings. we have to recognize those feelings and put them aside. that's what my speech was saying. that's our job. >> but the statement was, i willingly accept that we who judge must not deny the differences resulting from experience and heritage, but continuously to judge when those opinions, sympathies and prejudices are appropriate. that's exactly opposite of what you're saying, is it not? >> i don't believe so, senator, because what i was saying is because we have feelings and different experiences, we can be led to believe that our experiences are appropriate. we have to be open-minded to accept that they may not be, and that we have to judge always that we're not letting those things determine the outcome.

but there are situations in which some experiences are important in the process of judging, because the law asks us to use those experiences. >> well, i understand that, but let me just follow-up that you say, in your statement, that you want to do what you can to increase the faith in the impartiality of our system, but isn't it true this statement suggests that you accept that there may be sympathies, prejudices and opinions that legitimately can influence a judge's decision? how can that further faith in the impartiality of the system? >> i think the system is strengthened when judges don't assume they're impartial, but when judges test themselves to identify when their emotions are driving a result or their experiences are driving a result and the law is not.

>> i agree with that. i know one judge that says that if he has a feeling about a case, he tells his law clerks to watch me, i do not want my biases, sympathies or prejudices to influence this decision, which i've taken an oath to make sure is impartial. i just am very concerned that what you're saying today is quite inconsistent with your statement that you willingly accept that your sympathies, opinions and prejudices may influence your decision-making. >> well, as i have tried to explain what i try to do is to ensure that they're not. if i ignore them and believe that i'm acting without them, without looking at them and testing that i'm not, then i could, unconsciously or otherwise, be led to be doing the exact thing i don't want to do, which is to let something but the law command the result.

>> well, yesterday, you also said that your decisions have always been made to serve the larger interest of impartial justice. a good aspiration. i agree. but in the past, you've repeatedly said this -- i wonder whether achieving the goal of impartiality is possible at all in even most cases and i wonder whether by ig knowing ignoring our differences as women, men, or people of color, we do a disservice to both the law and society. aren't you saying there that you expect your background and heritage to influence your decision-making? >> what i was speaking about in that speech was harkened back to what we were just talking about a few minutes ago, which is life experiences do influence us in good ways. that's why we seek the

enrichment of our legal system from life experiences. that can affect what we see or how we feel, but that's not what drives a result. the impartiality is an understanding that the law is what commands the result and so to the extent that we are asking the questions, as most of my speech was an academic discussion about what should we be thinking about, what should we be considering in this process, and accepting that life experiences could make a difference, but i wasn't encouraging the belief or tempting to encourage the belief that i thought that that should drive the result. >> judge, i think it's consistent in the comments i've quoted to you and your previous statements that you do believe that your background will accept -- accept the result in

cases and that is troubling me so that is not impartiality. don't you think that is not consistent with your statement that you believe your role as a judge is to serve the larger interest of impartial justice? >> no, sir. as i've indicated, my record shows that at no point or time have i ever permitted my personal views or sympathies to influence an outcome of a case. in every case where i have identified a sympathy, i have articulated it and explained to the litigant why the law requires a different result. >> judge -- >> i do not permit my sympathies, personal views, or prejudices to influence the outcome of my cases. >> well, you said something similar to that yesterday, that in each case, i've applied law to the facts at hand. but you've repeatedly made this

statement. quote, i accept the proposition. i accept the proposition that a difference there will be by the presence of women and people of color on the bench, and that my experiences affect the facts i choose to see as a judge. first, that's troubling to me as a lawyer. when i present evidence, i expect a judge to hear and see all of the evidence to get presented. how is it appropriate for a judge ever to say that they will choose to see some facts and not others? >> it's not a question of choosing to see some facts or another, senator. i didn't intend to suggest that and in the wider context, what i believe i was -- the point i was making was that our life experiences do permit us to see some facts and understanding them more easily than others. but, in the end, you're absolutely right. that's why we have appellate

