politico. nora raised the point that some could vote for confirmation. i'm figuring sessions is probably a no. i'm figuring that cornyn is probably a no as chairman of the campaign committee. can't afford to be too lovey dovey with democrats. kyl tends to be right on some of the issues, hatch, grassley and coburn are probably the best bets. what do you think? >> i think you've got that about right. if you look in the past, hatch and grassley in particular have always felt that the capabilities of a candidate were most important, their qualifications. they have always argued that. and in her case, they have clearly not shown she's not qualified to be on the court. so in the end, that will likely be a driving reason for them to lean towards yes. >> i'm watching lindsey graham, because i find him fascinating generally. he's a classic u.s. senator, he could be one of those seed

cooley types, the southern gentleman. he said he wants to see something like an apology from her for her comments saying a wise latina would render a better judgment than someone else. she took that back and said that was bad, she shouldn't have said that. do you think he's had his standard met for an apology? >> i suspect that the senator -- senator graham will go back at this issue. i think to him, i mean, all of meez republic these republicans have to at least show the flag. if senator graham has staked this out as an area where he wants to hear something special and unique, he'll use his questioning to get there. i think she will pass whatever bar he sets. what's most important is that senator graham has an opportunity to show this issue was important to him, and he questioned her in a rigorous way on it. >> it's always good to show that you can have impact, too, on someone. he would do that, i think if he said that she had measured up to

what he wanted in terms of a retraction. thank you very much, jean cummings. i love reading my politico every morning at home. i love reading your politics at 6:00 in the morning when i'm ready for it. thank you very much for you and all of the people at the politico. let's go to pete williams, our own nbc news justice correspondent. pete, the story you've got to put together tonight, what is it so far as we come back from lunch? >> reporter: it looks like senator leahy is about to go. i'll quickly say, it's what you've been talking about, her statements and the fact she says it was a bad thing to do, chris. >> thank you very much for that concise assessment. it is in fact something like a walk back. here she is now with the chairman. >> -- photographer. i do, two minutes after the interview, the phone rings. my mom called and said, don't you ever say that, they'll think you don't work. actually, i don't, i just

recognize you're doing all the work. and i appreciate how well you're doing it. turn next to senator grassley, then after senator grassley to senator feingold. senator grassley. >> welcome once again, judge. i hope you had a good break. and i appreciate very much the opportunity to ask you some questions. i'd like to start off my round with some questions about your understanding of individual property rights and how they're protected by the constitution. and let me say as i observe property rights around the world, there's a big difference between developed nations and developing nations and respect for private property has a great deal to do with the advancement of societies. so i believe all americans care about this right. they want to protect their homes and anything they own from unlawful taking by government. but this is also a right that is

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

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

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

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

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

each other. >> do you believe the supreme court overstepped their constitutional authorities when they went yonbeyond words of th constitution and expanded and took an individual's private property. i believe everybody thinks kelo was an expansion of previous precedent there. >> i know that there are many litigants who have expressed that view. and in fact there's been many state legislators that have passed state legislation not permitting state governments to take in the situation that the supreme court approved of in kelo. the question of whether the supreme court overstepped the constitution as i've indicated the court at least my understanding of the majority's opinion believed and explained

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

effect and indeference. but the extent of that has to await the next step, the next cases. >> well then maybe it would be fair for me to ask you, what is your understanding of the constitutional limitations on government -- any government entity taking land for public purpose? >> well, that was the subject of much decision in the kelo case among the justices. and with certain justices in the dissent, hypothesizing that the limits were difficult to see, the majority taking the position that there were limits, as i've indicated to you, opining on a hypothetical is very, very difficult for a judge to do. and as a potential justice on the supreme court, but more importantly as a second circuit judge still sitting, i can't

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

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

your panel affirmed that decision in a five paragraph opinion. why did you deny mr. didden his day in court? how can these facts in essence, allegations of extortion, at least not warrant the opportunity to call witnesses to see if mr. didden was telling an accurate story? >> the didden case presented a narrow issue. >> officer, remove that man immediately! we will stand in order. >> defend the babies! >> we will stand in order. officers will remove that man. and they did. and they did.

