handguns and longuns. i ave not heard anything or spread anything in the udge's writingor speeches that would inicate to me that inny way i have toorry that vermont gun owners and many vermonters are g oers, it's a way of li, that that's gng to change. it's not goi to change for me. it's n gointo change for weapons -- my two sons, one a former marine -- o. and i will sti be -- if judge sotomayor ion the supreme urt, i expect i'll still be back in my hom --and you're welce any time you'd like to come, a go target shooting with me the. >> mr. chairman, i would ju say briefly tt -- but it is a real pivotal time we are in because if the -- if the decion by judge sotomayor

becomes law, any city, mayb not vermt, but any city or state in america could viually i belie fully baall firearms. anthat's just the way we are. we can discuss homuch precedentad to bound you to reach that conclusion, but ts is not a lite bitty issue. iis very important. >> but the states made laws and vermont has deded not to have e restrictive laws that y have in alaba. and but states -- snator franken? >> thank you, mrchairman. i ha a letter here from several former u.s. attorns, from the souern district o new york. some of themepublican appnted and supporting e judge's confiation.

sheays that each had personal experience including appearing before judge sotomayor. she came to our case without any aparent bias, probed counsel active with insightful queions and she listens and is often rsuaded by unsel. in our matters jue somayor's opinions refct discipline thinking -- it's a great letter. d i would ask that it be entered into the recd. sir, cai enter it into the record? oy. thank you. thank yo judge sotomayor, for your patience and your terrific answers. have heard a lot about you thoughts on scific cases and prinples of jurisprudence. i'd like to ask a much more general question and one that i think is a reallyood question inob interviews.

an that iwhy do you want to be a supreme court jtice? >>ou're going to hate me for taking a few mites, but can i tell you a story? >> i would love it. >> this would elain who i am a why. when senator moynihan first told mee'd consider sending my name to senato dmato for considerati as a district court judge, hasked me to keep it quiet for a little bit o time. and i asked permissiono tell my mom, d omr. he said sur they were visiting and i to them and mom was vey, very excite and she tn said how much more money are you gng to earn? and i stoopped and i said,'ll

ta a big pay cut. en she stopped and she stopp and she said,re you going to do as much forgn travel as you w? because i s flying all over the u.s. and abroad as partf my private prtice work. and i said, pbably not because i'm going to live in a courthouse in lor maattan, nea where i used to work as a manhattan d.a. now, the pause was little longer. and she saidokay. then she sd now, all the scinatg clits that you work with,hat you may have heard yesterday, i had some fairly well-known clients, you're going to be ab to go travelli with them and with the new peoplyou meet, right? and i said, no, mst of them are going to come before mes litigants to the casei'm hearing a i can't become friends with them. now e pse was really long

and she finally lookeup and she sayswhy do you want this job? and omar who was sitting next to her said, selena, you know your daughter, this is in spanish, you know your daughternd her stuff wi public service. that really has always bn the answer. given who i am, my love of the law, my sense of importane about the ru of w, how central its to thefunctioning of our socty, how it sets us apart as many senators he noted from the rest othe world, havelways created a passion in me. and that passion led me to want toe a judge -- a lawyer first and now to be a jue. because i can't thinkf any greater svice that i can give

to the untry than to be permitted the privilege of bng a justice othe supreme court. >> thank you. i for one ha been very imprsed with you, judge, and i certainly iend to support your confirmation for e court. i guess there isnother round. i ought i was going to be the only thing beeen you and the oor. so i plan toust yield my -- all the rest of my tme, but since i'm not, i would like to ask you --no, i'm going to yield the res of my time if that's okay. > thank you, thank you very much, senator fnken. i will rerve m time. wll have the -- senator

sesions has asked us a ten-minu round and it will be primarily threpublican side. may speak again when they finish, but w'll begin with you, senator sessis. >> thank u. thank you,chairman leahy. i believe we tried tomeet our goal. i had a goal at the beginng that people wld say this is one ofhe most fair and effectiveearings we ever had. i think that has been the se. is a great issue. thchoice of putting someone on the united statesupreme court. an our nominee has wonderful grouof friend and aong and distinguished record, but a number ofuestions arose that are important. american people are rhtly concerned tat on important social sues that ar not clearly stated in the constitution on the important legal issues not cleay stated inur law, seem tobe decied by unected, life-time appointed urts.

