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with complete details about hearing loss and how we can help you. call 1-800-336-4990 to take one of these easy steps toward better hearing. that's 1-800-336-4990 call now! we're back with our coverage on msnbc of the senate confirmation hearings on the nomination to the supreme court of justice sonia sotomayor. we've got two more democrats in this first round coming up. arlen specter, the democrat from pennsylvania and the brand new senator from minnesota, who has been certified now, al franken. we know him from "saturday night live." he's going to get his first big chance in the national spotlight. a half hour of al franken coming up as a senator. this is really going to be sort of interesting for us who have watched him over the years to see how he takes this and see

how much he spreads his wings and how well he keeps his head down. i think this may be a real mixed bag here in seeing the franken we've gotten to know over the years and the senator in that post. anyway, let's go to norah o'donnell, who's in the hearing room watching the senators reconvene. >> i'm excited, too. we know him as a comedian and "saturday night live" man, but he's harvard educated, he's going to be playing the role of senator here today. he's played the role of senator way back when on "saturday night live," he played paul simon, questioning clarence thomas and so this will be different here today. i should also point out, senator arlen specter, if he had been a republican, he would have been the ranking republican. he would have been sitting where

jeff sessions was. but now, he's at the end of this table. he's a junior senator. even more junior than biden's replacement. he came in early. he's been having his cup of coffee and preparing for his questions of judge sonia sotomayor. and what we've seen this morning is a lot of the hot button issues. abortion, gun rights. less on some of the rhetoric, but more on how she would rule on these issues. she's been pretty dexterous if you will, avoiding the issue of abortion rights. it was noted earlier this morning, there are about 14 members of the new haven firefighters here. we will hear from frank ricci in that case. he will probably testify tomorrow as well as lieutenant vargas, a firefighters who

believes their case is important. now we see judge sotomayor returning from the lunch break. >> thank you. i'm joined here by andrea mitchell and mark whitaker. it seems to me one advantage is it's sort of a quick ki course. if you're just coming to this country and you want to know what separates on this front, it's these issues. gun rights, abortion rights. >> and these are the hot button issues that did not get as much play in the last presidential election as they have in past years because of the economy taking precedence. and even with the obama presidency, you haven't seen in fact deliberately because the whout wants to avoid these issues. >> okay. i love chat -- forcing you to think hard, why has not one member in this committee so far,

there's 12 democrats, 19 people. not one has raised the issue we all know is going to come forward. same-sex marriage. >> it is not a winning issue for anybody on this committee to get into this with her. not on either side. >> why is it troubling for a conservative member of the senate committee to raise the issue whether she might be open to a liberty clause which allows the united states supreme court to ban the states from banning same-sex marriage. >> the country is shifting. this is uncertain terrain. it would be politically add venn tanlgs. the country is more libertarian on these issues. really don't want to go there. they don't want to pin

themselves down on something where if you draw a logical c conclusi conclusion, you have to say it's permissible. >> let's go to the committee right now. >> nice chat with her this morning. she was talking about when she first compared notes with my wife, both agreed that's when nurses truly had to be nurses. now, they're nursing plus with the advance of medicine. we will, i just discussed this again with senator sessions, we'll go first to senator specter, then to senator franken and then recess and go into the other room for the close. senator specter, of course, is former chairman of this committee. one of the most senior member of the senate. one of the most experienced. senator specter. >> thank you, mr. chairman.

welcome back, judge sotomayor. you have held up very well in all of the proceedings in the senate. this is the most exacting on the witness. years ago, as you know, in the case of ashcrofh versus tennessee, she said it was unconstitutional to suspect someone to grilling. your family has been here. my wife, who has been an office holder in her own right, said it's a lot harder to listen to me than to make a speech herself. i think beyond doing very well on stamina, you have shown intellect and humor and charm