judges that are more than one judge because each of us from our life experiences will more easily see different perspectives argued by parties, but judges do consider all of the arguments of litigants, i have. most of my opinions, if not all of them, explain to parties why the law requires what it does. >> do you stand by your statement that, my experiences affect the facts i choose to see? >> no, sir, i don't stand by the understanding of that statement, that i will ignore other facts or other experiences because i haven't had them. i do believe that life experiences are important to the process of judging. they help you to understand and listen. but that the law requires a result and it will command you to the facts that are relevant

to the disposition of the case. >> well, i would just note you made that statement in individual speeches about seven times over a number of years' span and it's concerning to me. so i would just say to you, i believe in judge sedabomb's formulation. she said' you disagreed. this is really the context of your speech and you used her -- her statement as sort of a beginning of your discussion and you said, she believes that a judge, no matter what their gender or background, should strive to reach the same conclusion and she believes that's possible. you then argue that you don't think it's possible in all, maybe even most cases. you deal with the famous quote of justice o'connor in which she says the wise old man should reach the same decision as a wise old woman and you pushed

back from that. you say you don't think that's necessarily accurate. and you doubt the ability to be objective in your analysis. so how can you reconcile your speeches which repeatedly assert that impartiality samir aspiration which may not be possible in all or even most cases with your oath that you've taken twice which requires impartiality? >> my friend judge cedarbomb is here this afternoon and we are good friends. and i believe that we both approach judging in the same way which is looking at the facts of each individual case and applying the law to those facts. i also, as i explained, was using rhetorical flourish that fell flat. i knew that justice o'connor

couldn't have meant that if judges reach 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 was -- fell flat. it was bad. because it left an impression that i believed that life experiences commanded a result in a case, but that's clearly not what i do as a judge. it's clearly not what i intended. in the context of my broader speech which was attempting to inspire young hispanic, latino students and lawyers to believe that their life experiences added value to the process. >> well, i can see that, perhaps, as i -- a layperson's approach to it, but as a judge

who has taken this oath, i'm very troubled that you would repeatedly, over a decade or more, make statements that consistently, any fair reading of these speeches, consistently argues that this ideal and commitment, i believe every judge is committed, must be, to put aside their personal experiences and biases and make sure that that person before them gets a fair day in court. judge, on the philosophy can impact your judging, i think it's much more likely to reach full flower if you sit on supreme court and then it will, on a lower court where you're subject to review by your colleagues and the higher court and, so with regard to how you approach law and your personal experiences, let's look at the new haven firefighters case, the

ricci case. in that case, city of new haven told firefighters that they would take an exam, set forth the process for it, that would determine who would be eligible for promotion. the city spent a good deal of time and money on the exam. to make it a fair test of a person's ability to see -- to serve as a supervisory fireman which, in fact, has the awesome responsibility at times to send their firemen into a dangerous building that's on fire, and they had a panel that did oral exams, it wasn't all written, on consisting of one hispanic and one african-american and one white and according to the supreme court, this is what the supreme court held. the new haven officials were careful to ensure broad racial participation in the design of the test and its administration. the process was open and fair. there was no genuine dispute

that the examinations were job-related and consistent with business purposes. business necessity. but after -- but after the city saw the results of the exam, it threw out those results because, quote, not enough of one group did well enough on the test. the supreme court then found that the city, and i quote, rejected the test results solely because the higher scoring candidates were white. after the tests were completed, the raw racial results became -- the raw racial results became the predominant rationale for the city's refusal to certify the results, closed quote. so you've stated that your background affects the facts you choose to see. was the fact that the new haven firefighters had been subject to

discrimination one of the facts you chose not to see in this case? >> no, sir. the panel was composed of me and two other judges in a very similar case, the seventh circuit and opinion authored by judge estabrook. i'm sorry, i misspoke. it wasn't judge esta brook but judge posener and saw the case in -- neither judge. i've confused some statements that senator leahy made with this case and i apologize. in a very similar says, the sixth circuit approached a very similar issue in the same way. so a variety of different judges on the appellate court were looking at the case in light of established supreme court and second circuit precedent and determined that the city facing potential liability under title vii could choose not to certify the test if it believed an

