borough in the bronx. i met with them. but ultimately you ruled against them, didn't you? >> i didn't author the majority opinion in that case. i dissented from the majority's conclusion, but my dissent suggested that the court should have followed what i viewed as existing law and reject their claims. >> yeah. >> or at least a portion of their claims. >> right. your dissent said that, quote, the appropriate remedial scheme for debts occurring off the united states coast is clearly a legislative policy choice which should not be made by the courts, is that correct? >> yes, sir. >> and that's exactly, i think, the point that my colleague from arizona and others were making about how a judge should rule. how did you feel ruling against individuals who had clearly suffered a profound personal loss and tragedy and were

looking to the courts and to you for a sense of justice? >> in a tragic, tragic horrible situation like that, one can't feel anything but a personal sense of regret, but those personal senses can't command the result in a case. as a judge i serve the greater interests, and that greater interest is what the rule of law supplies. as i mentioned in that case, it was fortuitous that there was a remedy, and that remedy, as i noted in my case, was congress. and, in fact, very shortly after the second circuit's opinion, congress amended the law giving

the victims the remedies they had sought before the court, and my dissent was just pointing out that despite the great tragedy, that the rule of law commanded a different result. >> and it was probably very hard, but you had to do it. here is another case. washington versus county of rockland. rockland is a suburb of new york, which was a case involving black corrections officers who claimed that they were retaliated against after filing discrimination claims. do you remember that case? >> i do. >> did you have sympathy for the officers filing that case? >> well, to the extent that anyone believes that they've been discriminated on the basis of race, that not only violates the law, but one would have -- i wouldn't use the word sympathy, but one would have a sense that

this claim is of some importance and one that the court should very seriously consider. >> right. because i'm sure, like judge alito said and others, you had suffered discrimination in your life as well, so you could understand how they might feel, whether they were right or wrong in the outcome, in filing. >> i have been more fortunate than most. the discrimination that i have felt has not been as life altering as it has for others, but i certainly do understand it because it is a part of life that i'm familiar with and have seen others suffer so much with. >> now, let me ask you again, how did you feel ruling against law enforcement officers, the kind of people you've told us repeatedly you've spent your career working with, da's offices and elsewhere, and for

whom you have tremendous respect? >> as with all cases where i might have a feeling of some identification with because of backgrounds or because of experiences, one feels a sense of understanding what they have experienced, but in that case, as in the twa case, the ruling na i -- that i endorsed against them was required by law. >> another one was boykin versus keycorp. it was one where a woman filed suit after being denied a home loan application. she claimed she was denied the opportunity to own a home because of her race, her sex, and the fact that her prospective home was in a minority concentrated neighborhood. she didn't even have a lawyer or anyone else to interpret the

procedural rules for her. she filed the suit on her own. did you have sympathy for the woman seeking a home loan from the bank? >> clearly everyone has sympathy for an individual who wants to own their own home. that's the typical dream and aspiration, i think, of most americans, and if someone is denied that chance for a reason that they believe is improper, one would recognize and understand their feelings. >> right. and, in fact, you ruled that her claim wasn't timely. rather than overlooking the procedural problems with the case, you held fast to the complicated rules that keep our system working efficiently even if it meant that claims of discrimination could not be heard. we never got to whether she was

actually discriminated against because she didn't file in a timely manner. is my summation there accurate? do you want to elaborate? >> yes, in terms of the part of claim that we held was barred by the statute of limitations. in a response to the earlier question -- to an earlier question, i indicated that the law requires some finality, and that's why congress passes or state legislature passes statutes of limitations that require people to bring their claims within certain time frames. those are statutes, and they must be followed if a situation -- if they apply to a particular situation. finally, let's look at a case that cuts the other way with a pretty repugnant litigant. this is the case called pappas versus giuliani. you considered claims of a

police employee who was fired for distributing terribly bigoted and racist materials. first, what did you think of the speech in question that this officer was distributing? >> nobody, including the police officer, was claiming that the speech wasn't offensive, racist, and insulting. there was a question about what his purpose was in sending the letter, but my opinion dissent in that case pointed out that offensiveness and racism of the letter, but i issued a dissent from the majority's affirmance of his dismissal from the police department because of those letters. >> right. as i understand it, you wrote that what the actual literature that the police officer was distributing was, quote,

patently offensive, hateful, and insulting, but you also noted that, quote, and this is your words in a dissent where the majority was on the other side, quote, three decades of jurisprudence and the centrality of first amendment freedoms in our lives, that's your quote, the employee's right to speech had to be respected. >> in a situation of that case, that was the position that i took because that's what i believed the law commanded. >> even though obviously you wouldn't have much sympathy or empathy for this officer or his actions, is that correct? >> i don't think anyone has sympathy for what was undisputedly a racist statement, but the first amendment commands that we respect people's rights to engage in hateful speech. >> right. now, i am just going to go to a group of cases here rather than one individual case.