ose are g, big issues that we he discussed here day. i hope ia way that's healthy and positive. judge, one thing i will ask you, i asked justi roberts, i'm not sure how much od it did, becae he came back asking for a pay raise theext week i thin but can yo live on that salary that you're paid? we're having large deficit in the history of the republic, and people have to tighn their belts a are you prepared to do so also? >> i have been living on ths salary for 17 ars i will suer through more of it. it is difficult for manyudges. the y question is a gnificant one for judges who ven't received pa raises -- i thnk it's more than 20 years now. >> well, you're saying py raises based o -- they're getting pay raises almost evy year, really. and the cost of living, and this kind of thin

but there was aig pay raise abt 20 years ago. i think that i's about four tes the average family income in amera. i hope th you can live on t. if not,ou probably shouldn't take the ob. all judges whether there activists orot,f asked, are gog to say they follow the law. they ju have a differentiew of the law, they just hav a ttle -- aore loor interpretion of the law, so that's why we have crafted some of these issues. we want determin the bestwe can just how tightly you believe you're bound b the la and how much flibility you might think that you have as a jge expand the l, to suit perhaps a predilecon in some policy or

another. attorney general holder recent said that he thought weacked courage idiscussing the race issue,and i think that's mething that we should take seriously. that was a valid comment in my opinion, we've had a hier level of discussionf that issue than -- nce i have beenn this committee. ani hope we've done it in a way that's correct. because this is s sensite, and it's s important. and need to get it right, and we must be fair to erybody. wenow that there are cases when people have bn discriminatedgainst, they are entitled to a remedy. and the sueme court h been quite clear that en you can show a history of discrimation and we have had that not jusin the south, buin the south, the jurprudence has devoped that 's appropriate for a judge t have a remedy tat would encouge a move forward to a

beer opportunity those who have been held back. so that's good. but the supreme courhas also said tt this is dangerous philophy. because whenou do tt, you have identified one racial grou and you have giv them a preferee over another. so it can be done ina legitimate wayhat's remedial. nd we still have vestiges of discrimination still in our society and they- and there will be needs for emedial remedies. but i do think as justice roberts said, the be way to end discrimination isuit doing it and lot of our orders in court decisions e such that they benefit one ra over another, solely cause of their race. and it hato be tied to a remedy. that'why the supreme court ha made clear that en you do that,t must meet the highest scrutiny. the courts are supposed to

review that very careful and the language they use is strict scrutiny. you don favor one group over another without meetg that high staard. so i'm gad we begin to discuss that and we'll have the firefighters and they' be able to exprs their view on it in a little bit. and judge, let me just y before i go foard that yu have done good job, you he had a good humor. you have been direct inour answers a we appreciate that. i will not pport and i don' think any mber of this side will support a filibuster any attempt to block a vote onour nomination. it's a very impornt vote. we all need to take o time and think it tough and cast it honestly. as thoccasion demands. t i look forward to yo getting thavote before we cess in august. let me discuss -- judge, i'l

just express this we go forward. in yourandling of the ricci case, i think it's fairo say that it was t handled in the regular order. you said in your opening statement that the process judging is enhancedwhen the argumentsnd concerns of the paies tohe ligation are understood andacknowledged. that is y i generally strucre my opinions by stting out whathe law requires and then by explaining why a contrary position syathetic or not is rejected o accepted. that's how i see distinction in the rule of law and fth in the impartially of our justice sysm. i think thas a good statement. but think what thanel did in thicase did not meet that standard. i think it was action. i would conclude fairly i ink

contrary to the rules of the secondcircut, rule 31 says that sumry orders are only appropriate whe a decision is unanims and each judgeof the panel belies no jurisprudceal purpose would be served byn opion. and your clerk your court to "the new rk times" said this order "ornarily issues when the termination ofhe case revolves around we settled princies of law". and i would note at it was not a procure y opinon at first, it was a summary der which is even less of impactful decion than the other. b i think the spreme court ma clear and i think most americans understand that e firefightercase was more than that. it was a -- it had tremenus jurisprudenal impact.