and pride and also modesty, so it's been very -- a good hearing. notwithstanding all of those qualities, the constitution says we have to decide whether to consent and that requires the hearing process and the questions. before going into long list of issues, which i have on the agenda, separation of power and wireless wiretaps and secret cia programs and voting rights and the americans for disability act and a woman's right to choose and environmental protection agency and clean water act and television in the second amendment, i'd like to make an observation or two. there has been a lot of talk about a wise latino woman and i

think that this proceeding is making a mountain out of a mole hill. we have had a consistent lie, people who are nominees who make references to their backgrounds. we have our own perspective. justice o'connor talked about her life experience. j justice thomas talked about putting himself in the shoes of other people. justice scalia talked about being in a racial minority. the expectation would be that a woman would want to say something to assert her confidence, where the glass ceiling was limited people,

where there was still disparagement of people on ethnic backgrounds. just this month in a suburb of philadelphia, hispanic children were denied access to a pool for whites only as were african-american children, so i can see how someone would take pride in being a latino woman and assert herself. lot has been made of the issue of empathy, but that characteristic is not exactly out of place in judicial determinations. we've come a long way on the expansion of constitutional rights. oliver wendell's statement that the life of the law is experience, not logic. the justice in connecticut talked about changing of values

and the warn court changed the constitution practically every day. changes in search and seizure, right to council, who could have thought it would have take until 1963 to the right to council. we've heard a lot of the talk about the nomination proceeding of judge moore and they've tried to make bork into a verb. anybody who looks at that record will see that it's very, very different. we had a situation where the judge was an advocate of original intent and how can you

have original intent when it was written on equal protection with the senate galleries which are segrega segregated. or believing that equal protection applied to race and ethnicity, didn't apply to women. it was a very thorough hearing. i spent beyond the hearing days in three long sessions, five hours, so it was his own approach to the law which resulted there. you had an evolution of constitutional law which puts empathy in an okay status, an okay category. now on to the issues. i begin with an area of cases which the court has decided not to decide.

and those cases can be even more important than many of the cases which the court decides. the docket of the court at the present time is very different from what it was a century ago in 1886, the docket had 1396 cases. decided 451. hundred years later, there will only 161 signed opinions in 1985. 2007, only 67 signed opinions. during his confirmation hearings, chief justice roberts said the court could contribute more to the law by taking more cases. judge sotomayor, do you agree with that statement?

>> i know, senator specter, that there is questions by many people including senators and yourself of justice roberts and other nominees about this issue. can the court take on more. to the extent that there's concern about it, not the public opinion should drive the justices to take more cases just to take them, but i think what justice roberts was saying is the court needs to think about its -- >> judge sotomayor, how about more cases? >> well, perhaps i need to explain to you that i do not like making statements about what i think the court can do until i've experienced the

process. >> one case they did not take involved the terror program, which i think caused the greatest conflict between congressional powers in enacting the foreign intelligence surveillance act which provided for the exclusive way to get wiretaps. the president disregarded that in a secret program called the terror surveillance program. didn't even tell the chairman of the judiciary program, didn't tell the intelligence committees, where the law mandates they be told about such programs. it was only disclosed by the "new york times." those practice confronts us this day with reports about many other secret cases not disclosed. the federal district court in

detroit found the terror surveillance program unconstitutional. six circuit had a 2-1 opinion said there was in standing. the decent had the much better of the standing. the supreme court of the united states denied, didn't even take up the case to the extent of deciding whether it should take it because of lack of standing. i wrote you a letter about this. wrote a series of letters, and gave you advance notice that i would ask you about this case. i'm not asking you how you would decide the case, but wouldn't you agree that the supreme court should have taken that kind of a major conflict on separation of powers? >> i know it must be very frustrating to you to --

>> it sure is. i was the chairman who wasn't notified. >> i'm -- i can understand not only congresses or your personal frustration, sometimes citizens, when there are issues they would like to court to consider. the question becomes what do i do if you give me the honor to serve on the court. if i say something today is that going to make a statement about how i'm going to prejudge someone else's -- >> i'm not asking you to prejudge. i'd like to know your standards for taking the case. if you have that kind of conflict, the court is supposed to decide conflicts between the executive and legislative branchs, how can it be justified not to take that case?