we could do this all day long where sympathy, empathy would be on one side, but you found rule of law on the other side, and you sided with rule of law, and so, you know, again, to me analyzing a speech and taking words maybe out of context doesn't come close to analyzing the cases as to what kind of judge you'll be, and that's what i'm trying to do here. now this one, my office conducted an analysis of our record in immigration cases as well as the record of your colleagues, and in conducting this analysis, i came across a case entitled chen versus board of immigration appeals where your colleague said something very interesting. this was judge john newman. he's a very respected judge on your circuit. he said something very interesting when discussing asylum cases. specifically he said the following, quote, we know of no way to apply precise calipers to

all asylum case sos ths so that particularly finding would be viewed by any three of 23 judges of this court to be sustainable or -- >> senator chuck schumer, democrat from new york trying to make the argument that contrary to what republicans have suggested as they have hammered in on judge sotomayor's remarks that there's lots of case law out there where despite showing empathy for a victim of a particular case, he said the law still suggests we have to go contrary to what you want. sort of an interesting strategy there from senator schumer. >> you touched on a short time ago that robert gibbs, white house spokesperson, released a statement saying he believes that judge sotomayor is doing a great job, a fine job. he also said everyone understands that this is the drill, that what we're watching today and what we saw yesterday, part of the drill. let's bring in nbc's kelly o'donnell. she's live from capitol hill. so, kelly, gibbs says this is

the drill. the line of question exactly what many of us suspected, when it's about alleged racial bias, gender bias, and the different cases the judge has heard over her many years. >> reporter: and the judge herself certainly expected this in all of the preparation that she has done. she knew the topic areas. she knew the types of senators who would be tough, who would be friendly. she must be thinking i love new york to have chuck schumer there to sort of help her out after what has been a rough grilling from jon kyl of arizona who gave her no wiggle room on the issues of ethnicity, prejudice, the wise latina comment. here she has chuck schumer, the person who was in effect her guide through the meetings with senators in the early phase of her nomination now trying to help her, if you will, with going over some of the points that he thinks are most flattering to her case and a bit

easier for her to talk about. imagine just for a moment, she has been sitting there all day long. every camera trained on her. every word being judged and measured. it's an exhausting day. it's difficult for any nominee and certainly she's being put through her paces. it's been tough from republicans who want to lay out some very strong positions, from a conservative point of view you know what has been going on all day long. raising the question about would she use outside influences, feelings of empathy, that buzz word that's been so popular, talk about ethnic background, talk about personal experience, and how that might affect the cases in which she has presided. democrats have been trying to say don't look at speeches, look at her vast caseload, and make judgments there. we've received from both sides just pages and pages of assessments of how she has done and how the senators have done in terms of their questioning, and we're not over yet. this is going to go easily to

6:00 to 7:00 eastern tonight. back again for a full day tomorrow. this is a tough process, tamron and david. >> kelly, you mention all the hardships of sitting there, this grueling back and forth, and she has a broken ankle. that can't be pleasant. that can't be a good time. thank you very much. nbc's kelly o'donnell. thanks again. we're going to continue to monitor what's going on on capitol hill, but now more politics and, david, it's the growing controversy involving former vp dick cheney, the cia, and a secret plan to use hit squads to kill al qaeda leaders. >> tamron, the reason we're starting here is because this is becoming a very, very big deal. the house intelligence committee is now preparing to launch a full-scale investigation into charges that cheney ordered the cia to conceal the program from congress, which would be against the law. in recent weeks the former vice president has been nothing less than eager to speak out against

