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>> this is when we talk about what we learned today. what did you learn willie? >> i learned some of the viewers are mean attacking a newborn. >> a babe. for heaven's sakes. >> yeah, thrashing poor w. >> i will wake up earlier at 5:30, and literally way too early. >> mike? >> i learned that a pack of cigarettes is more deadly than a round from an ak-47. all of you stop mocking me, because i am right about this. that's the side thing, you go for a joke when i care about the health of everybody! you claim to be saving me from my self. >> and obesity, and --

>> stop looking at me that way. >> i have to deal with this on the radio show for the next couple hours. and willie, if it's way too early, and mika is way too aggravated, and if we -- after our show is up and we pause to a crack addict, what time is it? >> dylan ratigan takes over. welcome to the "morning meeting." another abbreviated edition getting under way. live pictures right now. we will call it a short meeting because it is. just a half hour, judge sotomayor will be back in the hot seat. day three for her on the confirmation front. she is about, we believe, to take a position on the nation's highest courts. republicans have been grilling her specifically about concerns that she will bring a liberal agenda and a personal experience

to the bench. sotomayor has been using her 17-year record to rebut the claims. is it too much of record and not enough on the rule of law? "morning meeting" starts right now. all right. good morning to you. get to know your favorite new supreme court justice continue this week. another round of questions for the supreme court nominee, sonia sotomayor. republicans are skeptical about the ability tea for her to be fair and impartial. zeroing in on the wise latino comment. and they are showing her as a modest person. and pete williams continued to monitor what happened today. the wise latino scandal about to

erupt on us. where are we right now? >> the hearings will continue this morning. not all of the senators have had a chance to question her. we will hear some questions from senator franken, and senator specter, who is used to going earlier in the proceedings. when he was a republican he had a great deal of more seniority, and he had to wait his turn. and we will hear about whether congress has the ability to make laws. and this is a sore point for him. and there is the closed door session where the opportunity will have another round of questions. and leahy hopes they will not use all of the time doing this. >> come on, savannah, we will use all of the time. >> okay, pete?

>> yeah, i don't think that we will hear about the wise latino comment any more. >> i want to state up front without doubt that i do not believe that any ethnic, racial or gender group has an advantage in sound judging. >> one of the things that she talked about yesterday is that she does not agree with what president obama says a judge ought to have. when the president was a senator, he voted against john roberts saying 95% of cases are easy to decide based on the law of the constitution, and the extra 5% require something more. here is an exchange she had from senator john kyl of arizona. >> judges can't rely on what is in their heart. they don't determine the law. congress makes the laws.

the job of a judge is to apply the law. and so it's not the heart that compelses conclusions in cases, it's the law. >> what the senator asked her was did she agree with president obama's statement that you can take the extra 26 mile of the marathon only if you have heart, and she said she did not agree with that, dylan. >> and the issue that she brings up is an interesting one. i want to bring anita into the conversation. that 5% of the rulings where the supreme court feels like they do have to make law, nina. what is your sense of the trend that has been more vague legislation out of congress and more need to legislate from the bench as a result. are we getting more political

exspe exspeedian see in congress or is that my imagination? >> i think that's your own imagination. and congress has not made broad new legislative enactments. that has changed with the obama administration, and i think will move more. but there is not more wiggle room in the supreme court now than there was before. over the course of the history, and certainly over the course of the modern times, we have seen lots of ability for the wiggle room, and the question is do you defer to congress and how much do you defer to congress and the federal agent? >> what do you think from what you have seen so far from sotomayor in the hearings? >> well, it's interesting. she portrayed herself, and i

think it's fair to say it's an accurate portrayal, as a cue to the line circuit court judge. she is not a big scholar with big ideas who sort of advanced new approaches to the law. that saved her in the hearings sometimes. every time be in asked her to explain something she did on the bench, she says she was following precedent. >> and how some have been dealt with in congress, and afterwards, who is she most like from recent supreme court justices or historically, and who is she most different from? >> well, she is obviously different from most of them, because she is hispanic and female. that's for starters. and she is just like justice

alito during the confirmation hearings. when she is asked a question, she states what the law has been, and then gives you little as what she might do as a supreme court justice. and if somebody presses her on it, she says that might come before me so i cannot tell you. >> is there any aspect of what has happened up to this point and it may happen in the balance of the week where it changes the political rhetoric or positioning of the senators or has anybody disclosing or adapting new positions in public as a result of either the reverse racism or other aspects? pete, i will start with you. >> what the republicans are eager to do is show they are asking the hard questions. their audience is an audience of one. and they say we understand she will be confirmed, but we have very high standards, and the next nominee won't be a hispanic

woman, and we will give that nominee a harder time, so don't send somebody who a liberal activist. and that's the message they are trying to send. and nothing in the hearings indicate anything that she is in trouble. >> do you agree with that? >> i agree with that. you could tell it in the questions, when they did not get much out of the decisions, they moved to her speeches, and as pete said, president obama's speeches. >> thank you. contessa, what else is going on? >> other issues going on today. president obama is making another big push on health care reform. he will speak from the white house rose garden after 1:00 eastern time. the committee is launching a tv ad featuring private citizens pushing the agenda. it will air on national networks and in key states. >> my husband's job covered us until he was laid off. >> it's time. >> it's time. >> it's time.