and i think you were wrong to attempt to use the summary ord which because iwas objected to thin your circuit, which resulted in pretty roaring debate and discussion and that you went forwd, that you then did it in a procuriam w, but you did ot write ain depth opinion at all. in ft, it was still a procuriam d short opinion. i understand according t some of the writers at judge sack, ew york times," i believe, quoted by stewart taylor d natial journal that he was the most reluctant to join t opinion. udge puller was in the middle and i guess it didn't reference

the third judge, but apparently you were the third judge the were pushing fothis kind of relt. did you fail to show the crage thatttorney general holder has asked us to show andiscuss this isspenly with an in depth opion and wouldn't we have been better offf the case had bn handled in that fashion? >> sir, no. i didn'show a lack of courage. the court's decision wasclear inoth instancesn the basis for the decision it s a thoroug complete discuion of the issues as presented to the disict court, the ciritcourt's ruling wa clear in bo instances. no, did not lack courage. >> well, i don think it was a eat district court opinion, but it was so i would disagree on that. but mr. chairman, you have been fair to us throughout.

don't know that every member of our side wld use the time at they are allotted and - but i'm gl that you are aowing them the opportunity t do so. >> well,hank you, thank you for that compliment, sator. and i should compliment senator speer here with -- when he was airman, i was raing member. and had two supreme court nomination we tried to worout a time to bfair to everybody. we did and it was -- we were tod by both republicans and democrats that noby had complaint about the amount of time. i try to do the same thing. it's a lifetime appointment. i have been very impress of course wi our nominee, and that'seen of course since she was recently nomined by president george h.w. bush and

then by president inton and nowresident obama. esident clinton nominated he to the secondircuit. and i have a letter addressed to the members of the committee- actuay, to you and i, senator sessions. from formerresident clinton and he speaks of her being able to make a unique conibution to her experiences as arosecutor an trial judge, to the bench and hopes that wwill speedy confirmation r her. i'll put at in the record. one of the things tt -- i'm rying to make sure that everybody gets banced time, but a lot of us has served as either chairman or ranking member of this commite, we know how important that . and i use at to yield to nator hatch who has had als the problem of having to schedule how things go, but,

thank you, jeff, i appreciate tht. >> well, thanyou mr. chairman. i echo jeff's statement here. udge, you have been great throughout th process, and i apeciate it. but i have some questions i'd like to ask that i ink you can ansr yes or no. of urse,you can qualify them if you'd like. i'd like to get through tem because th're important to me a millions of oer peoe that i reprent. judge fm 1980 to 1992 you were actively part of thivil rights oganization in our countrand it files briefs in supreme court caes. you served in nearly a dozen different leadership potions there incding serving on and chairing the litigatio committee. "the neyork times" has described you as a "top policymaker" with the group. ansaid that you would meet frequently wh the legal staff

and played an active ole in the litigation. lawys describe you as an involved and ardt supporter of their various legal forts during yo time with the group. unquote. the assocted press looked at cuments from your service wth the fund that owed that you we "involved in making sure that the cases, the fund cases, handle were in keeping with the missi statement and re having an impact". a when senor introduced you she compared it truth bader ginburg's participation in the wen's rights act. let meask you this about a few abortion cases, inhich the fund fed briefs. i doelieve you can answer these yes or no, but agn, certainly qualify if youeel like it. i'm not asking for yo present views ther personal or legal. let's gethat straight on these

issues. norm i asking how you might rule on these isss in the futu. i just want to make that clea i might say tha like i say, these are important issu. andn one cae, in harris veus mcrae, there was an amicus brief aking the supreme court to overturn taxpayer funding for abortis. the briefompared refung to se medicaid funds to pay for bortions to the dread scott case. dread scott case tat refuse citizenshipo black people in our society. nd treated them terriy. the time, did you know th the fund was ling this brief? at thetime, did -- well, let ask you ea, at the time, did u know that the fund was filing thisbrief? >> no,sir. >> okay. at the time, did you ow that the bef made this argumental? >no, sir. >at time did you suort the

und filing this brief that me this argument? >> no. >> at the time, did yo voice any concern, objection, disagreement doubt about the fund fing this brief or making this gument? >> was not like justice ginsbu or justice marall. i was not lawyer on the fund as they were with respecto the rganizations they belonged t i was a board meer and it was nomy practiceand not that i know of of any board ember, although maybene with civil rights experiee would have. i didn' have any this area, i never reviewed the bris. >> all right in anoer case, oh vers akron center for repructive ealth, the fund argued thathe first amendme right to freely exercise religion undermines laws requiring parenl notification r minors getting abortions. at the time,id you kn that the fund was filing this brief? >> no. no scific brief. obviously, it wasnvolved in litigati so i knew generally they were filing briefs,ut i