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

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

that sets the limits of the action. >> all right. >> in the didden -- i'm sorry. >> no, please, i interrupted you. i shouldn't have interrupted you. >> in the didden case -- >> yes. >> -- the question was whether mr. didden knew that the state was intending to take his property and for what the state claimed was a public use. and that it had plans to have a private developer take his -- they take his property and the private developer develop the land. so there was a full hearing by the village on this question. of whether there was a public use of the land. mr. didden didn't claim in the

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

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

defined as an unlawful demand for money. on this one piece of property within a larger development that the private developer was actively engaged in doing what he had contracted with the state to do to revive the economic base by making investments in t it. the private developer knew that mr. didden had his claims, the private developer had agreements with the state. so he was doing in -- at least this was the private developer's argument -- what he was entitled to do, which is to say, we disagree. i'm claiming that i have a right under contract. you're claiming that you have a right under the takings clause.

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

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

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

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

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

environmental impact, even when the cost of those upgrades were disproportionate to benefit. following long established precede precedent, the supreme court held that the epa was reasonable in applying a cost benefit analysis when adopting regulations under the clean water act. in reversing, the supreme court questioned your proper application of subtle law that agency regulation should be upheld so long as they're reasonable. under chevron, agency interpretation of statutes are entitled to deference, as long as they are reasonable, in other words if they aren't capricious and arbitrary. do you find it unreasonable that the epa was willing to allow money to be spent in a cost effective manner by not requiring billions of additional dollars to be spent to save a minimal number after decisional

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óñóñóñóñóñóñóñóñóñóñóñóñóñóñóñós access www.sprintrelay.com. back with the supreme court confirmation hearings with justice sonia sotomayor. we've had by the way a series of disruptions to the hearings today and yesterday. yesterday, there were four people arrested all on charges of unlawful contact, disruption of congress. today the heckler, i don't knows if he's been arrested yet or not, baby killer, baby killer. he was hauled out of the room as were the others yesterday. let's go back to the questioning by senator charles grassley. >> -- has to minimize an environmental effect. as i said, that does have, as

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

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

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

the delays for a substantial period of time in that decision. and it was that the supreme court was considering a case, a massachusetts case, that had some relevancy or at least had relevancy to the extent that the panel asked the parties to brief further the a plpplicability of that case. >> thank you senator grassley. senator feingold. >> i'm enjoying listening to you, both your manner and obvious tremendous and knowledge and understanding of the law. in fact, i'm enjoying it so much that i hope when you go into these deliberations about cameras in the courtroom that you consider the possibility that i and other americans would like the opportunity to observe your skills for many years to come from the comfort of our family rooms and living rooms.

>> you were a very good lawyer, weren't you, senator? >> let me get into a topic that i discussed at length with two most recent supreme court nominees, chief justice roberts and justice alito. that's the issue of executive power. in 2003, you spoke at a law school class about some of the legal issues that have arisen since 9/11. you started your remarks with a moving description of how americans stood together in the days after those horrific events and how people from small midwestern towns and people from new york city found their common threads as americans. you said. as you said in that speech, while it's hard to imagine that something positive could ever result from such a tragedy, that there was a sense, in those early days of coming together as one community, that we would all help each other get through this. and was, of course, something that none of us ever experienced before, something i've often discussed as well. i have to also say in the weeks

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

the issue of the country's safety and the consequences of that great tragedy are the subject of continuing discussion among, not just senators, but the whole nation. in the end, the constitution, by its terms, protects certain individual rights. that protection is often fact specific, many of its terms are very broad. so what's an unreasonable search and seizure? what are other questions that are fact specific? but in answer to your specific question, did it change my view of the constitution, no, sir.

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

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

court's decisions of rasul, hamdan, et cetera. what's your view on those cases? >> it's looking at what the actions are of either the military and what congress has done or not done. and applied constitutional review to those actions. >> is it fair to say give than line of cases we can see that at least as regard to the supreme court, it believes mistakes were made? with regard to the post-9/11 policy? because in each of those cases there was an overturning of a decision either by the congress or executive. >> i smile only because that's not the way judges look at that issue. we don't decide whether mistakes

were made. we look at whether action was consistent with constitutional limitations for statutory limiting as. >> in each of those cases there was a problem with a constitutional violation or a problem with a congressional action, right? >> yes. >> that's fine. as i'm sure you're aware, many of us on the committee discussed at length with the prior supreme court nominee, the framework for evaluating the scope of the national power in the national security context. you discussed this at length with senator feinstein and i and others on the committee are deeply concerned about the broad assertion of executive power that's been made in recent years, an interpretation that has been used to authorize the violation of clear statutory prohibitions from the intelligence surveillance act and the anti-torture statute. you discussed with senator feinstein the third category. that's where as justice jackson