equally good test could be made with a different impact on affected groups. the supreme court, as is its prerogative and looking at a challenge, established a new consideration or a different standard for the city to apply, and that is was there substantial evidence that they would be held liable under the law. that was a new consideration. our panel didn't look at that issue that way because it wasn't argued to us in the case before us. and because the case before us was based on existing precedent. so it's a different test -- >> judge, there was apparently unease within your panel. i was really disappointed and i think a lot of people have been, that the opinion was so short,

it did not discuss the serious legal issues that the case raised and i believe that's legitimate criticism of what you did. but it appears, according to stewart taylor, the respected legal writer for "the national journal," that stewart taylor concluded that it appears that judge kabrano was concerned about the outcome of the case, was not aware of it, because it was a unpublished opinion but it began to raise the question of whether a rehearing should be granted. you say you're bound by the superior authority. but the fact is when the question of rehearing that second circuit authority that you say covered the case, some says it didn't cover so clearly, but that was up for debate. and the circuit voted and you voted not to reconsider the

prior case. you voted to stay with the decision of the circuit and, in fact, your vote was the key vote. had you voted with judge kabrano, a puerto rican ancestry. had you voted with him, you could have changed that case. in truth, you weren't bound by that case, had you seen it in a different way. you must have agreed with it and agreed with the opinion and stayed with it until it was reversed by the court. let me just mention this. in 1997 -- >> is that a question? >> well, that was a response to some of what you said, mr. chairman. because you misrepresented factually how the posture of the case -- >> well, i obviously, will disagree with that but we'll have a chance to vote on this issue. >> in 1997 when you came before the senate -- that -- i was a new senator.

i asked you this. in a suit challenging a government racial preference, and, quote or set aside, will you follow the supreme court decision in adderand and suggest -- and subject racial preferences to the strictest judicial scrutiny? qosed closed quote. i asked you would you -- in adderrand supreme court held that all governmental discrimination, including affirmative action programs that discriminated by race of an applicant must face strict scrutiny in the courts. in other words, this is not a light thing to do when one race is favored over another, you must have a really good reason for it or it's not acceptable. after adderrand the government agencies must prove there is a compelling state interest in support of any decision to treat people differently by race.

this is what you answered. in my view, the adderrand court correctly determined the same level of scrutiny, strict scrutiny applies for the purpose of evaluating the constitutionality of all government classifications. whether at the state or federal level, based on race, closed quote. so that was your answer. and it deals with government being the city of new haven. you made a commitment to this committee to follow adderrand. in view of this commitment you gave me 12 years ago the word adderrand, equal protection and strict scrutiny completely missing from any of your panel's discussion of this decision. >> because those cases were not what was at issue in this decision and, in fact, those cases were not what decided the supreme court's decision. the supreme court -- parties

were not aerg arguing the level of scrutiny that would apply with respect to intentional discrimination. the issue was a different one before our court and the supreme court which is what is a city to do when there is proof that its test desperately impacts a particular group. and supreme court decided, not on the basis of scrutiny that what it did here was wrong, what the city did here was wrong, but on the basis that the city's choice was not based on a substantial basis in evidence to believe it would be held liable under the law. those are two different standards, two different questions that a case would present. >> but, judge, it wasn't that simple. this case was recognized pretty soon as a big case, at least i noticed what perhaps kicked off judge kabranos concern was a

lawyer saying it was the most important discrimination case that the circuit had seen in 20 years. they were shocked they got basically one paragraph decision unsigned back on that case. judge kabranos apparently raised this issue within the circuit and asked for rehearing. your vote made the difference in not having a rehearing en banc. he said, quote, municipal employers could reject the results and talking about the results of your test, the impact of your decision. municipal employers could reject the results of an employment examination whenever those results failed to yield a desirable outcome. ie, fail to satisfy a racial quota, closed quote. that was judge kabranos analysis of the impact of your decision