wouldn'tnow until after the fact tat a bef was actuly filed. but i wouldn't reiew it. >>the same question on this. at the time did you kno that the brief made this argument at the tme did you support the nd filing this brf and made the argumt and at the tim did youoice any concern, objection, disagreement or doubt abt making this argent? >> no, cause i never reviewed the brief. >> there's fine. i'm going to establish this up --n another case, theund argued against a 24-hr waiting periodor obtaining an abortion. so again, tse question at theime did you kn that the fund was fili this brief? d you know that the brief made this argument? did y support t fund fing this brief tt made this argument and did y voice any ccern, objection, disagreeme or doubt abouthe fund filing this brief or making this argument? >> for the sameeason, no. >> ay. now, judge, i'm gng to be very ea on you now because i

invid constituents in utah to submit questions d got an overwhming response. many of them submitted questions about the second amendment and other issues that have already en discussed. but onconstituent asked whether you see the courts especially the sueme court as an institution for resolving perceived social justic and equities anddadvantages. now, pase addrss this both in terms of the justices' intention and the effe of their decisions. at was the question. i tught it was an interesting question. >> no, that's not the rolef the courts. the role of e courts is to terpret th law as coness writes it. it may be the effect in a particular situaon that in the cort doing that in giving effect to congress' ient it has thatutcome. but it'sot the role o the judge to create that outme, it's to intpret what congress is doing a do what congress wants. >> gat.

one final queion, judge. you have described your judicial philosohy in terms of the phrase fidelity to the la woulyou agree with me that both majoritynd descending justices in last year's gu rights decision in th heller case were ing their best to be faithful to theecond amendment? >> -- hstory -- how precedt had analyzed it, yes. >> okay. in other words do you beeve that theyere exhibiting delity to the law as they understood it? >> yes. ye >> okay. then i take it that you would agree that the justices the majority we not engaging in some kind of right wing jdicial ctivism that some have charactized the decision,is th fair to sa >> it i fair for me to say tt don't view whaa court does asctivism. i vieit as each judge

principally terpreting the ssue before them on the bis of the law. >>great. let me just ask yoone other constuent question, it's a short one. another constituen asked,hich is more importantr deserves moreeight, the constitution as it was originally tended, or newelegal precedent? >> what governalways is the constitutn -- >> yeah, which is more important or deservesmore weit? the actual wordngf the constitution as it was originally intend or newer legaprecedent? >> the intent of the founrs were set for in the constution. they created the wds, they createthe document. it is their words at is the mosimportant pect of judgig. you follow at they saidn eir words and you apply it t the facts you'rlooking at. >> well, thank you, judge.

i'll give back the mainder of my time, mr. cirman. >> thank you. thank yu. i just wouldote we do havehe record fm -- from the puerto rican legal defense an education fu iwhich they say nether the board as a wholenor any indidual member selects liigation to be undertaken or controls ongoing litigaon. i just think that should very, very clear here. probably why they get suppor frm the united way and a numb of other organizions. senator grassley? >> good morning, justice judge sotomayr. yesterday, you sai you would ke a look at bake versus nallys.

you said y hadn't read baker in a long me and would repo back. you aded that if baker was precent you would uphold it sed upon stare decisis, consistent wi roe vs. wade, and grisld and many others that y mention this week. baker inlved an appl from the minnesota spreme court which held that a minnesota law prohibiti same-sex marriage did not violate the first, the eighth, theinth or the 14th amendment to the constitutin. the supreme courtn a very short rulin concluded on its merits that "the appeal is dismissed for want of substantial federalquestion". basic remains the books as precedent. ll you respect the court's decision inaker based upon tare decisis and if not, why not? >> as i indicad yesterday, i didn't remember bakernd if i had stued it it would have been in law school. you raised the queson and i did goack to look at baker. in fact, i don't thk i ever

read i even in law school. baker wasecided at the time where jurisdiction over federal questions was mandory before the preme court. and the diosition by the supreme court i belve was with -- at you related, nator, which is a dismissal of the appeal raised on the minnesota statute. what i have learned is t question of its what the aning of that dismissals. is actually aissue that's beg debated in exisng litigation. i indicated yet, -- indicated yesterday, i will follow precedent according to th doctrine of sre decisis. i cat prejudge what that precedenteans untilhe issue com before what a prior decision of the court and