said, the president's power is at its lowest ebb because congress has prohibited some action. i take the point of careful scholars that argue that hypothetically speaking, congress could conceivably pass a law that's plainly unconstitutional. if congress passed a law that said somebody other than a president would be the commander in chief of a particular armed conflict and not subject to presidential direction, presumably that would be out of bounds. but setting aside such abstract hypotheticals, as far as i'm aware, i'm pretty sure this is accurate, supreme court has never relied on the framework to conclude that the president may violate a clear statutory prohibition. the court rejected president truman's plan to seize the steel mills. is that your understanding of the supreme court precedent in this area? >> i have had had a sufficient

number of cases in that area to say that i can remember every supreme court decision on a question related to this topic. as you know, in the youngstown case, the court held that the presidents had not acted within his powers in seizing the steel mills in the particular situation existing before him at the time. but the question or the framework doesn't change, which is each situation would have to be looked at individually, because you can't determine ahead of time with hypotheticals what a potential constitutional conclusion will be. as i may have said to an earlier question, academic discussion is just that. it's presenting the extremes of

every issue and attempting to debate about, on that extreme of a legal question, how should the judge rule. >> i'll concede that point, judge. given your tremendous knowledge of the law and your preparation, i'm sure you would have run into any example of where this had happened. i just want to know, i'm unaware of or anybody is aware of any example where something was justified under the power of the lowest ebb, i'd love to know about it. that's not a question of a hypothetical. that's a factual question about what the history of the case law is. >> i could only accept your assumption. as i said, i have not had sufficient cases to have looked at what i know in light of that particular question that you're posing. >> in august 2002, the office of legale counsel, department the justice issued two memorandums. >> we're watching justice sonia

sotomayor answer questions from russ feingold of wisconsin. he's an anti-war figure of great repute over the last several years. he doesn't like the administration's policy with the war in iraq. questioning the justice's views of authority. >> she's going to have to deal with this, is already dealing with it. the whole question of electronic surveillance, the issues that eric holder and the white house are grappling with over whether or not congress has the right to decide to be briefed by the cia on covert operations. nothing could be more timely right now. these are questions that are indeed going to come to the court. one thing that strikes me, chris, is that we are now on the seventh questioner in the first round of questioning. there are 18 members of this committee. so they are clearly going to have to decide whether to go well into the evening or with each of these senators getting 30 minutes and breaks have to be

built into the schedule, whether this is going to continue tomorrow with the questioning. most likely it will. the question by the senators rather than the witnesses and follow-up questions. >> dare i raise the question of empathny here. how many hours can you submit a nominee to this boarding of a candidate? >> we have a lot of precedent where in fact the hearings for judge justice alito were interrupted when senator kennedy, then the ranking democrat, insisted on a break to look more deeply into his background as a member of a club at princeton. we had the clarence thomas hearings which were nonstop for several days and went straight through the weekend, as late as midnight on a saturday night, as i recall. there's plenty of precedent for going long and hard. it is a lifetime appointment. >> it does require and it's a real test of one's concentration abilities. this candidate is keeping pretty sharp here. we'll be right back to watch this. it's become something of a marathon. as andrea pointed out, we're not

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gecko vo: second rule: "don't steal a coworker's egg salad, 'specially if it's marked "the gecko." come on people. well, the afternoon is growing long now. it's almost 3:00 east coast time. the hearings began this morning around 9:30. a good part of the day now has gone into these hearings and we're watching now the vetting by russ feingold who's a liberal, i think it's fair to say, from wisconsin asking the nominee, sonia sotomayor about her position about executive authority, particularly with regard to war and peace issues. here they go. >> i was just suggesting that i do recognize that the court's more recent jurisprudence in cooperation with respect to other amendments has taken -- has been more recent. those cases as well as stare

decisis and a lot of other things will inform the court's decision on how it looks at a new challenge to a state regulation. >> and, of course, it is true that despite that trend that you just described that the supreme court is not incorporated several constitutional amendments as against the state but most of those are covered by constitutional providings in state constitutions and the supreme court zigs that refuse to incorporate the federal constitution protections like the case involving the second amendment, the 19th century case date back nearly a century. after heller, doesn't it seem inevitable that it will find the individual right to bear arms to be fundamental, which is a word we've been talking about today? after all, justice scalia's opinion said the right to bear arms had been fundamental for english subjects, blackstones