>> there are often, from what i understand, and that's from my review of supreme court actions and cases of situations in which they have or have not taken cases and i've read some of their reasoning as to this, i know that with some important issues, they want to make sure that there isn't the procedural bar to the case of some type that would take away from whether they're in fact doing what they would want to do -- >> well, was there a procedural bar? you had weeks to mull that over because i gave you notice. >> senator, i'm sorry. i did mull this over. my problem is that without looking at a particular issue and considering the brief style, the discussion of potential colleagues as to the reasons why a particular issue should or

should not be considered -- >> how could i answer -- let me move on. on a woman's right to choose. circuit judge in the case of richmond medical center said that casey versus planned parenthood was super starry decisive. do you agree? >> i don't use the word, super. i don't know how to take that word. all precedent of the court is entitled to the respect of the doctrine. >> do you think that row versus wade has added weight to protect a woman's right to choose by virture of casey versus planned parenthood? >> that is one of the factors

that i believe courts have used to consider the issue of whether or not any direction should be taken in the law. there is a variety of different factors the court uses, not just one. >> that is one which will give -- how about the fact that the supreme court of the united states has had 38 cases after row versus wade where it could have reversed row versus wade? would that add weight to the impact of row versus wade on stare dicisis? >> the history of the particular holding of the court and how the court has dealt with it in subsequent cases would be among one of the factors as many that a court would likely consider. each situation however, is considered in a variety of

different viewpoints and arguments, but most importantly, factors of the court applies to this question of should precedence be altered in a way. >> well, wouldn't 38 cases lend a little extra support to the impact of row where the court had the issue before? could have overruled it? >> in -- casey itself, an opinion authored by justice suito suitor, talked about the factors in whether to change precedent. some where how much reliance society has placed in prior precedent. was the rule workable or not,

had the either factual or doctrinal basis of the prior precedent altered related areas of law or not to council a re-examination of a question. >> i'm going to move on. >> and the court has considered in other cases, the number times the issue has arisen and what actions the court has or not taken with respect to that. it did reaffirm the court holding of row so my understanding would be that the issues would be addressed on the part of casey. >> do i hear you saying at least a little bit. >> let me move on, congress and

the -- in 1997, suddenly the supreme court of the united states found a new test called con grew ens. up to that time, the judgment on a rational basis for what congress decided should be sufficient. >> that's senator arlen specter of pennsylvania. andrea, you've known him for years and here he is as a democrat trying to get, couple of things. he seemed like he was going over old territory with his support of comments on her background, perhaps dealing with his old problem of anita hill. but more importantly, trying to get at that issue of is abortion rights a subtle bit of law. >> and going to a pennsylvania

case -- saying is a settled law and she is still avoiding being pinned down. he has this whole track record for a certain generation, particularly pennsylvania voters, he's got a tough re-election sight. he's trying to appeal to this voter and he has to overcome residual doubts about him. he was a tough prosecutor against anita hill. he only got re-electielected in because a woman did a tv commercial, endorsing him and saying basically, women, it's all right. arlen specter is not the man who interrogated anita hill. he's not getting anywhere on these points of law. she is not going to give anything in terms of how she

would rule on pending cases. >> we watch in each case, the old rule of politics and play here. >> well, obviously, she has been coached and this was the plan all along, not to talk about general principle. whether it comes through abortion, executive privilege. every time not only republicans, but now a democrat or a new democrat have tried to engage on principle, she has said i will only talk about certain cases. it keeps her from falling into a trap and sends the message that she's someone who bases her decisions on precedent. we're not really getting to see the quality of her mind with these narrow answers. >> i'm wondering if we're not missing the person as well. if she's hot tempered,

passionate in the courtroom, a bit domineering, if you will. although there's nothing wrong with that. none of that is showing here. if she's a liberal, none of that is really showing. if she's concerned about using her new post to fight for affirmative action or opportunity, that's not really showing. what is showing here? >> what is showing, especially in response to specter, when asked about what justice roberts said, more cases taken by the court, she is very reluctant to be presumptive, but seems to be the new kid on the block. she doesn't want to say anything that would antagonize her potential future colleagues. she doesn't want to talk about television in the court. she wants to get along and be absorbed in the way she was at princeton and other places. she's taken strong positions in