bush era anti-terror tactics. >> i am often asked my views on administration policies and i am happy to give them. if i don't speak out, then where do we find ourself, bob? then the critics have free run and there isn't anybody there on the other side to tell the truth. a career in politics behind me, no elections to win or lose, and no favor to seek. >> but where is mr. cheney now in the face of these allegations that he ordered the cia to keep something secret from congress? the vice president at least publicly is nowhere to be found, and he's gone radio silent. instead, he's been sending his daughter out to defend him. >> i would say pertaining to your father, the question is did he bend any rules, did he break any guidelines in terms of trying to -- >> there's simply no evidence of that. clearly the allegation that is we're hearing here are highly politicized. >> that was liz cheney on msnbc's "morning joe." let's get to the heart of this.

with us ken vogel with politico, and, ken, it is a big deal when the house decides, to heck with the politics and whether this is wise to look back or not. we want to know whether vice president cheney ordered the cia to withhold something from congress. what are they basing that on? >> well, they're basing it on a number of reports, david, that leon panetta, the director of the cia under president obama, actually came forward to the intelligence committees and said that there were plans in the works that never materialized for this secret program and that dick cheney said that he did not want congress to be briefed on it. now, of course, congress in this perennial tug of war between the administration and congress over intelligence wants to explore this and find out, hey, where exactly was this program going and why wasn't congress informed? >> i guess the thing we have to be clear about is that if this was such a great program, you would think there would be nothing wrong with telling congress and the fact of the matter is whether it was a good

program, one that started or one that did not start, the law is pretty clear. they have to keep congress informed of what they're doing, right? >> not just what they're doing, but what they plan to do, and that's what really -- that's how the law kind of affects this case here. clearly, it's something that we're learning more and more that dick cheney had a really hands-on role in crafting policy and in urging the cia not to share some plans with congress or at least to keep in a very close circle the number of people who are aware -- were aware of some of the plans of the bush administration in intelligence. >> if all of this is true, how unprecedented or incredible is it that the vice president of the country would have this kind of authorization over the cia? mind you, we've been talking about this now for a week and not once have we said president bush factoring into this conversation. >> it is surprising. of course, the director of the cia serves at the pleasure of the president, not the vice

president, but as we knew during the bush administration, dick cheney was a very hands-on vice president, especially in intelligence, foreign policy, military affairs. we're learning it's even more the case than we suspected since dick cheney and george bush has left office. the inspector general of the cia released a report recently that said that dick cheney urged the cia not to inform a wide circle of members of congress about the extent of the warrantless wiretapping program. so we're just learning more and more about these things, and congress, i think, is becoming more and more upset with it, particularly the democrats in congress. >> politico's ken vogel. ken, thank you very much. tamron, i think that's absolutely right. you get the sense that congress is fed up. when you look at the list, whether it's warrantless wiretapping, whether it's hyping the prewar intelligence with iraq, whether it's cheney directing scooter libby to out a cia operative, whether it's enhanced interrogation

techniques, or this, keeping things from congress, you start to hear people saying this is over the top. >> i'm curious to see how long it will take for the former vice president to speak out rather than his daughter. hearing from him, a person who certainly has not been as radio silent over the past month. more arrests announced today in the murders of a prominent florida couple, including a teenager now. up next, the emotional announcement coming from police out of florida. also, we're keeping an eye on capitol hill where senator chuck schumer is questioning supreme court nominee sonia sotomayor. we'll be back, myself and david, msnbc, the place for politics. r♪ ♪ 'cause now i'm driving off the lot in a used sub-compact. ♪ ♪ f-r-e-e, that spells free credit report dot com, baby. ♪ ♪ saw their ads on my tv ♪ thought about going but was too lazy ♪ ♪ now instead of looking fly and rollin' phat ♪ ♪ my legs are sticking to the vinyl ♪ ♪ and my posse's getting laughed at. ♪