whose work we said constituted preeminent authority. it's one of the fundamental rights of englishmen. it was he said, natural right of resistance and self-preservation and the right of having and using arms for self-preservation and defense. >> as i said earlier, you're a very eloquent advocate but a decision on what the supreme court will do and what's inevitable will come up from the justices in great likelihood in the future. and so i feel that i'm threading the line of answering a question about what the court will do in a case that may likely come before it in the future. >> let me try in a less lofty way then. you talked about numb chukz

before. >> it is now protected under the constitution that the citizens of the district of columbia can have a handgun. what happens if we don't incorporate and the people of the state of wisconsin, let's say we didn't have a constitutional provision in wisconsin. we didn't have one in the 1980s. but isn't there a danger here that if you don't have this incorporated against the states that we'd have this result for the citizens of d.c. have a constitutional right to have a handgun but the people of wisconsin might not have that right? didn't that make it almost inevitable that you would have to apply this to the states? >> that's a question the court will have to consider. >> i appreciate your patience. >> senator, the supreme court did hold that there is in the second amendment an individual right to bear arms. and that is its holding and that is the court's decision.

i fully accept that. and in whatever new cases come before me, that don't involve incorporation of the second circuit judge, i would have to consider those issues in the context of a particular state regulation of firearms or other instruments. >> i accept that answer. i move on to another area of secret law, that's a development of controlling legal authority that has direct affects on the rights of americans, but it's done entirely this secret. there are two strong examples of that. fis the fisa court often issues court rulings containing substantive interpretation of the fisa act or fisa that have been kept from the public. until a recent change in law, many of them were not available to the full congress either. meaning that members had been called upon to vote on statutory changes without knowing how the court interpreted the existing statute. second, the justice department

issues legal opinions that are binding on the executive branch but are often kept from the public in congress. i understand that these legal documents may sometimes contain classified operational details that would need to be redacted. but i'm concerned that the meaning of a law like fisa, which directly affects the privacy rights of americans could develop entirely in secret. i think it flies in the face of our traditional notion of an open and transparent american legal system. does this concern you at all? can you say a little bit about the importance of the law itself being public? >> well, the question for a judge, as a judge would look at it, is to examine first what policy choices the congress is making in its legislation. it is important to remember that some of the issues that you are addressing were part of congressional legislation as to how fisa would operate.

as you just said there's been amendments subsequent to that. >> i'm here with andrea mitchell wrapping up today. the big news today is that she has made the adjustments in her public record, appropriate to fairly easy confirmation. >> i think her -- you're exactly right, chris. her stepping back from the wise latina comment, which as senator sessions, a critic said she had mentioned seven times, she tried to put it in the context of having encouraged minorities of latinas, women, that they could be anything they wanted to be and their experience as minorities was an enriching one. she realizes it was "politically incorrect." that's the bottom line. it's a hindrance to a successful confirmation. she is basically saying my bad. it was bad.

>> i have to say that sounds a little bit -- >> it's wonderful. >> maybe it's the word she was advised to use because it's bottom line. >> it's conversational and a sound bite that will resonate. if that she's trying to deflect that, pat leahy gave her the opportunity to do it in the opening. then senator sessions drilled down on it, didn't let her off the hook. they're also looking at affirmative action, at guns, at a lot of these other hot button issues. so far she's sailing successfully forward. but we've got a long way to go. we're talking about 7 out of 18 senators questioning her. there's still the possibility of mishaps, stumbles along the way. i'm not talking about her poor ankle. she's sitting there stoically. i can tell you from past ankle injuries, it's difficult to sit for that many hours without putting your foot up. because it does swell and it's very painful.

>> they were supposed to give her a break to get up and exercise. i'm looking here, just the way i like to do things, study the republicans. if you look at the seven republicans, however, sessions has pretty much staked out a position for the nomination. that's fair to say. john cornyn has the job of rallying republicans in the next election. he's forced to vote the way he is. kyl has been so right politically for so many months now, i think he's staked out the pretty far right position. that leaves hatch -- >> he has quite a constituency. >> grassley seems to be open. lindsey graham, i think since he had his concern met about that thing we were talking about, that wise latina, that leaves coburn, who i'm told say personal friend of the president's. >> he's been back and forth to the white house as a physician

and as a hardline opponent of abortion rights might find that objectionable. those will be interesting colluquys. >> it's great to watch this in action. >> it's great to be here. >> we'll turn it over to our other partners. i'm looking at them across the room. different camera angle. david shuster will take up with his partner, tamron hall. david shuster, tamron hall, it's all yours. >> your parents came to new york from puerto rico during world war ii as you explained yesterday. some lunch. you hungry? yeah. me too. (door crashes in) (broadview alarm) (gasp and scream)