her personal life on political issues. that's been pointed out here, but she does at each step of her career, want to become part of the team and learn her way. nothing as dramatic as what we saw yesterday with lindsey graham really probing her personality and going to the widely distributed analysis by people who have appeared before her in the second circuit who said she was the toughest. the way he asked that question, saying there was this report, i want to give you an opportunity to defend yourself against it. instead, he went after her and said, you're not nice, basically. you've got a bad reputation. why are you the only one on the second circuit people don't like. maybe u you should choose this moment for self-reflection. some people, some women, perhaps others, minorities, would consider that a little patronizing. it went pretty far.

>> i think a lot of people took offense and there was one thing overnight people were talking about. but people who have followed her career in new york know that she may not be overly aggressive, but she likes to mix it up and she is very confident when she's dealing with lawyers and with her colleagues and i think that has been very deliberately muted here. she is really playing the graduate student, taking the or ral exam, looking down at her pad. >> it's not a job application. we'll be right back with our coverage. >> but when -- what's in a triscuit?

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you're following the precedents very closely. >> richard wolffe, your thoughts about this? i haven't sensed a lot of progress by the critics. >> what's interesting here, listening to arlen specter, he makes you realize that if he hasn't switched parties, the white house could be counting on votes here. on the flip side, switching parties, they lose the bipartisan support he could have represente e represented. are we see tg the sotomayor? the republicans want someone they can take into the next election about what obama represents. on the white house side, they just want to get through this in one piece. keep the character hidden, i think that's the message. >> this is not really an

audition, is it? >> no. it's not even really delving into the 17 years worth of cases, where you could really pick a lot of holes and probe and she can then say well, it's all hypothetical. what was interesting was seeing her deal with the self-defense question from coburn before lunch where she had to go back to new york law and try to explain it that way. if republicans had been interested in the real sotomayor, they could actually have had an opportunity, a strategy to create more openings. >> it seems to me there's four points. one is her comment about the advantages of anyone being a wise latina woman over someone else on the court, the other is her claim the appellate court makes policy where she said that

means they make precedent. the other judges in the ricci case and the other, her position that the gun right guaranteed now by the decision by the supreme court as an individual is not a fundamental right by the court. >> we have not seen this debate shift beyond the extraneous comments versus democrats talking about how she respects the law and it is interesting, having her reach back and flushing out the personal character story beyond those comments and talking more about her as a prosecutor, her life experiences. klobuchar talking about baseball was sort of the softest question you can get. they're trying to break down the caricature, but the strategy has not been we've heard your

speeches, that's the real you. that didn't get you beyond more than half a day. >> well said. we'll be right back. arlen specter continues to question the nominee. we'll get to the exciting half hour off al franken coming up. gecko vo: you see, it's not just telling people geico could save 'em hundreds on car insurance. it's actually doing it. gecko vo: businessmen say "hard work equals success." well, you're looking at, arguably,

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aleve works for me. here he comes. al franken, the senator from minnesota. >> that was most heartfelt. i'm glad you're here. please go ahead. >> thank you, mr. chairman. thank you for all your thoughtful answers throughout the hearing. before lunch, our senior senator from minnesota, amy klobuchar, asked you why you became a prosecutor and you mentioned

perry mason. i was a big fan of perry mason. i watched perry mason every week with my dad, my mom, my brother. we'd watch the clock and we knew when it was two minutes to the half hour, the real murder would stand up and confess. it was a great show. and it amazes me that you wanted to become a prosecutor based on that show. because in perry mason, the prosecutor, berger, lost every week. with one exception, which we'll get to later. but i think that says something about your determination to defy the odds. and while you were watching perry mason in the south bronx with your mom and your brother