and he thought it was important very and wanted to review this case and thought it deserved a complete and thorough analysis and opinion. he wanted the whole circuit to be involved in it and to the extent that some prior precedent in the circuit was different, the circuit could have reversed that precedent had they chose to do so. donts you think -- tell us how it came to be that this important case was dealt with in such a cursory manner. >> the panel decision was based on a 78-page district court opinion. the opinion remps referenced it and the court incorporated it directly but it was referenced by the circuit and it relied on that very thoughtful, thorough opinion by the district court and that opinion discussed second circuit precedence to its fullest extent. justice kabranos had one view of

the case, the panel another. the majority of the vote. it wasn't just my vote. the majority of the court, not just my vote, denied the petition for rehearing. the court left to the supreme court the question of how an employer should address what no one disputed was prima facie evidence that its test desperately impacted on a group. that was undisputed by everyone, that the case law did permit employees who had been desperately impacted to bring a suit. the question was for the city, was it racially discriminating when it didn't accept those tests or was it attempting to imply with the law. >> well, judge, i think it's not fair to say that a majority -- i guess it's fair to say a

majority voted against rehearing, but it was 6-6. unusual that one of the judges had the challenge a panel's decision and your vote made majority not to rehear it. ricci did deal with some important questions. some of the questions that we have got to talk about as a nation, we've got to work our way through. i know there's concern on both sides of this issue and we should do it carefully and correctly. but do you think that frank ricci and the other firefighters whose claims you dismissed felt their arguments and concerns were appropriately understood and acknowledged by such a short opinion from the court? >> we were very semp thitek sympathetic and expressed our sympathy to mr. ricci and the others. we understood the efforts that they had made in taking the test, we said as much.

they did have before them a 78-page thorough opinion by the district court. they, obviously, disagreed with the law as it stood under second circuit precedents. that is why they were pursuing their claims and did pursue them further. in the end, the body that had the discretion and power to decide how these tough issues should be decided, that along the precedent that had been recognized by our circuit court and another, at least the sixth circuit, but along what the court thought would be the right test or standard to apply. and that is what the supreme court did. it answered that important question, because it had the power to do that, not the power, but the ability to do that because it was faced with the arguments that suggested that. the panel was dealing with

precedence and arguments that relied on our precedent. >> thank you, judge. i appreciate this opportunity. i would just say, though, had the procurement opinion stood without rehearing requested by one of the judges in the whole circuit and kicked off the discussion, it's very, very unlikely that we would have heard about this case or the supreme court would have taken it up. thank you, mr. chairman. >> thank you. obviously, we can talk about your speeches. but alternately, we determine how you act as a judge. and how you make decisions. i will put into the record the american bar association, which is unanimously, unanimously given you the highest rating. i put into the record the new york city bar, which said you're extremely well credentialed to sit on the supreme court. i'll put that in there.

i'll put in the congressional research service, which analyzed your cases and found that you consistently deal with the law and -- >> while we're watching the chairman of the committee patrick leahy continue to chair the hearing. of course, but a lot of issues have been raised already, especially by the ranking republican jeff sessions. andrea mitchell joins me as well as richard wolf. andrea, it seems to me she did her best to explain the decision in the ricci case. the case of the white firefighters, the group included one hispanic who believed that they had been unjustifiably rejected in their attempt to be promoted. because they passed a test wherein the results showed that armies did african-americans did very badly. did she improve her situation or not in the answer? >> i think this was a tough question and answer question. senator sessions is not

accepting her explanation that, in context, first of all, the wise latina comment was to inspire and encourage minority, largely minority women, latino women, that they could be anything, that their experiences is their life experiences were relevant. she tried to say that this, in context, did not mean she was saying that her prejudices would be more important than as she claimed her fidelity to the law. senator sessions did not accept that and kept rereading that seven times she had made the same speech and finally she said it was bad. i was trying to play on the words of justice sandra day o'connor, the wise woman comment and she said it was bad, it fell flat. >> politically how important was it she said it was bad? >> i think it was important apology because lindsey graham pointed out at the beginning he might vote for her. the republican lindsey graham but indicated that she needed to come off of that, he said, that