>> it's time for health care reform. >> house democratic leaders are pledging to meet the president's goal of passing the health care reform bill before the august break. some are skeptical now. it may be done but not the break. $1.5 trillion now. and it seems like every time we talk about the bill, the costs go up. we have a gallop poll that shows more than half of americans do favor a major health care reform bill passing this year. >> and i think that's understandable. the question becomes what are the reforms and how are they implemented. and this one, i have another chance to read the totality of it, but it's largely based on funding from taxing high income people to pay for the uninsured. >> but there is pushback on that. that's what the house wants. the senate democrats have come out and said that they are not so sure that that is the way to fund this. >> is there any talk of reform on the insurance side?

because insurance controls so much of the money. private insurance. is there talk about rationing? >> you heard dr. nancy snyderman saying that has become an evil word, and they don't want to talk about rationing. >> yeah. >> and if you are going to have a comprehensive health care system that takes care of everybody that rationing will have to happen. you are not going to be able to walk in, and because you have an ache, go have a cat scan. >> and the interesting thing is if we go with the public option, they will be the people saying no, and you will say i want this, that, and the other thing, and the administration for the public options, they will say no. >> the president promised they will not do the doctor's job, tell people how and when they will be treated. >> can i use the super life extender under the obama plan? >> i don't know the answer to that, dylan. but i can work on that. >> i know. you get my point. >> yeah, i do.

crystal clear. breaking news we are following here on msnbc, a passenger plane crashed in northwestern iran and killed all 168 people onboard. state television and iran reports the flight was traveling from tehran to a capital city. it crashed 16 minutes after takeoff. and two of the suspects accused of killing a prominent florida couple are expected in court today. they are asking the grand jury to indictment them on the murder charges of the billings. the seven men plotted in great detail. they got in and out in fewer than 10 minutes. >> it was like a military-style campaign. one is a 16-year-old. one is in the air force special operations. >> that was probably the guy in charge. >> they don't know how he knows the other guys. >> nine of the couple's children when the robbery happened and the murders happened.

investigators are looking for more medical records in the hunt for the cause of michael jackson's death. and hthey are treating his deat like a homicide. they are focussing on conrad murray, the guy that was reportedly trying to give him cpr on a bed, which is a no no. he did not call for a half hour or so. and katherine jackson, and debbie rowe, the biological mother trying to work out deal. one report suggesting rowe would get $4 million to go away. you open up your credit card bill, and you see a charge of

quadrillions. i have never said that word before. and she spent that at wolfgang puck's restaurant. two times the national debt. >> yeah, and that is a lot. >> do you think the new consumer protection agency will take care of this thing. and visa said it was caused by a computer glitch. >> do you know if you spent a million dollars a day since the birth of jesus christ, you would not have spend a trillion dollars by today. and quadrillion, i cannot even imagine. >> yeah. and there is a little bit

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you have heard all of these charges and counter charges of a wise latina and on and on -- >> the comment you made. >> one of them was not wise. >> the hearings are continuing today and throughout the balance of the week.

and they are getting into the politics of the comments instead of her rulings. instead of having made focus on her rulings, it's more on rhetoric. and joining the conversation, still with us, nina and contessa is hear as well. i am a hair yay hungarian. i am chatty and carry on with people a lot. was not judge societomayonia so making a comment where they make a comment about their family. i feel like it's a comment, and maybe i am forgiving her too quickly. and i feel like that's a comment made in conversation by almost everybody at one point or another in their lives.

not that it's appropriate, necessarily, but what is your sense of the context of that comment and is it absurd that we are talking about it? >> i think it's absurd. what she was doing is giving a pep talk to law students in berkeley law in california. unfortunately, have you 50% of latinos dropping out of high school, if you make it to college, let alone to become a lawyer, that's literally 3% of the population. she was giving them a pep talk. if you read the rest of her statement, she says because i know that i am a wise latina, i barred that self understanding when it comes to looking at judicial law. and i am making sure i am aware of how i view things, and that's what she has been trying to say. i think the republicans have a real difficult time not understanding that. >> i have to back out my hai

hairiness to figure that out. >> this was not something that she just popped off once. she used this formulation, as many people do, she had a set speech that she gave before many groups. and she set a variation on this theme many times. it was not one off-hand comment that she made. i think she dealt with it very effectively, but in all due credit to the republicans, she did not say it just once. >> if you were to find the least politicised most honest concern that you have been able to identify within the republicans about the use of this, and it would go to any sort of bias with what everybody's background is on the bench, i feel like if we go back and forth, pete, and on the one hand your experience makes you a great judge, and then you say you can't let your

experience affect the way you judge? >> well, not serious question in the law about to what extent a person's own individual background should enter in. and there has been a serious discussion about that. nina? >> i think the real concern by republicans is that she will be a liberal justice, or a more liberal justice than they want to see on the court. and that's certainly true. as senator graham said, republicans did not win the election, and elections have consequences. and it's the same position the democrats found themselves in when president bush had two supreme court adjustments. and presidents generally don't pick people who are not qualified. that's not the question. and the next question is, do i like what you think? and these issues are becoming

more and more politicised, at least from the outside. and that is the underlying question that you see the opposition, the critics trying to find anything that they can hang their hats on. and you can tell from a lot of things that she said that she will be more liberal than republicans would like. >> what we are also seeing is some of the republicans who are doing the questioning, that they are bringing up her wise latina comment, and turning it to question her ruling. and senator sessions talking about the fact that she ruled opposite of another judge on the panel who happened to be puerto rican. let me play it. >> you voted to stay with the decision of the circuit, and, in fact, your vote was the key vote. had you voted with judge

kabronish, who is puerto rican, and if you would have voted with him you would have won the case? >> i think they keep coming up the name of astrauda. this is not against the hispanic community. we like him and -- >> yeah, and we need their vote. >> yeah, absolutely. >> do they know who he is? >> they know it's a hispanic surname, and that should be good enough. >> wasn't he one of the cops on "chips." >> that was eraieric estrada. >> okay. we will get under way with the

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to get a free trial offer of once-a-month actonel visit actonel.com. and ask your doctor how once-a-month-actonel can help you reverse bone loss. welcome back. the hearing about to get under way, nina. what should we be thinking here? >> i think today some republicans will ask her more about her role as a board member in the puerto rican legal defense fund. the fund chose some very liberal positions. the board was not supposed to intervene in litigation for fear that there would be a conflict of interest between the firm business of individual board members and because of attorney/client privilege. but they are going to press that, i would think. in this round and in follow-up rounds, and you heard that from lindsay graham yesterday. we will head to chris

matthews in washington, d.c. he will take care of you for the balance of the day. and this is, again, democracy at work. if only everything in the government is transparent as the process we are getting to watch together this week. it's day three of the confirmation hearings for judge sonia sotomayor, and they are about to get started with senators resuming their one-on-one questioning about the supreme court nominee. welcome to the special live coverage of the senate hearings. a calm judge, sonia sotomayor, spent yesterday fending off attempts of the republicans trying to suggest that it was her hot temperament that they were worried about. and she used the word bad, about the words that she used. and that's strange in a adult

conversation. and the question was were they gutted by facts or empathy or ethnicity. and they were very close to the bone yesterday. and pete, if you had to do a confirmation scorecard, because there damage done to this nominee's prospects? >> no. she dealt with the biggest questions. she was ready for the wise latina comment. she was ready for it, and she finally said it was an attempt and play on words, something that sandra day o'connor said fell flat, and she did not defend it. she spoke about the controversial court ruling. and perhaps not to the satisfaction of the republicans on the committee, because she said i am bound by supreme court precedent. in all of the questions about her rulings is they were in the legal mainstream and consistent with what other federal courts of appeal have done.