and i was watching perry mason in minneapolis with my folks and my brother and here we are today. and i'm -- i'm asking you questions because you have been nominated to be a justice for the united states supreme court. i think that's pretty cool. as i said in my opening statement, i see these proceedings as both in a way to take a judgment of you and of any nominees suited for the high court, but also as a way for african-americ to learn about the court and its impact on their lives. right now, people are getting more and more of their information on the internet. newspapers and television, blogs

and radio. americans are getting all of it online. it plays a central role in our democracy by allowing anyone with the computer connected to the internet to publish their ideas, their thoughts, their opinions and reach a worldwide audience of hundreds of millions of people in seconds. this is free speech. and this is essential to our democracy and to democracy. we saw this in iran. not long ago. now, judge, you're familiar with supreme court's 2005 brand x decision. are you? >> i am. >> well then you know that brand x deregulated internet access services, allowing service providers to act as gate keepers

to the internet even though it was originally government funded and built on the knowledge of common carriage and openness. in fact, we've already seen examples of these companies blocking access to the web and discriminating on certain uses of the internet. this threatens to undermine the greatest engine of free speech since the printing press. let's say you're living in duluth, minnesota and have only one internet service provider. it's a big corporation and not only are they only an internet service provider, u but they're a content provider. they own newspapers, tv networks, or network. they have a movie studio. they decide to speed up their own content and slow down other content.

the brand x decision by the supreme court allows them to do this. and this isn't just duluth. it's denver, it's san francisco and yes, it's new york. this is frightening. frightening to me and to millions of my constituents. lots of my constituents. internet connections use public resources. public air waves, public rights of way. doesn't the american public have a compelling first amendment interest in insuring this can't happen and that the internet stays open and accessible? in other words, that the

internet stays the internet. >> many describe the telephone as a revolutionary invention and it did change our country dramatically. so did television. and its regulation of television and rule us that would apply to it were considered by congress and those regulations have, because congress is the policy chooser on how items related to interstate commerce and communications operate. and that issue was reviewed by the courts in the context of the policy choices congress made. there is no question in my mind as a citizen that the internet

has revolutionized communications in the united states. and there's no question that access to that is a question that society is -- that our citizens as well as yourself are concerned about, but the role of the court is never to make the policy. it's to wait till congress acts and then determine determine what congress has done in its constitutionality of that ruling. brand x, as i understood it, was a question of which government agency would regulate those providers. and the court, looking at congress's legislation in these two areas, determined that it thought it fit in one box, not

the other. one agency instead of another. >> is this title one and title two or -- as i understand it, title two is subject to a lot of the regulation and one isn't. >> exactly, but the question was not so much stronger regulation or not stronger regulation, it was which set of regulations given congress's choice control. obviously, congress may think that the regulations the court has in its holding interpret congress's intent and that congress thinks the court got it wrong. we're talking about statutory interpretation and congress's ability to alter the court's understanding by amending the statute if it chooses. this is not to say that i

minimized the concerns you expressed. access to internet, given its importance, most businesses depend on it, most individuals find their information. the children in my life virtually live on it now and so it's importance implicates a lot of the questions, freedom of speech, with respect to property rights, government regulation. there's just so many issues that get implicated by the internet that what the court can do is not choose the policy. it just has to go by interpreting each sta chut. >> i understand, but isn't there a compelling first amendment right here for people? no matter what congress does?

and i encourage my colleagues, but isn't there a compelling overwriting first amendment right here for americans to have access to the internet? >> right by a quarter, not looked at as overriding, in a sense a citizen would think about it. should this go first or a competing right go second? rights are rights and what the court looks at is how congress balanced those rights in a particular situation and then judges, whether that balance is within constitutional boundaries, calling one more compelling than the other suggests that they're sort of you know, property interest are less important than first amendment interests. that's not the comparison a kaurt makes.