she needed to apologize about it and as close you could expect her to come to an apolicy guy. she tried to explain it and it wasn't work with sessions and said it was bad. on the firefighters case that you cite, she kept saying this was narrow ruling, in fact, she was not making law, she suggested that the -- 5-4 decision, the majority of the supreme court made law by finding a different issue and a different standard that they went beyond the 78-page legal brief that had present her and three-judge panel in the appeals court. she was requested about her comments at duke law where she had said the students, students considering do you want to be a district judge or appeals judge what is your long-range goal. she said on the appellate court, we make policy. well, that she had to explain as well. she was well prepared for that. >> she meant precedent? >> she said when she ments policy, it's congress makes policy and judges don't make policy unless you're on the

supreme court but that basically she said the appellate court makes precedent that is followed by other courts. she was saying it more impecket i think she did well in explaining herself but clear that senator sessions is not going to back down. he is going to be her chief interrogator and patrick leahy is her chief defender. those are the roles. >> i think we're seeing a process of stuporing the conquer. i think that is to work your way into the supreme court you have to bow your head low, through mea kulpa several times and admit to your frailties by the likes of your critics, right? >> right. >> she didn't make the mea kulpa alone. she. >> right. this is a check and balance. the moment that congress can go to the lifetime appointees and either test them or correct them or take them down a few notches. it's politics on both sides. we talked yesterday about how

the republicans pick this line between going after this historic appointment, first latina to go to the supreme court as a nominee, and what they have to do politically. look. sessions, of course, is well within his right to push her on these comments but the majority of the questions were focused on race. either about cases or about prejudices. >> your point? >> the point is he is playing racial politics, too. . >> because he is from alabama? >> hey, look. alabama politics on one side and republicans on a national stage so it's aggressive. >> just to add to your point. i think he is saying the last time we had you before us to look at your awe poimt to the appellate court you promised to look with deep secrete knee at any kind of affirmative action and hold it to a high standard. there has to be a compelling reason why we use any racial classification to achieve any goal in terms of a public policy. you never do that in the ricci case. you never gave us the language

in the last cases that you decided. he is saying i don't trust you. >> he is saying you didn't use the language in 1997 that you promised me when i requested you when you were -- >> therefore, he is setting himself up to reject her nomination. >> but she is saying that wasn't the issue that came before us. i was following a strict constructionist approach. there was a 78-page -- >> a problem with that. she says the policy is made at the appellate level. she can't just go with the facts of the case and the precedents. she is entitled to make precedent because she said that at duke. >> she is entitled if she is part of -- if that's her decision but as part of a panel she was agreeing with the panel. they took a narrow approach and it was not judicial activism. with the new haven panel did was very narrowly defined. >> but you see my point? she is trying to have it both ways. appellate court is a great opportunity to establish precedence to look all of the law up to my and begin to set

out what comes out as policy in a court. >> she backed down from that much more. the wise latina argument she said it fell flat, a bad thing. the policy she had to backtrack from. >> it wasn't complete from her own defense in the ricci case. >> and with the -- >> what comes down to the empty empathy, sessions came after her a lot. she said i think the system is strengthen when judges don't assume they're impartial. segs had toy sessions had to agree with that. everything you've said outside of this room doesn't track with that but he has to agree -- her -- >> suppose a white guy said i bring to this court application when i submit to you my qualifications to be a judge of supreme court. i bring to you street smarts and common sense and earned after years of dealing with the law. would that pass muster? street smarts, common sense?

are you allowed to bring those to the court? but she is saying it a different way. if she had said street smarts growing up in a tough neighborhood would that work better? >> it probably would. the comparative she used it would give you better judgment than anybody else. that's the problem. interestingly. i thought as well from the start the setup. the setup, her as a tough d.a., sympathizing with the victims of crime. she's no soft liberal. that was a powerful piece of character. >> pat leahy leading the way which is his role there. >> you said yesterday this was a surrogate fight over the direction of the country political politically. at issue here? that's an issue. >> that's what has been litigated before us. you beat me to the punch in your articulati articulation. we will be right back. they are establishing a lot of political territory here and things are getting done this morning. we'll be right back. if you're taking 8 extra-strength tylenol...