if you go by the lindsay graham test, there has been no meltdown here. >> that's true. thank you, pete. you will be with us here all day. and let's bring in the panelists sitting next to me. mark whitaker, the nbc borough chief here, and andrea mitchell. now, mark, after a couple minutes much trying not to give in and say okay you are right, i blew it, do you think it was strategic? >> i think it was the way they rehearsed it with her. and when pressed, she will have to grant that it was not wise, and it fell flat and was a bad idea. >> so flat. such an unusual term. bad parlance. >> it was a matter of speech. they will still try to get at it

in follow-up questions, is what is her thinking? i think she can get by this. >> this is the third woman in history to be on the supreme court, and to say it doesn't matter to her, and say it's inconsequenceal that she ended up sweating to get where she got, and that's her selling point, and they are saying throw away your unique selling point and say it's irrelevant. >> well, that selling point is there. she does not want to get sucked into a larger debate of affirmative action. and they say don't take the bait, and that's what she is doing. >> yeah, don't admit the truth. >> judge sotomayor, after you answered questions from 11 senators, frankly i feel that you demonstrated your commitment to the fair and impartial

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

and we will go to a former member of the texas supreme court, and former attorney general. and senator, the floor is yours. >> thank you, mr. chairman. good morning, judge. >> good morning, senator. it's good to see you again. >> good to see you. >> i recall when we met in my office, you told me how much you enjoy the back and fourth that lawyers and judges do, and i appreciate the good humor and attitude that you have brought to this. and i very much appreciate your willingness to serve on the highest court in the land. i am afraid in the past the hearings got down right nasty and contentious, people are dissueded from the willingness to suerve, and that's a great challenge.

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

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

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

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

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

considers when he is deciding discrimination matters. i don't think he meant or justice o'connor meant that personal experiences compel results in any way. i think life experiences generally, whether it's that i am a latina or was a state prosecutor or have been a commercial litigator or been a trial judge and an appellant judge, that the mixture of all of those things, help me to listen and understand. but we rely on the law to command the results in the case. so when one talks about life experiences, and even in the context of my speech, my message was different than i understand my words have been understood by some.

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

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

repeatedally is to participate. >> let me ask about another speech that you gave in 1996, where you wrote what appears to be an endorsement of the idea that judges should change the law. you wrote "change, sometimes radical change, can and does occur in a legal system that serves a society that social policy itself changes." you noted with apparent approval, they develop a novel approach to a specific set of facts or framework that pushes the law in a different direction. closed quote. can you explain what you meant by those words? >> the title of that speech was "returning majesty to the law." as i communicated in my opening remarks.

i am passionate about the law and the rule of law. the speech was given in the context of talking to young lawyers and saying don't participate in the cynicism that people express about our legal system. >> i did not mean to interrupt you. >> and i was encouraging them not to fall into the trap of calling decisions that the public disagrees with as they sometimes do, activism or using other labels, but try to be more engaged in explaining the law and the process of law to the public. and in the context of the words that you quoted to me, i pointed out to them explisidally.

and so what was settled as law previously will change because congress changes things. and i spoke about the fact that society ae sauevolves in terms technology and other developmen developments, and so the law is being applied to a new set of facts. and in terms of talking about different approaches in law, i was talking about the fact that there are some cases that are viewed as radical, and i think that i mentioned just one case, brown versus board of education, and explaining and encouraging them to explain that process, too. and there are new directions in the law in terms of the court. the court -- the supreme court is often looking at its precedents, and considering in

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

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

we look at how often the court has affirmed the prior understanding of how to approach an issue. but in those senses, changes by judges in the popular perception that we are changing the law. >> in another speech in 1996, you celebrated the uncertainty of the law. you wrote that the law is always, and i quote, a necessary state of flex, closed quote. you wrote that the law judges declare is not quote a d definitive capital l law that many would like to think exist, closed quote, and quote, the public fails to appreciate the indefiniteness in the law. can you explain those statements? why do you think indefinitenness

is so for? >> they believe that precedents don't clearly answer the fact they are present in their case. that creates uncertainty. that's why people bring cases. they say the law says this, but i am entitled to that. i have this set of facts that entitle me to relief under the law. and that's the entire process of law. if law was always clear, we wouldn't have judges. it's because there is in

definateness. to insure that judges are applying the law to the new facts, and they are interpreting that law with congress' intent, and being informed by what precedents say about the law and congress' intent in applying it to the new facts. but that's what the role of the court is. and obviously the public is going to become impatient with that if they don't understand that process. and i am encouraging lawyers to do more work in explaining the system, in explaining what we are doing as courts. >> in a 2001 speech at berkeley, you wrote "weather born from experience or cultural differences, a possibility that

i have less, our general andced our genre will make a a difference in our judging, closed quote. a difference is physiological if it relates to the mechanical, physical or biochemical functions of the body, as i understand the word. what do you mean by that? >> i was talking just about that. there are, in the law, there have been upheld in certain situations that certain job positions have a requirement for a certain amount of strength or other characteristics that maybe a person who fits that characteristics and have that job, but there are difference that may affect a particular type of work. we do that all the time. >> we're talking about -- >> -- a pilot who has good eyesight. >> we're not talking about pilots, we're talking about judges, right?