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tamron, we have some developing news in the murders of a florida couple who were the parents of 17 children. >> police now have seven suspects in custody, one of them only 16 years old. byrd and melanie billings were shot to death in their family's home near pensacola thursday night. police say the primary motive for the murders was robbery. the killers stole a safe from the family's home. one day after the tragedy, the sheriff says the victim's oldest daughter asked him to find the person who killed her parents. >> it is my honor today to tell you, ashley, and your family, we have found them, and they are in custody. >> the billings wired their nine bedroom home with surveillance cameras and it was those cameras that captured images of the masked men breaking into their home. mark potters joins us from pensacola. mark, did police talk about what

the suspects took from the home? you don't often see a sheriff embracing a victim's family member at a press conference. >> reporter: well, this sheriff is very proud of the work that's been done here. he's also quite adept at dealing with the media, and he brought everybody together for that purpose, to announce that, indeed, they have seven people in custody, six adults and the 16-year-old who, by the way, will be tried as an adult on murder charges. everyone in this case will face murder charges, even the man who was arrested a couple days ago for just tampering with evidence. his charges will also be elevated. as to what was taken from the house, you said it, it was a safe. the prosecutor would only say that. he would not say how much money, if any, was in the safe, whether it was recovered or anything like that. still to be unanswered is why the billings had to die in what was described as predominantly a robbery. what was the confrontation like,

all of that we are told we will her in time, but right now we don't have those details. we know the parents were shot multiple times, a safe was taken. that's what they say was the purpose of a military-style operation that was long planned before these people went into the house to commit that crime. >> mark, did the sheriff say anymore about how the suspects knew one another? >> yeah. he said that four of them worked together at an auto detailing company. three had worked together in landscaping. there was some crossing of those groups as day laborers worked at one place and then the other, but the main point that he made was that -- what i was saying before, that this was an operation that was planned. two of these guys had military experience. one is currently in the air force. one was in the national guard. and some of them spent as much as a month training for this operation. they wore black clothing and masks. they trained, and they entered the house, came in two different vehicles. they entered from two different directions, and they planned

this operation. the one thing that they did not take care of were the surveillance cameras in the house. there was some talk that maybe someone should have taken care of those cameras and that that was not done, and ultimately that's how they were caught. the van, the red van that was used in the robbery was caught on tape, and when that van was discovered in a neighborhood nearby here in pensacola, the whole case turned around. that was the pivotal moment when they found that van. that led them to people, people started talking, and out they went, and now seven people are in custody. they're still looking for one another person who may have been involved in aiding and abetting, but they say they now that core group that went into the house and killed those people. >> incredible details coming out of the house. thank you very much. david, if these charges are true, these people were ambushed, and mark just said that the suspects planned this for a month as if it was a military operation. insane. >> yeah, it's insane. it's incredible, and it's just -- as we've been talking about, tamron, it's so sickening on so many levels.

it's just horrifying, but in any case, all right, tamron, we're going to take a break now from the news and go back to the sotomayor hearings because we're watching senator lindsey graham, republican from south carolina, who offered one of the more colorful statements yesterday during opening statements and suggested that this was essentially sotomayor's hearing to mess up, so let's listen to lindsey graham as he questions sotomayor now. >> you got judge sotomayor, who has come a long way and done a lot of things that every american should be proud of. you've got a judge who has been on a circuit court for a dozen years. some of the things trouble me, but generally speaking left of center but within the mainstream, an you have these speech that is just blow me away. don't become a speechwriter if this law thing doesn't work out because the speeches really throw a wrinkle into everything, and that's what we're trying to figure out. who are we getting here? you know, who are we getting as

a nation? now, legal realism, are you familiar with that term? >> i am. >> what does it mean for someone who may be watching the hearing? >> to me it means that you are guided in reaching decisions in law by the realism of the situati situation. it looks at the law -- >> find of touchy-feely stuff. >> not quite words i would use because there are many academics and judges who have talked about being legal realists. i don't apply that legal to myself at all. as i said, i look at law and precedent and discern its principles and apply it to the situation. >> so you would not be a disciple of the legal realism school? >> no. >> all right.

would you be considered a strict constructionist in your own mind? >> i don't use labels to describe what i do. there's been much discussion today about what various labels mean and don't mean. each person uses those labels and gives it their own sense -- >> when judge rehnquist says he was a strict constructionist did you know what he was talking about? >> i think i understood what he was referencing, but his use is not how i go about looking at -- >> what does strict constructionism mean to you? >> well, it means that you look at the constitution as its written or statutes as they are written, and you apply them exactly by the words. >> right. would you be an originalist? >> again, i don't use labels,

and -- >> what is an originalist? >> in my understanding, an originalist is someone who looks at what the founding fathers intended and what the situation confronting them was, and you use that to determine every situation presented -- not every, but most situations presented by the constitution. >> do you believe the constitution is a living, breathing, evolving document? >> the constitution is a document that is immutable in the sense that it's lasted 200 years. the constitution has not changed except by amendment. it is a process -- an amendment process that is set forth in the document. it doesn't live other than to be timeless by the expression of what it says.