its meang before it comes before me as audge or it should happen. because th question is pending before a number of courts, the aba would not permit me to comment on the meritsof that. but as dicated, i affirm thatith each holdi of the court to the extent it is pertinent to the issues before the court, itas to be given the effects of stari decisis. >> call i suppod to interpret what you just said as anything different tn what you said over the lastthree days in regard to kelo or roe or griswold or any ofthe other predents that you say are precedents or it the same tone you mentioned in previous days with previous precedence

under stari desis? >well, those cases he holdings that areot open to dispute. he holdings are what they are. their application to a different situation wil differ onwhat facts the situation present. he same thing with the nlson cae, which is what does the holding mea and th's what i understand is being litigated because it w a one-line decision by the supreme cort and how it apples to a new situaon is what's also would come fore a ourt. >>ok. my last question for your appearance before our committee iolves a word i don't think that show u here yet. vaums and it's question that i ked judge roberts. and jtice alito.

and it comes from a conveation i had, a dialogue i had at a decemb hearing when judge souter was before us, now justice soutr, invving the term"vacuums in law" and i thinkthe term "vacuums in w" comes from souter himself as i wi read to you in jt a moment. i probed judge souter about how he would interpret the constitution and statuto law, in his response justice souter talked about filling vacums lef and can give y quotes from i guess 1990 but i will read four or five lines of judge souter speakin to this committee. because in fact the ngress willace the responsibility that goes wi the 14th

amendment powers, then by defition there is to that tent not going tbe a kind of vacuum of responsibility created in which t courts are going to be forced to take on problems whichsometimes in the first instance might bebetter addressed b the political branchs of vernment. bo prior to that and after that judge souter talked a lot about maybe the crts neededo fi vacuums. do you agree with juice souter? is it appropriate for the crts to fill vacuumsn the law? let me quickly follow it up. do yo expect that you will fill vacuu in the law left by coress if you're confirmed to an aociate justice? >> senator grassley,one of the thingi say to my students when i'm teaching, brief writing, i

art by saying t themt's very danrous to use analogies because they're always imperfect. iwouldn't ever use juice soer's words because they are hiwords, not mine. i try alwayso use, and this is hat i tel my students to do, use simple words. explain what yore doing without analogy. just tell them what you're doing. and what i do is not scribed inhe way, or i woudn't scribe it in the wayustice souter did. jges apply the la ty apply the holdings of precent. and theyook at how that fits into the new facts before them. but you're not creating law. if that was an inten that justice sout was expssing, and i doubtit, that's not what

jges do. juges do what i jst describe d tt's not in my mind acting for coress. it is interpreting coness' intent as expressed in a statute and applying itohe new suation. >> thank you. i'm done, mrchairman. >>s thank you very much, senat grassley. senator kyl? >> yes, sir. i am not sure how long this will take. but judge i think maybe we're us the president analogy talked about in my very first queson to you wemay be in the 25th mile of the marathon and i might even ersuaded to have a littlempathy fo the last mile here. i think y are just aboutdone. i wanted togo over three quick things. t first one the exchae we had this mrning regardng the decision in ricci where you insisted thatou are boundby supme court d second circuit precedent. iuoted from the preme court decision to the effect that i

believe th that contradicted your anwer. if you have anything fferent to s than what you said this morningi wante to give you anotr opportunity to say it. we don't needto replow the sa grnd. is there athing different you would like to offeron that? >> senator, after each round i go to theext moment without actually looking at he transcript i couldn't answer that question. it's jst impossib to right now. i am glad you are ging me the opportuni, but i wouldeed a pecific question as to something said and what i meant before i could respond. >> all righ since will probably have a few qstions as foll-up in writing and you will be providing us answers tothose, maybe the be thing is just to ask general questi. or if there is something specificthat i can relate i to and then you c respond in that way. >> than you, sir. >> you're very welcome. now theecond question has t do with the second amement.