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

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

possibility that it could affect the process of judging. >> as you can tell, i'm struggling a little bit to understand how your statement about physiological differences could affect the outcome or affect judging and your stated commitment to fidelity to the law as being your sol standard and how any litigant can know where that will end. but let me ask you, on another t topic, there was a "the washington post" editorial may 21st, 2009 that starts out saying the white house scrambled yesterday to suede worries from liberal groups about judge sotomayor's scant on rights. it goes on to say the white house press secretary said the president did not ask sotomayor

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

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

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

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

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

what brought this case to judge kabranas' attention. i can say the following, however. when parties are dissatisfied with a panel decision, they can file a petition for rehearing en banc. in fact, that's what happened in the ricci case. those briefs are routinely reviewed by judges and so publishing by summary order or addressing an issue by summary order or by published opinion doesn't tie a parties' claims from other judges. they get the petitions for rehearing. similarly, parties, when they are dissatisfied with what a circuit has done, file petitions for certiorari which is a request for the supreme court to review a case, and so the court

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

78-page decision by the district court. it adequately explained the questions that the supreme court addressed and reviewed and so to the extent that a particular panel considers that an issue has been decided by existing precedence, that's a question that the court above can obles revisit as it did in ricci where it can look at it and say we understand what the circuit did and understand what existing law is, but we should be looking at this question in a new way. that's the job of the supreme court. >> even the district court admitted that a district court could rationally infer that city officials worked yind the scenes to sabotage the promotional examinations because they knew that the -- that knew that were the exam certified, the mayor would incur the wrath of reverend bois' kimber and you

decided based on their claim of potential impact liability that there was no recourse that the city was justified in disregarding the exams and, thus, denying these firefighters, many of whom suffered hardship in order to study and to prepare for these examinations and were successful, only to see that hard work and effort disregarded and not even acknowledged in the court's opinion and, ultimately, as you know, the supreme court said that you just can't claim impact liability as a city and deny someone a promotion based on the color of their skin. there has to be a strong basis in evidence but you didn't look to see whether there was a basis in evidence to the city's claim. your summary opinion unpublished

summary order didn't even discuss that. don't you think that these firefighters and other litigants deserve a more detailed analysis of their claims and an explanation for why you ultimately denied their claim? >> as you know the court's opinion recognize, as i do in the hardship that the firefighters experienced. that's not been nay-sayed by anyone. the issue before the court was a different one and the one that the district court addressed was what decision -- the decision-makers made, not what people behind the scenes wanted the decision-makers to make. but what they were considering. and what they were considering was the state of the law at the time and in an attempt to imply with what they believed the law said and what the panel

recognized is what the second circuit precedent said, that they made a choice under that existing law. the supreme court, in its decision, set a new standard by which an employer, and lower courts should review what the employer is doing -- by him the substantial evidence test. that test was not discussed with the panel. it wasn't part of the arguments below. that was a decision by the court, borrowing from other areas of the law and saying we think this would work better in this situation. >> my time is up. thank you. >> thank you. thank you very much. i have a note in the record, we'll put in the record a letter of support for judge sotomayor's nomination -- >> well, here we are on the third day of the confirmation hearings and it seems like a couple of issues persist. andrea mitchell and mark

whitaker, tell me why you think that senator cornyn who is also chair of the republican campaign committee responsible for getting senators elected from his party next time, has persisted in going to this question of the wise latina and her possible advantages in a court-decision making? >> you may have answered your and question, chris. there is politics, shocking as it may seem, in all of this. look. i don't think so far, at least, that they have been able to rattle her on her decisions, on her 17-year record as a judge. what is most vulnerable are these comments and she has still refused recant them fully in her response to senator cornyn today, she said she stands by her words, but regrets the way the words were construed or understood by people. so that -- >> it's one of those cases where you say, i'm sorry if i offended anyone. in other words -- to get me wrong? >> mistakes were made. >> in other words, i was right, they were wrong is the way they raised me.

serious. they are looking for a full recantation of her sentiment which is i deserve a shot in this world, maybe a special shot because of the way i grew up, because it was so difficult and so wisdom-creating if you will. >> i'm not sure she is asking for a special shot. she is saying her background, goes into making you up, that you're proud of that -- >> puts you into a superior position which is what she said in that statement, does it put you in a superior position as a judge is what she claims as her main argument. is that something she is willing to defend? >> she's not willing to defend that it puts you in a superior position, although she did say that and senator cornyn very calmly and quietly and without being offensive went directly at that. unlike some of the questions yesterday who were rather patronizing and might have been interpreted as being offensive. >> mark, is he looking for a reason to vote against her?

you don't know, do you? >> well, i suspect he is going to vote against her and i think at the end of the day, she's only likely to get a few republican votes, if that, out of this committee. but the interesting thing about the speech is it's really, this whole controversy is about one word, which is better. if she has said a wise latina woman is capable of reaching as good or as wise a conclusion, we wouldn't be having this debate. that's all she has to say. i think it's interesting that she hasn't said that. they have to war game this during the prep session. so my guess is she wants to suggest that perhaps she misspoke a little bit and put it in context, but she doesn't want to grovel and they don't want the headlines to be that she completely caved on that statement. >> having said it was bad, what i said yesterday, she is holding on to her value argument, which is i do bring something special

to the court. maybe not superior, but something unique and special. >> and, remember, there are a lot of people -- >> in other words, why am i being considered here? >> also a lot of people in this country who are very excited about her nomination. hispanics, women, and so forth. and i think that the white house is very conscious that she also don't want to lose those people and diminish that sense of excitement. >> i figure spanish pride parade i mean that seriously in this country. people are watching this with pride she has been able to get this far and her story about how she sweated at the kitchen table with her mother going for a registered nurse certificate and alongside that impressive brother of hers, one, who is a strong guy sitting next to her, i think it is a powerful story. i think she doesn't want to recant who she is. norah o'donnell? >> you talk about the administration, the white house, they want people to focus on her record, not on her rhetoric but a lot of what is going on in the