what changes is society. what changes is what facts a judge may get presented. >> what's the best way for society to change, generally speaking? what's the most legitimate way for society to change? >> i don't know if i can use the words change. society changes because there's been new developments in technology, medicine, in society growing. >> do you think judges have changed society by some of the landmark decisions in the last 40 years? >> well, in the last few years -- >> 40 years. >> i'm sorry, you said -- >> 40, i'm sorry, 40. four zero. do you think roe v. wade changed american society? >> roe versus wade looked at the constitution and decided that

the constitution as applied to a claimed right applied. >> was there anything in the constitution that says a state legislator of the congress cannot regulate abortion or the definition of life in the first trimester? >> the holding of the court -- >> i'm asking the constitution, does the constitution as written prohibit a legislative body at the state or federal level from defining life or regulating the rights of the unborn or protecting the rights of the unborn in the first trimester? >> the constitution in the 14th amendment has -- >> i'm sorry. is there anything in the document written about abortion? >> the word abortion is not used in the constitution, but the constitution does have a broad

provision concerning a liberty provision under the due process -- >> and that gets us to the speeches. that broad provision of the constitution has taken us from no written prohibition protecting the unborn, no written statement that you can't voluntarily pray in school, and on and on and on and on, and that's what drives us here, quite frankly. that's my concern. and when we talk about balls and strikes, maybe that's not the right way to talk about it, but a lot of us feel that the best way to change society is to go to the ballot box, elect someone, and if they're not doing it right, get rid of them through the electoral process, and a lot of us are concerned from the left and the right that unelected judges are very quick

to change society in a way that's disturbing. can you understand how people may feel that way? >> certainly, sir. >> okay. now, let's talk about you. i like you, by the way, for whatever that matters. since i may vote for you, that ought to matter to you. one thing that stood out about your record is that when you look at the almanac of the federal judiciary, lawyers anonymously rate judges in terms of temperament, and here is what they said about you. she's a tearer on the bench. she's temperamenttemperamental, she seems angry. not very judicial. she abuses lawyers. she really lacks judicial temper

am. she behaves in an out of control manner. she makes inappropriate outbursts. she's nasty to lawyers. she will attack lawyers for making an argument she does not like. she can be a bit of a bully. when you look at the evaluation of the judges on the second circuit, you stand out like a sore thumb in terms of your temperament. what is your answer to these criticisms? >> i do ask tough questions at oral argument. >> are you the only one that asks tough questions in oral argument? >> no, not at all. i can only explain what i'm doing, which is when i ask lawyers tough questions, it's to give them an opportunity to explain their positions on both sides and to persuade me that

they're right. i do know that in the second circuit because we only give litigants ten minutes of oral argument each, that the processes in the second circuit are different than in most other circuits across the country. and that some lawyers do find that our court, which is not just me, but our court generally is described as a hot bench. it's a term of art lawyers use. it means that they're peppered with questions. lots of lawyers who are unfamiliar with the process in the second circuit find that tough bench difficult and challenging. >> if i may interject, judge, they find you difficult and challenging more than your colleagues. and the only reason i mention

this is it stands out. you know, there are many positive things about you, and these hearings are designed to talk about the good and the bad, and i never liked appearing before a judge that i thought was a bully. it's hard enough being a lawyer having your client there to begin with without the judge just beating you up for no good reason. do you think you have a temperament problem? >> no, sir. i can only talk about what i know about my relationship with the judges of my court and with the lawyers who appear regularly from our circuit, and i believe that my reputation is such that i ask the hard questions, but i do it evenly for both sides -- >> in fairness to you, there are plenty of statements in the record in support of you as a person that do not go down this