in the maloey case, you held that it was not incorpated into the 14th endment. well, maybe i shld ask y what that means. lete askou in two separate situations. as a practical matr. if the supreme cou does n review that issue, then is it thease that at leas in the secd circuit and t seventh circt the state in t second and seventh circuit, those statesould pass ws that restrict or even pohibit people fr owning firearms. >> i did no hold that it was -- i w on a panel that viewed supre court precedent and secondircuit precedent as hoing that fact. >> right you can't talkn an solute. theralways has to be a reas

for why a state acts. and there ao has to be a reas for thextent of the rulation the state passes. andso the question in maloney for us was a very narrow question way was, are the num chuck scks and i have described them preciusly as martial art sticks tied together as a belt if you swing them as somebody comes bythere can be if not serious, deadly force in some situations. whetherhe state had a reason cognized in law for determing that it was illega to own those sticks. the next issue would be whats the nature of the allationnd how does it comport wth the reason that the estate- state

gives as the reon for what it did. absolute regulatin, it's not what i would answer. >> excuse me i appreciate ur answer. wt would be the test that wod be applied by a court in the event that a state said because of the dangerthat firearms present to thers, e're going to require that oly lawenforcement personnel can own fiarms in our state. and someone allenged thatas an afront to their rhts they y the federal governmentcan't take t right away because of the second amendmet, what would the test be that the courtwould applyo anaze the gulation ofthe state? >> wl, that's very similar, althou not exactlyf i understood it to heller, e fac in heller. and the court there said that the regulationn d.c. was

oader than the interests asserted. that question in aifferent state would depend on the circumsnces. >> excusee for interrupting. is there no standard? we are familiar with the strict scrutiny test and so on, is there a standard whe the court would use to examine the state's ght to impose such a restriction givenhe second endment would be dmed not incorporated? >> in maney the cort addressed wheer there was a viation of the equa protection statute. eal protection of the 14th amendmt and determined the rational basis review. now that i understand what you a asking about the standard of review. >> i uerstand that. of the tests the court applies, the rationalasis is the lst difficu of states to meet in jusfying a reulation, is it t?

>> i'm n going to be difficult th you. it's the one where you don't need an ect fitbetween the exact iury that yore seeking to remedy and the legislation. so it does have more -- >> flexibity? >> fexibility is the wrong -- more deferee to congressional findin about what -- >>or state w. >> exactly. >> younow that the general rule that theational basis test is the least intrusive o a state' abilityto regulate or strict scruty is the most intrusive n the state's ability. that a fair characterization? >> it is a fair characterization when you ha strict scrutiny the government's legislation mu be ve nrowly tailored. when the rational basis ther is

a broader breadt >> between the applications of the second amendment tohe district ocolumbia for exale, compared to a situation in which a state or a city imposed a regulation on the control of firearms, tt it uld be much more likely that t court would uphol the state's aility or the city's ility toegulate that that it would in the abstra i'm taking about, than a federal attempt to regulate it under the second amendment? >> that's the problem within the abstract. because what the urt would look atis whever ate legislativeindings there are an the fit between the findings and the gislation. >> a i apprecite that you are notoing to, without knong t facts of each case, you can't opine. as a again propotion if the amendment i incorporatedt

will be much mor difficult for a government toimpose a andard than if it is not incorporate >> well, the staard of review, even under the incorporatn doctrine was actuay not deced in heller. d thatissue wasn'tresolved. what that aswer will be is actually an on question that i couldn't even discuss in a broad tm, other th to jst explain that -- >> all right, lete ask you again to inteupt we are less than two minutesnow. if senator leahy says in vermont is not worried about the fwakt that the secondmendment isot incorpated. maybe i lived in new york or massachusetts or some oer stte i would worried. the question isk is, can you understand why someone w would like to own a gunould be ccerned that if themendment not deemed incorpored into

the 14thmendment as a fundamentalight that it woud be much mo likely that the state or the city in which that indidual lid cld regulate the aility to own a fiearm. >> it is very clear to me on the publiciscussions on this issue, that that is concern for many pele. >>he final questin. you e familiar, this goes to the foreign law sue. you are familia with the fference in the treatment o foreign law byhe u.s. suprme court i kennedy versus louisiana on e one hd, and in rop versus simmonson the other hand. in roper, e court ruled it wa cruelnd unusualto app the death penalty and dr substantially on foreign w. in kennedy versus louisina the adultonvicted of raping 8 year o child. and the same justices at write it in roperrote it was crl and usually to sentence the defendant to ath but cited n foren law whatsoever. some say the diussion of foreign l was left out of t