courtroom, too, is about what you see. what we see in the hart senate office building, this hearing room today, is about a dozen new haven firefighters. they, in fact, are right behind me just in about the second and third row sitting behind judge sotomayor and one of those firefighters, of course, frank ricci, of course, who is well-known and is going to testify later this week. of course, people like newt gingrich had used that decision to say that sotomayor was a reverse racist. we saw cornyn, tough questioning of sotomayor. they are part of this landscape here in the hart senate office building. almost a dozen firefighters listening in today. pretty interesting. one other note because i've been doing some reporter this morning, chris, and i've been essentially surveying all of the republican members on this committee. of course, there are seven republicans here. the chairman of this committee, patrick leahy, the democrat, indicated yesterday, will not be a party line vote out of this

committee when they send it to the full senate floor for a vote. we heard lindsey graham. he told me personally he may vote for her. i've been talking to some of the other republican members. senator hatch, he is leaning toward, usually wants to give the president's nominee the benefit of the doubt. but, of course, has not made up his mind yet. senator cornyn, who we just heard from, it's still a possibility, according to advisers close to him that he could, in fact, vote for judge sotomayor. i'm waiting to hear from some of the other senators, too. . i think it's worth noting even though tough questioning is going on, they may not want to send this out with a tough party line vote. we may see a couple of these republicans, perhaps more, vote for her. chris? >> thank you much, norah o'donnell. i'm watching grassley as well. he is known to be a very strong pro life senator and i wonder whether her -- even her fairly predictable statement that roe v wade is settled law might jar him from voting. >> and, in fact, some of the liberals are concerned that she

has not been forthcoming enough on abortion and plan to ask her about it privately. the white house met yesterday with people on both sides of the abortion debate to try to reassure them, even they didn't ask her directly they were pretty sure how she would come down on abortion. >> probably like the way that george bush never asked rumsfeld if he supported the war. >> not a big mystery there. >> we'll be right back with more coverage as we try to read through what we're really hearing here. in fact, a lot is going on here politically as well with the argument about affirmative action and abortion rights. the whole enchilada is on display here in this important set of hearings. we'll be right back.

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hearings. ben cardin of maryland is asking the questions. he is the guy who beat michael steele for his seat in the senate. >> considering an issue, the majority upheld a state regulation barring a group of people from voting. i dissented on a very short opinion, pun one paragraph saying, the words are no state may impose -- i'm i'm paraphrasing it now. i'm not trying to read the statute. no condition or restriction on voting denies or bridges the vote -- the right to vote on the basis of race. i noted, that given the procedural posture of that case, that. had alleged that that is exactly what the state was doing. and i said, that's the allegation on the complaint.

that's what a judge has to accept on the face of the complaint. we got to give him a chance to prove that and that, to me, was the end of the story. to the extent that the majority believed that -- and there was a lot of discussion among the variety of differences of opinions in the case as to whether this individual could or could not prove his allegation, and there was a suggestion by both sides that he might never be able to do it, my point was a legal one. these are congress' words. we have to take them at their word. and if there is an end result of this process that we don't like, then we have to leave that to congress to address that issue. we can't fix it by ruling against what i viewed as the express words of congress.

>> let me use your quote there because i thought it was particularly appropriate. you said i trust that congress would prefer to make needed changes rather than have the courts to do so for it. i think the members of this committee would agree with you. as you responded to senator grassley in regards to the river keeper case, you said you can get deference to congress. i think we all share that. one of my concerns is that we are seeing judicial activism in restricting the clear intent of congress and moving forward on fundamental protections. and let me move to the environment which is an area that is of great concern to all of us. in the past 50 years, congress has passed important environmental laws including the clean air act and clean water act and endangered species act and safe drinking water act and superfund. despite the progress we've made over the years it's important to

keep advancing the protections in our environment. during your testimony yesterday you made it clear that you understand that senators and members of congress elected by the people are the ones making policy by passing laws. and you also made it clear that judges apply the laws enacted and that they should do so or at least do so with deference with intent of congress. yet we've seen in recent decisions of the court like the solid waste agency of northern cook county versus u.s. corps of engineers and rapanos versus the united states they forced the epa to drop 500 cases against alleged polluters. these decisions have impact. and it is clear to many of us that they reject long-standing legal interpretations in the clean water act was done by the supreme court and ignoring the science to serve as the foundations for the laws passed by congress and intent of congress to protect american people by providing them with clean water, clean air and a healthy environment.

as a senator for maryland, i'm particularly concerned about that as it relates to the efforts that we're making on the chesapeake bay. now, i understand that these decisions are now precedent! and they are binding. and that it may very well require the congress to pass laws further clarifying what we meant to say so we can try to get us back on track. i understand that. but i would like you to comment -- and i hope reinforce the point that you have said -- that in reaching decisions that come to the bench, whether they are environmental laws or other laws that protect our society, you will follow the intent of congress and will not try to subplant individual judgment that would restrict the protections that congress has passed for our community. >> i believe my case -- my cases, my entire record shows

that i look at the acts of congress, as i think the supreme court does with deference, because that is the bedrock of our constitutional system, which is that each branch has different set of constitutional powers, that deference must be given to the rights of each branch in each situation, that it is exercising its powers. and to the extent that the court has a role, because it does have a role, to ensuring that the constitution is followed, it attempts to do that. when i say attempt, but it always attempts it with a recognition of the deference it owes to the elected branches in terms of setting policy and making law. >> thank you for that -- for that response. let me turn, if i might, to our personal backgrounds. there has been a lot of discussion here about what each of us bring to our position in

public life. progress for women in this country has not come easily or quickly. at one time, women could not vote, could not serve on juries -- >> we will take a break right now. i want to emphasize how much we have yet to go here. we have one more republican, tom coburn, a very interesting fellow from oklahoma, of course. five democrats including two very sharp performers here. white house who probably gave the toughest indictment of the republican argument against them. then arlen specter and al franken, the newest member of the committee have their questioning come up later this late morning. we'll be right back with more of these questions from members of the judiciary committee. gecko vo: geico's the third-largest