line, but i would just suggest to you for what it's worth, judge, as you go forward here, that these statements about you are striking. they're not about your colleagues. the ten-minute rule applies to everybody, and, you know, obviously you've accomplished a lot in your life, but maybe these hearings are a time for self-reflection. this is pretty tough stuff that you don't see from -- about other judges on the second circuit. let's talk about the wise latina comment yet again, and the only reason i want to talk about it yet again is that i think what you said -- let me just put my biases on the table here. one of the things that i constantly say when i talk about the war on terror is that one of the missing ingredients in the middle east is the rule of law that senator schumer talked about. that the hope for the mideast, iraq and afghanistan, is there will be a courtroom one day that if you find yourself in that

court, it will be about what you alleged did, not who you are. it won't be about whether you were a sunni, shia, kurd, but about what you did. that our legal system, even though we fail at times, will spread. i hope one day there will be more women serving in elected office and judicial offices in the middle east because i can tell you this from my point of view. one of the biggest problems in iraq and afghanistan is a mother's voice is seldom heard about the fate of her children, and if you wanted to change iraq, apply the rule of law and have more women involved in having a say about iraq, and i believe that about afghanistan, and i think that's true here. i think for a long time a lot of talented women were asked, can you type? and we're trying to get beyond that and improve as a nation.

so when it comes to the idea that we should consciously try to include more people in the legal process and the judicial process from different backgrounds, count me in. but your speeches don't really say that to me. along the lines of what senator kyl was saying, they kind of represent the idea there's a day coming when there will be more of us, women and minorities, and we're going to change the law, and what i hope we'll take away from this hearing is there need to be more women and minorities in the law to make a better america, and the law needs to be there for all of us if and when we need it, and the one thing that i have trade to impress won you through jokes and being

serious is the consequences of these words in the world in which we live in. you know, we're talking about putting you on the supreme court and judging your fellow citizens, and one of the things that i need to be assured of is that you understand the world as it pretty much really is, and we got a long way to go in this country and i can't find the quote, but i'll find it here in a moment. the wise latina quote. do you remember it? >> yes. >> okay. say it to me. can you recite it from memory? i got it. all right. i would hope that a wise latina woman with the richness of her

experience would more often than not reach a better conclusion than a white male. and the only reason i keep talking about this is that i'm in politics and you got to watch what you say because, one, you don't want to offend people you're trying to represent. but do you understand, ma'am, that if i had said anything like that and my reasoning was that i'm trying to inspire somebody, they would have had my head. do you understand that? >> i do understand how those words could be taken that way, particularly if read in isolation. >> well, i don't know how else you could take that. lindsey graham said that i will make a better senator than "x" because of my experience as a

caucasian male, makes me better able to represent the people of south carolina, and my opponent was a minority. it would make national news, and it should. having said that, i am not going to judge you by that one statement. i just hope you'll appreciate the world in which we live in, that you can say those things meaning to inspire somebody and still have a chance to get on the supreme court. others could not remotely come close to that statement and survive. whether that's right or wrong, i think that's a fact. does that make sense to you? >> it does, and i would hope that we've come in america to

the place where we can look at a statement that could be misunderstood and consider it in the context of the person's life. >> you know what? if that comes of this hearing, the hearing has been worth it all. that some people deserve a second chance when they misspeak, and you would look at the entire life story to determine whether this is an aberration or just a reflection of your real soul. if that comes from this hearing, then we've probably done the country some good. now, let's talk about the times in which we live in. you're from new york. have you grown up in new york all your life? >> my entire life. >> what did september 11th, 2001, mean to you? >> it was the most horrific experience of my personal life

and the most horrific experience in imagining the pain of the families of victims of that tragedy. >> do you know anything about the group that planned this attack, who they are and what they believe? have you read anything about them? >> i have followed the newspaper accounts. i have read some books in the area, so i believe i have an understanding of that. >> what would a woman's life be in their world if they can control a government or a part of the world? what do they have in store for women? >> i understand that some of them have indicated that women are not equal to men. >> i think that's a very charitable statement. do you believe that we're at

war? >> we are, sir. we have tens and thousands of soldiers in the battlefields of afghanistan and iraq. we are at war. >> are you familiar with military law much at all? and if you're not, that's okay. >> no, no, no. i'm thinking because i've never practiced in the area. i've only read the supreme court decisions in this area. >> right. >> i have obviously examined by referencing cases some of the procedures involved in military law, but i'm not personally familiar with military law. i haven't participated -- >> i understand. from what you read and what you understand about the enemy that this country faces, do you believe there are people out there right now plotting our

destruction? >> given the announcements of certain groups and the messages that have been sent with videotapes, et cetera, announcing that intent, the answer would be based on that yes. >> under the law of armed conflict, and this is where i may differ a bit with my colleagues, it is an international concept, the law of armed conflict. under the law of armed conflict, do you agree with the following statement -- that if a person is detained who is properly identified through accepted legal procedures under the law of armed conflict as a part of the enemy force, there is no requirement based on a length of time that they be returned to the battle or released.