a comparison the court makes starts with what balance does congress make first. >> so we've got some work to do on this. i want to get into judicial activism. there's kind of an impoverishment of our political discourse when it comes to the judiciary. i'm talking in politics, when candidates or office holders talk about the, what kind of judge they want. it's very often just reduced to, i don't want an activist judge, a judge that's going to legislate. that's sort of it. a 30-second sound bite. as i and a couple of other senators mentioned, it's become a code word for judges that you

don't agree with. judge, what is your definition of judicial actvism? >> it's not a term i use. i don't use the term because i don't describe the work that judges do in that way. i assume the good faith of judges and in their approach to the law, which is that each one of us is attempting to interpret the law according to statutory construction and to come in good faith to an outcome that we believe is directed by law. when i say we believe, hopefully, it's we all go through the process of reasoning it out and coming to a conclusion in accordance with a

principles of law. i think you're right that one of the problems with this process is that people think of actvism as the wrong conclusion in light of policy, but hopefully judges, and i know that i don't approach judging in this way, are not imposing policy choices in their views of the world or their views of how things should be done. that would be judicial actvism in my sense, if a judge was doing something improper like that, but i don't use that word because that's something different than what i consider to be the process of judging, which is each judge coming to each situation, trying to figure out what the law means. applying it to the particular fact before that judge. >> you don't use that word or that phrase, but in political

discourse about the role of the judiciary, that's almost the only phrase that's ever used. and i think that there's been an ominous increase in what i consider judicial actvism of late and i want to ask you about a few cases and see if you can shed some light on this for us and the people watching at home or in the office. i want to talk about northwest austin utility district number one, the holder, the recent voting rights case and senator cardin mentioned it, but he didn't get out his pocket constitution as i am. the 15 amendment was passed after the civil war and gave congress the ability to pass laws to protect all citizen's right to vote.

section 1, amendment 15. the right of citizens right to vote shall not be denied by the united states on account of race, color or previous condition. section 2. the congress shall have power to enforce this article by appropriate legislation. the congress. well, congress used that power to the power vested under section 2 when it passed the voting rights act of 1965. now, the voting rights act has especially strong provision section 5 that requires states with a history of discrimination to get preapproval on any changes they make. congress's reauthorizes four times, last time was 2006, and the senate supported it by a vote of 98-0.

every senator from a state covered by section 5 voted to reauthorize it. so now, it's 2009. we have this case and justice thomas votes the whole section 5 unconstitutional. he said it went beyond the mandate of the 15th amendment because it wasn't necessary anymore. when i read the 15th amendment, it doesn't contain any limits on congress's power. it just says that we have it. it doesn't say if necessary the congress shall have power to enforce this article. it just says that we have the power. so it is my understanding the 15th amendment contains a power to the congress and because of that, the courts should pay

greater def rens to it. is that your view? >> as you know, some of the justices in that recent decision expressed the view that court should take up the constitutionality of the voting rights act and review its continuing necessity. justice thomas expressed his view. that very question, given the decision and the fact that it left that issue open is a very clear indication that that's a question that the courts are going to be addressing. if not immediately, the supreme court, certainly the lower courts. >> well, we're getting near the end of the first round of questioning by all the members of the committee. all 19 members including al franken of minnesota.

let me go to our panelists as we conclude the first round. >> i think she has come through unscathed. we haven't seen enough of her personality to know much more about sonia sotomayor, the woman. she's now going to go into closed sessions with the senators. they will ask her some personal questions. presumably, about her health. we know she's got diabetes. she's been strong getting through these questions with her broken ankle. and presumably, this woman is headed toward confirmation. >> but not the one you might want to sit next to at a dinner party. >> the goal was to survive and i think she's done that. but i think it was a bit of a

missed opportunity on the part of both parties. because rather than talking about her speeches, she has a very long record of cases and decisions. they could have probed those to get a sense of her thinking and they haven't. >> richard wolffe? >> i think she's done more than survived. she's proved she's a credible, federal judge and more than comp tept enough to be on the supreme court. this is the unbalking, whether she gets into a crouch. doesn't make for great tv. >> thank you. i'm going to be on with "hardball," but coming up is david schuster and tamron hall. come on in.

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