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a health care bill along the lines of the one that the president once passed this year. it provides for a couple of very interesting elements. one, it will require individual americans to buy health insurance. if you're a young person, healthy and not needing health insurance right away, you nonels have to nonetheless, have to buy it. employers have to give health insurance to their employees. cost-cutting element of a 2.5 trillion claim at least of health cost reductions over the years. the senate has acted along party lines 13-10. is this the liberal wing of this senate acting here? >> it is. it's take that, max baucus. the senate has been slow to move. the house is moving faster. the president and the white house really want this to happen. rahm emanuel is pushing hard for this to happen before the august recess and there was some sense

that they had lost traction, that's why you saw the president coming out yesterday making a statement. he is coming out again today at 1:00 in the rose garden. he is meeting with medical doctors who are correspondents, our own dr. nancy snyderman and others are coming to the bhis white house to do interviews with all of them. hard drive on health care. >> mark, is this to take focus off the doctors to show the importance to health care to the country and get the focus off the fiscal costs? >> absolutely. i think they are frustrated that most of the coverage is about the sausage making and legislation and cost issues. he wants to remind the american people why we need health care reform but he also has to show he is back in the game. a lot of questions last week when he was abroad about why he wasn't weighing in more heavily. >> right. >> so far the president has been very good about getting everybody to the table but i think a real sense now we have to start pounding the table. >> on that news point, let's go to chris dodd who is maeb of the health committee talking about the committee action.

>> here this morning. i talked to him. excuse me. earlier. he was very excited about the fact that his committee will be the first committee to mark up a bill. second to the floor. obviously, we need a bill for the plans and the efforts and making that in the next quks as we move forward. most importantly, beyond the sense of detail about having [ inaudible ] for millions of our fellow citizens, those without coverage, those who have too high deductibles or out-of-pocket expenses and those who are losing their jobs and worry about whether or not the health care coverage, this is a response to them. they deserve better in a country of this great ainfluence, of this great ability, with the professional class we have in our health care area, we ought to be able to do a lot better than we've been doing. we spend more and get less for health care system that americans deserve. this bill, because of what we've done, we think is going to

increase access, it's going to reduce costs to individuals, and it's going to improve the quality of health care in our country. we have to make investments to achieve those results, but we're prepared to do that. this is an important moment. we may never get a better chance to do it. it's no longer just unacceptable to the health care system, it is unsustainable. we cannot continue and we are determined to get this done in this congress and we have a president who is determined to get it done as well. and prepared to spend whatever capital, in his own words, to achieve the result of this political capital to get this achieved and accomplished. that makes us bring together the synergy and the opportunity to do what every other congress and every other administration has been unable to achieve for almost seven decades. we're determined that will not happen on our watch. with that, let me turn to senator harkin and the rest of my colleagues. tom? >> first of all, mr. chairman, thank you very much for your great leadership on getting us

over the finish line. it's been a long slide but we all worked hard. we all stuck together and what we now have is we now have a bill that does four things. it reduces costs, it protects choice, it assures coverage for all americans, and it also begins to change our system to be a health care system, rather than just a sick care system. as president obama has said many times, that prevention and wellness and public health is the one way that we're going to change the system so that we can keep costs down in the future. and in this bill, we have made great strides forward in putting more emphasis on prevention and keeping people healthy in the first place and keeping them out of the hospital. and so i think this is a good bill for america. it is the right prescription for what ails this country right now. and i want to thank all of my colleagues for all of the great work they did and sitting here

through all these long hours and drafting a bill that i believe now will garner a lot of support in the senate and i believe will get it over the finish line some time this fall and we're going to have this on the president's desk some time early this fall. >> barbara? >> well, today, we meet our responsibility to the american people by now providing universal health care coverage to all americans. health care coverage that is available, undeniable, and affordable. available to all without any discrimination on the basis of a previous condition. no discrimination on the basis of gender. and it means that if you're a father and you lose your job, your children will not lose their health care. if you're a mother dealing with an autistic child, you will be able to have the doctor that you

need when you need it, and no one can then deny that care. we make it affordable by focusing on new thinking and prevention and quality that we know through our quality initiatives, whether it's reducing medical errors, needless hospital readmissions, and also better management of chronic disease, we can save over 500 billion dollars in our health care system and we guarantee that if you like what you've got, you'll get to keep it. but if you need something new, you'll be able to go through a new gateway and find something that is affordable, personalized to your family. we did it because we democrats work together. we regret that the republicans did not support this bill, even though we gave them hours of debate, opportunities to offer unlimited amendments, and to be able to speak their mind, vote their will, will you at the end of the day, they did not want to

support universal health coverage for all americans. so it's a question of on whose side are you? we stand here today on the side of the american people. we stand here on the side of american providers where if we want to get rid of their half so they can do value-based care. we stand on the side of history that says we, the democrats, know how to do a social contract with the american people that provides them with the safety net in terms of the health care they need. and i want to thank senator chris dodd for the leadership that he provided. he stepped in when needed. he provided the leadership that was called for. and he provided the skill and openness and transparency of the debate that i think truly honors this committee in the senate. chris, we thank you. and i thank my colleagues for all of their hard work and their great contributions. >> thank you very much. >> i want to join everybody in

congratulating senator dodd on his leadership and success in this process. i do think that as part of this markup, we have had had to make tough decisions -- >> is there a happy group of liberals. it's not exactly a representative group, is it, andrea? >> no. and they haven't figured out how to pay for it. they don't have the finance committee on board yet. they still have to do that. the house side at least gotten together. all of the committee chairman have gotten together and who is going to have jurisdiction and what their plan is and they will be introducing that on the house floor. the senate side is behind. you've got a conflict between those on the health and education committee that have just reported on a party line vote, 13-10 today but, significantly, it was sort of a moment there when senator dodd said i just talked to ted itty kennedy, you know, we miss him but we've told him we're carrying on his work. he's been working, we're told, about two hours a day.