in other words, if you capture a member of the enemy force, is it your understanding of the law that you have to at some period of time let them go back to the fight? >> it's difficult to answer that question in the abstract for the reason that i indicated later. i have not been a student of the law of war other than to -- >> we'll have another round. i know you will have a lot of things to do, but try to look at that. look at that general legal concept, and the legal concept i'm espousing is that under the law of war, article five specifically of the geneva convention requires a detaining authority to allow an impartial decisionmaker to determine the question of status, whether or not you're a member of the enemy force, and see if i'm right

about the law that if that determination is properly had, there is no requirement under the law of armed conflict to release a member of the enemy force that still presents a threat. i would like you to look at that. thank you. now, let's talk about your time as a lawyer. the puerto rican legal defense fund, is that right? is that the name of the organization? >> it was then. i think -- i know it has changed names recently. >> okay. how long were you a member of that organization? >> nearly 12 years. >> okay. >> if not 12 years. >> right. during that time you were involved in litigation matters, is that correct? >> the fund was involved in litigations. i was a board member of the fund. >> okay. are you familiar with the position that the fund took regarding taxpayer funded abortion? the brief they filed. >> no, i never reviewed those

briefs. >> well, in their briefs they argued, and i will submit the quotes to you, that if you deny a low-income woman medicaid funding, taxpayer funds to have an abortion, if you deny her that, that's a form of slavery. and i can get the quotes. do you agree with that? >> i wasn't aware of what was said in those briefs. perhaps it might be helpful if i explain what the function of a board member is and what the function of the staff would be in an organization like the fund. >> okay. >> in a small organization as the puerto rican legal defense fund was back then, it wasn't the size of other legal defense funds like the naacp legal defense fund or the

mexican-american legal defense fund, which are organizations that undertook very similar work. in an organization like ours, a board member's main responsibility is to fund raise, and i'm sure a review of the board meetings would show that's what we spent most of our time on. to the extent that we looked at the organization's legal work, it was to ensure that it was consistent with the broad mission statement of the fund -- >> is the mission statement of the fund to include taxpayer-funded abortion? >> our -- >> was that one of the goals? >> our mission statement was broad, like the constitution. >> yeah. >> which meant that its focus was on promoting the equal

opportunities of hispanics in the united states. >> well, judge, i've got -- and i'll share them with you and we'll talk about this more -- a host of briefs for a 12-year period where the fund is advocating to the state court and to the federal court that to deny a woman taxpayer funds, low-income woman taxpayer assistance in having an abortion is a form of slavery. it's an unspeakable cruelty to the life and health of a poor woman. was it or was it not the position of the fund to advocate taxpayer-funded abortions for low income women? >> i wasn't and i didn't as a board member review those briefs. our lawyers were charged -- >> would it bother you if that's what they did? >> well, i know that the fund during the years i was there was involved in public health issues

as it affected the latino community. >> is abortion a public health issue? >> well, it was certainly viewed that way generally by a number of civil rights organizations at the time. >> do you personally view it that way? >> it wasn't a question of whether i personally viewed it that way or not. the issue was whether the law was settled on what issues the fund was advocating on behalf of the community it represented. >> well -- i'm sorry. go ahead. >> and so the question would become was there a good-faith basis for whatever arguments they were making as the funds lawyers were lawyers. they had an ethical obligation -- >> and quite frankly that's, you know -- lawyers are lawyers, and people who have causes that they

believe in have every right to pursue those causes, and the fund when you look -- you may have been a board member, but i'm here to tell you that file briefs constantly for the idea that taxpayer-funded abortion was necessary, and to deny it would be a form of slavery, challenged parental consent as being cruel, and i can go down a list of issue that is the fund got involved in that the death penalty should be stricken because it has -- it's a form of racial discrimination. what's your view of the death penalty in terms of personally? >> the issue for me with respect to the death penalty is that the supreme court since gregg has determined that the death penalty is constitutional under

certain situations. >> right. >> i have rejected challenges to the federal law and its application in the one case i handled as a district court judge, but it's a reflection of what my views are -- >> as an advocate, did you challenge the death penalty as being an inappropriate punishment because of the affect it has on race? >> i never litigated a death penalty case personally. the fund -- >> did you ever sign a memorandum saying that? >> i signed the memorandum for the board to take under consideration what position on behalf of the latino community the fund should take on new york state reinstating the death penalty in the state. it's hard to remember because so much time has passed in the 30 --