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\11am norah o'donnell is here in the hearing room. we still do the tick tock what it feels like in the room. yesterday was hecklers and interruptions. so far, so good. >> that's right. but everyone sitting on pins and needles waiting for that moment if there is a complete meltdown that lindsey graham referred to yesterday. even he said i don't expect that to happen. this is an established jurist 17 years on the bench and impressive record and we've seen her respond very measuredly to these tough questions by the ranking republican senator jeff

sessions, of course. i think what is interesting is her pushing back as they are sort of questioning her speeches and her personal beliefs. she has said life experiences have to influence you. we are not robots. that's, i think, one of the key sound bites of the day. at the same time, her saying that at no point in my career have i allowed personal sympathies to influence my decisions. now, one other interesting note as we're here, the republicans trying very hard to point out the -- what she said before and what she has said now. that is probably one of our sources calling on the phone here. let me show you here, chris, they are handing out, look. senate republican communicati s communications, they are handed out every 15 minutes what she said now and then. suggesting of course, she has a 180. here is one. complete conversion. complete 180 on o'connor stating pointing out judge sotomayor in

her confirmation hearings today saying the words i grooed agreeing with justice o'connor was attempting to convey but in previously in 2001 judge sotomayor said i am not so sure i agree with that statement. so, again, republicans still trying to make a key point here about that judge sotomayor is changing what she said. of course the white house administration officials say she is attempting to clarify statements that were taken out of context. chris? >> it's interesting the republican party has taken a partisan aspect to this, in other words, given it that by putting these statements out before they each get to vote. but interesting already. thank you, norah, for that. we're going to take a break and be back with more testimony from the candidate for the supreme court. come on in. you're invited to the chevy open house. where getting a new vehicle is easy. because the price on the tag is the price you pay on remaining '08 and '09 models.

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already. andrea mitchell and richard wolf picked up she said it was bad when courts make policy and stepping back from what was taken as a tough position and bowing to the politics of this and mulliving, in fact, some of the concerns expressed by lindsey graham who will ask her questions later. he may well say you've done what i asked you to do, you've apologized so we've already seen progress here today. here is a democrat from wisconsin continuing his questioning. >> you're required to follow precedent. assal an appellate court judge, i asked you if you would express your opinion assuming that you became a supreme court justice and assuming that you might have a chance someday to review the scope of that decision. >> i don't prejudge issues. >> okay. >> that is actually -- i come to every case with an open mind. >> all right.

>> every case is anew for me. >> that's good. all right. just leave it to that. as you know, judge, the land mark case of griswold versus connecticut a constitutional right to privacy as it applies to contraception. do you agree with with that? >> that is the precedent of the court so it is settled law. >> is there a general constitutional right to privacy and where is the right to privacy in your opinion found in the constitution? >> there is a right of privacy. the court has found it in various places in the constitution, has recognized rights under those various provisions of the constitution. it's founded in the fourth amendment's right and prohibition against unreasonable search and seizures. most commonly -- i shouldn't say most commonly because search and

seizure cases are quite frequent before the court. but it's also found in the 14th amendment of the constitution when it is considered in the context of the liberty interests protect by the due process clause of the constitution. >> all right. the judge's ruling in griswold laid the foundation for roe versus wade. in your opinion is roe set a law? >> the court's decision in planned parenthood versus casey reaffirmed the core holding of roe. that is the precedent of the court and settled in terms of the holding of the court. >> do you agree with justices suitor, o'connor and kennedy in their opinion in casey which reaffirmed the core holding in roe? >> as i said, i -- casey reaffirmed the holding in roe. that is the supreme court's settin