an hour in the morning and hour in the afternoon calling in and working from hyannis. >> this reminds me of the world war ii film, "a bridge too far." as the allies try to move through europe and end the war quickly. they have to beat the clock situation they're facing. it's july 15th today. here we have the first committee to report the health committee of the senate which is liberal and yet to hear from the senate finance committee and three other committees have not reported yet. i have a sense a lot of this is floating, floating these proposals, floating the cost figures out there. so for the next three weeks, this country is all going to be participating in this. business community, taxpayer groups, everything is going to be involved and try to write this bill. >> something we haven't seen in a long time which is real discipline among liberal democrats. and essentially the house version which, again, is a combined version from all three committees, reflect the liberal version of health care with a public option, with it being

paid for by a is your tax surtax on the wealthy. these are two committees that have jurisdiction in the senate and basically what they are doing now is putting pressure on the third party which is the finance committee, the more moderate to conservative committee in the senate now to get on board. and their big question has been, led my max baucus, the chairman, how do we pay for this? what is the fiscally responsible way? that is the debate along with the question is there a public option? this is now a shot across the bough that absolutely we want a government-run public option as part of this reform. >> and later today, you're going to see senator schumer and others from the democrats announce that they want the insurance industry, the health insurance industry, to ante up. they are going to have their own proposal for some of the money to come from the insurance

industry. >> we're waiting to hear from the republicans on that committee who came on the short end of that 13-10 vote. of course, it was a party line vote. i guess the question is how are they going to do it? it takes 60 votes in the senate to break a filibuster. i gis we are assuming the republicans are willing to launch a filibuster, right, prevent a vote if they can which means it takes 60 votes and the democrats have 60 votes with the certification of al franken. let's go to the republican side and see what their opposition will sound like. >> we tried, through a long process of amendments to get it right. we had to do it through amendments because the democrats drafted the bill and i do remember in the election they said we won the election, we get to draft the bills but that's not bipartisan. the only way we had any input was to do amendments and we did a bunch of amendments to point out the flaws in the bill and i hope a people will take a look at that and we'll talk about that some this morning, because

this bill will not meet any of the presidential goals. we've had speed in the drafting process. we allowed the bill to come to committee with only half of it drafted. and, later, we got the other half. the reason the other half didn't come is because it drove up costs even more. we're talking about a trillion dollar problem that this bill will cause. and it will cover less people. it's also a travesty for small business. i have a number of people who will cover a number of these issues. but the bill fails what it was set out to do. i hope there's still a chance to correct it for the sake of americans. they need to have insurance and be covered when they have pre-existing conditions. we had five republican bills that answered all of the things the president said and all of the goals that we set out and we had to do those through amendments and they were virtually turned down. it was kind of the impression we got was that it was suggested by

a republican, it has to be bad, and that is bad for america. i call on senator gregg for some comments. >> thank you for your leadership during these last few many weeks as we marked up this bill. the president, throughout the first pitch last night for the all-star game, but, today, we struck out on the issue of the president's initiatives in health care. he set out three standards. first, that all americans should be covered. well, this bill leaves 34 million people uncovered. second, the cost curve should be bent and we should get under control of the cost of health care because it's going to bankrupt our country. this bill doesn't do that either. it adds over a trillion dollars potentially to the debt of the united states. a trillion dollars. and, thirdly, he said nobody should lose their health care if they wanted to keep health insurance. this bill doesn't make that -- doesn't reach that issue either.

in fact, people will lose their insurance and not only that, but lose their job according to the study, small business will be massively impacted by this and a lot of jobs will be lost in america. there are ways we can accomplish what the president wants to do. i have proposals. senator coburn and senator byrd has specific proposals where we can cover all americans, where we can bend the costs of health care and make sure that americans who like their health insurance get to keep their health insurance. it's regrettable we were not allowed to be at the table when this bill was drafted so we could have gotten those ideas into the bill and equally regrettable when we offered amendments which in many instances addressing the issues which the president has raised as his primary concerns as they failed because they came from our side of the aisle. >> senator byrd? >> thank you, mike. the president stated very clearly at the start of this process that health care was unsustainable on its current

path. today, 17% of our gross domestic product. we agree with the president. it is unsustainable today. the goal was to produce a health care system that reduced the costs of health care over a period of time and made the future sustainable and predictable. well, we have anything but that today. tom coburn and i did offer a complete substitute to the bill, one that checked all of the boxes that senator gregg just talked about. it assured that every american was covered. it assured that the right investment was made in prevention, wellness, and disease management which are the only three things that bring the cost down in the future. and, yes, it passed the test of being financially sustainable well into the future. not only does the bill that was passed out of the health committee today fall 34 million americans short of full coverage, it is unsustainable

financially and it actually will penalize americans that have insurance today that -- >> that is richard byrd, north carolina, giving the republican objections to the health care bill. it's reasonable to assume a lot of compromise between now and the end of the summer between the two parties if they get a health care bill. they can't go with a clean democratic bill at this point, they don't have the votes. we will be right back with the continuing coverage of the confirmation hearings on sonia sotomayor.  ♪ look at this man

♪ so blessed with inspiration ♪ ♪ i don't know much ♪ but i know i love you ♪ and that may be ♪ all i need ♪ to know (announcer) customers love ge aircraft engines almost as much as we love making them. innovation today for america's tomorrow. let's go to norah o'donnell who is in the hearing room for the senate confirmation hearings on sonia sotomayor. there has been another outburst from another anti-abortion heckler. >> what we have going on right now is tough questioning by senator coburn who is only one of two doctors in the united states senate. of course, is an abortion apont. he took unusual step when he started questioning her to apologize for the five

anti-abortion protesters we've had over the last several days here. he apologized for their outburst saying that is not the way to affect change. he has since gotten into toughing questioning. he is an a doctor, ob-gyn. what if you had a 38-week old child, 40 weeks is term for a baby. what if you had a 38-week-old baby who had a spina bifida on their back. would it be legal to terminate that child? the judge sotomayor said i cannot answer that in the abstract and cannot answer your hypothetical. then coburn said what about technology and its advancement? should it have a bearing on how we look at roe versus wade? senator coburn saying doctors can now save a 21-week-old baby and she said, again, i cannot answer that in the abstract. you can tell that judge sotomayor has been well-coached and well-trained and is avoiding

direct and specific answers to senator coburn's questions. chris? >> okay. was there a heckler this morning as well some. >> i did not see a heckler this morning. the last heckler, yesterday. >> let's get back to senator coburn from oklahoma. >> next is in your ruling, the second circuit ruling, and i'm trying to remember the name of the case. maloney. the position was is that there's not an individual fundamental right to bear ams arms in this country. is that a correct understanding of that? >> no, sir. >> okay. please educate me, if you would. >> in the supreme court's decision in heller, it recognized an individual rights to bear arms as a right guaranteed by the second amendment, an important right,