>> we'll give you a chance to look at some of the things i'm talking about because i want you to be aware of what i'm talking about. let me ask you this, we've got 30 seconds left. if a lawyer on the other side filed a brief in support of the idea that abortion is the unnecessary and unlawful taking of an innocent life and public money should never be used for such a heinous purpose, would that disqualify them in your opinion from being a judge? >> an advocate advocates on behalf of the client they have, and so that's a different situation than how a judge has acted in the cases before him or her. >> okay. and the only reason i mention this, judge, is that the positions you took or this fund took i think, like the speeches, tell us some things and we'll have a chance to talk more about

your full life, but i appreciate the opportunity to talk with you. >> thank you, sir. >> thank you very much, senator graham. senator durbin? >> thank you, mr. chairman. judge, good to see you again. >> hello, senator. thank you. and i thank you again for letting me use your conference room when i was as hobbled as i was yo was. >> there we heard one of the most interesting exchanges of the day. not only exploring the issue of the death penalty and abortion but started it with something that you were talking about yesterday, one of the most dangerous political minefields in this might have been the whole way lindsey graham apromped the temperament issue. the idea that her temperament is not fit to be on the court. a number of critics have written to that extent. the way lindsey graham did that by suggesting do you think you have a temperament problem putting her on the spot responding no, i suggest the way

people view this might be pretty critical. >> the issue of temperment came up with anonymous sources. i believe it was in the "washington post" and you had many people who were going on the record, friends and co-workers, who say she does not have a temperament issue. but lets bring in chris cillizza to talk about this. what do you make of senator graham's comments, bringing up anonymous sources referring to this judge's temperament? >> you know, i think republicans, tamron, have been surprisingly aggressive actually in their questioning. i think jeff sessions, the ranking member from alabama, set the tone yesterday and then again today. very pointedly questioning sonia sotomayor. i think that you saw lindsey graham in his own way -- i think if you polled the judiciary committee, senator graham would probably win in terms of the best lawyer litigator. he's someone -- >> i hate to interrupt you but

it's one thing to challenge her on the record, on that speech. what did you mean by wise latina. it is another, isn't it, to ask her about temperament. what do you mean by that? these are anonymous sources. people are reading this as if -- and they have a right to do so since these senators are reading into her comments, one might read into this that he's talking about her being a hot-blooded person or a woman who can't control her emotions. >> first of all, i'm not going to speak for senator graham since i don't know, but second of all, yes, you're right, tamron. i think it's always dangerous ground to get into when you veer from professional criticism to what could certainly be perceived as personal criticism. i think you're always on dangerous ground when that happens on politics. it's why politicians say we try to keep it aboveboard, we talk about the issues. i think that door is opened when you start talking about the temperment, b temperment, but not knowing what was in senator graham's mind i can't guess.

>> chris cillizza, since we've talked about it, i would suggest the door has been opened. let's go to mike viqueira who is plugged in for what the strategy has been for the republicans and democrats on the committee. mike, to you, this whole issue of whether the republicans thought they were walking through a political minefield based on the way lindsey graham asked those initial sets of questions of judge sotomayor, it didn't seem like that is much of a concern to him. is there much of a concern that republicans could harm themselves with these hearings in terms of not only latino voters but also women voters? >> reporter: first of all, i thought that was vintage lindsey graham. he's a guy that marches to the beat of his own drummer. he's an attorney, a lawyer in the military in the reserve. i think he's achieved a rank of colonel at this point, and it seems to me he was coming at her -- i don't want to say attacking her, but at least probing her from so many different directions in that 30 minutes that he had. i thought it was very interesting, and frankly a little bit surprising in the manner in which he approached b