and one that limited the actions the federal government could take with respect to the possession of firearms. in that case, we're talking about handguns. the maloney case presented a different question. and that was whether that individual right would limit the activities that states could do to regulate the possession of firearms. that question is addressed by a legal doctrine. that legal doctrine uses the word fundamental, but it doesn't have the same meaning that common people understand that word to mean. to most people, the word, by its dixaridictionary term is

fundamental, it's sort of rock basis. those meanings are not how the law uses that term when it comes to what the states can do or not do. the term has a very specific meaning which means, is that amendment of the constitution incorporated against the states. >> through the 14th amendment? >> and others, but -- generally. i shouldn't say and others. through the 14th. the question becomes whether -- and how that amendment of the constitution that protection applies or limits the states to act. in maloney, the issue for us was a very narrow one. we recognized that helder held and it is the law of the land right now in the sense of

precedent, that there is an individual right to bear arms, as it applies to government -- federal government regulation. the question in maloney was different for us. >> okay. >> was that right incorporated against the states and we determined that given supreme court precedent, a precedent that had addressed that precise question and said it's not, so it wasn't fundamental in that legal doctrine sense, that was the court's holding. >> did the supreme court say in heller it definitely was not or did they just fail to rule on it? >> well, they failed to rule on it, you're right. >> is there a very big difference there. >> i agree. >> let me continue with that. so i sit in oklahoma in my home and what we have today as law in the land as you see it i do not have a fundamental incorporated right to bear arms. as you see the law today.

>> it's not how i see the law. >> you see the interpretation of the law today. in your opinion of what the law is today, is my statement a correct statement? >> no, it's not my interpretation. i was applying both supreme court precedent deciding that question, and second circuit precedent that had directly answered that question, and said it's not incorporated. the issue of whether or not it should be is a different question and that is the question that the supreme court may take up. in fact, in his -- in his opinion, justice scalia suggested it should, but it's not what i believe. it's what the law has said about it. >> so what does the law say today about the statement? where do we stand today about my statement that i have -- i claim

to have a fundamental guaranteed, spelled-out right, under the constitution that is individual and applies to me, the right to own and bear arms. am i right or am i wrong? >> i can't answer the question of incorporation, other than to refer to precedent. precedent says, as the second circuit interpreted the, the supreme court precedent, that it's not -- it's not incorporated. it's also important to understand that the individual issue of a person bearing arms is raised before the court in a particular setting and by that, i mean what the court will look at is a state regulation of your rights. >> yeah. >> and then determine can a state do that or not. so even once you recognize a right, you're always considering what the state is doing to limit or expand that right and then

decide is that okay constitutionally. >> yeah. it's very interesting to me. i went back and read the history of the debate on the 14th amendment and for many of you who don't know, what generated much of the 14th amendment was in reconstruction. southern states were taking away the right to bear arms. recently freed slaves. much of the discussion in the congress was to restore that right of the second amendment through the 14th amendment to restore an individual right that was guaranteed under the constitution. so one of the purposes for the 14th amendment, the reason -- one of the reasons it came about is because those rights were being abridged in the southern states post-civil war. let me move on. in the constitution, we have the right to bear arms, whether it's incorporated or not, it's stated there. i'm having trouble understanding how we got to a point where a right to privacy, which is not

explicitly spelled out, but is spelled out to some degree in the fourth amendment, which has settle law and is fixed, and something such as the second amendment which is spelled out in the constitution as not settled law and settled fix, i don't want you to answer that specifically. what i would like to hear you say is how did we get there? how did we get to the point where something that is spelled out in our constitution and guaranteed to us, but something that isn't spelled out specifically in our constitution is? would you give me your philosophical answer? i don't want to tie you down on any future decisions but how did we get there when we can read this book and it says certain things and those aren't guaranteed, but the things that it doesn't say are. >> one of the frustrations with judges and their decisions by citizens is that -- and this was

earlier response to senator cornyn, what we do is different than the conversation that the public has about what it wants the law to do. we don't, judges, make law. what we do is we get a particular set of facts presented to us. we look at what those facts are, what, in the case of different constitutional amendments is, what states are deciding to do or not do, and then look at the constitution and see what it says in an attempt to take its words and the principles and the precedents that have described those principles, and apply them to the facts before you. in discussing the second amendment, as it applied to the federal government, justice scalia noted that there had been

long regulation by many states on a variety of different issues related to possession of guns. and he wasn't suggesting that all regulation was unconstitutional. he was holding in that case that d.c.'s particular regulation was illegal. >> right. >> as you know, there are many states that prohibit felons from possessing guns. so does the federal government. >> uh-huh. >> and so it's not that we make a broad policy choice and say this is what we want, what judges do. what we look at is what other actors in the system are doing, what their interest in doing it is and how that fits to whatever situation they think they have to fix, what congress or state

legislature has to fix. all of that is the court's function. so i can't explain it philosophically. i can only explain it by its setting and what the function of judging is about. >> thank you. let me follow-up with one other question. as a citizen of this country, do you believe in my ability to have self-defense of myself? personal self-defense? do i have a right to personal self-defense? >> i'm trying to think if i remember a case where the supreme court has addressed that particular question, is there a constitutional right to self-defense, and i can't think of one. i could be wrong. but i can't think of one. generally, as i understand most

criminal law statutes are passed by states. and i'm also trying to think if there is any federal law that includes a self-defense provision or not. i just can't. what i was attempting to explain is that the issue of self-defense is usually defined in criminal statutes by the state's laws. and i would think, although i haven't studied all of the states' laws, i'm intimately familiar with new york -- >> but do you have an opinion or can you give me your opinion of whether or not in this country i personally, as an individual citizen, have a right to self-defense? >> as i said, i don't know. i don't know if that legal question has been ever presented. >> i wasn't asking about the legal question. i'm asking about your personal opinion. >> but that is sort of an