kennedy case because i actually cut agnst the majory's opinion. what do you think? >>i can't speak for w they did. i ca only do what you did, which to describe what the courts did and what ey said. it's impossiblefor me to sak about why a particular court acted in a particula way, or why a particular justice analyzed an isue outside of what the opinion said. >> i'll just tell you my vew is it kind of tell me if the court can find some foreign law that supportits opinion i might usit. if e opinion is on the oter side, then it doesn't. in my viewthat's one of th problemsith using foreign law, and i gather fr what you said eaier, you d't think the court shouldse foreign law either, except in casesf treedy and other similarly ppropriate cases. >> i d not belve that freign law shou be ed to deterne

the results under constitution law or american law, excep whe american law directses. >> thnk you very much. thank you,judge. >> thank you. senator graham. >> thank you, judge. i gue we do get to talk ain. en you look at the fundamental ght aspect of t second andment, you'll be oking at precedent, you'll be looking at our history. you'll be looking a lot of things. hopefully you talked to your godchild who isan nra meber. u can assimilate youriew of what america is all about when it comes toecond amendment. on thing i want you to know that russ feingold d lndsey graham reached the same conclusion a that speaks strong ofthe secondmendment ecause we don't reach the same concluson a lot. i want to you realizehe fundamental right of the scond amendment i important to people throughout e countryhether you own a gun or not.

and it is one of t things that when you look at, i think you wil find that amera, unlike oter countries has a uque relationship to the second amendment. today, kalid shei mohammed is appearing in ailitary tribunal at guantanamo bay and will be appearing bere a judge and there is a miliry lawyer and prosutor. and i havebeen an advocatend member of the legal commity for over years. to america and the rld who may bewatching this, i have notng butreat admiration and respect r thoseen and women who serve in our jge advocate corps who will be given the obligation by ouration to rder justice against people likehalid sheikh hammed. and iill sayhis alson this historic day. to those who wonder why we do is, why do we give him a

trial? why are w sooncerned about him having his day in court? why do we give him a lawyer wen we know what he would do to our people in his hands. i would just like to sayhat it makes us better thanhim. it makes us stronger, for to give the mastermind of 9/11 to give him his y in cour represented by couns and any verdict that comes h way won't be based on predice or passion or religis bigotry, it wl be bas on fats. no let's talk about at this nation is facing. this congress, judge,s trying to rethorize themilitary commission act. tryig to find a way to bring juste to the enemies of this country ia way that willmake better in the eyes of the world and also mke us saf he at home. have you had an opportunity to

look at the decisions and those cases? >> i have, sir. >> yo will be called upo in the future if youet on e cou to pass me judgment over the enactmentsf congss. en it comes to civilian crinal law do you know of a concept in civilian law that wl allow someone to be held in criminal law infinitely without trial? >> when you're talking about civian criminal lawyou are talking aut domestic criminal prosecutio. after conviction they are often sent -- >> i am talking about you are held in jail without a trial. >> the speedy trial act and tre are constitutional principleshat require a speedy trial. so answer to your question, no. there is no -- >> that is a corct statement

of the law judge, in my inion. you cannot hold someone in domestic cminal settings indefinitely without tal. under mitary law, the law of armed conict, is there any requirement try in a court of law every enemy prisoner? there you hav andvantage on me, because -- i'm sorry. >>air enough. the point i'm tryin to make and che if i am wrong, you will have some te to do this. as i undstand military law, if we as a nation, o ofur airmen is dwned in a foreign land, held by an adversary, it is my understanding thate can't demand uder thegeneva conventio that that airman o american soier go to a is

ciilian court. ife have a pilot in the hands 69 enemy there is no requirement for tem to take that airm before a civilian judge and i think that's the law. there is no reirement under military or the low-arm confli, to have civilian judges review the status of our prisoners. at's a right that we doot ssess. the question for the countryand the world, if peopl who operate outside of the law o armed conflict that don't wear uniforms, are ty going to get aetter deal than the people th play by the rules? as we discuss thse matters, i hope you take into account-a th there is noequirement to try everyoneeld as an enemy prisoner. a do you believe that there's a requirement in th law that at a certain point and ti that a prisoner has to be released, an enemy prisoner, just due to t passage of tim

>> ian only answer th question narrowly. an narrowly because the court's ldings have been narrow in this area. first, military commissions and oceedings under them have been a part of the untry's history. >> right. >> and so there's no question that they are apprriate in certai circumances. >> and judge, they' have to render justice andeet the standar of who we are. my pot to some critics onthe right who observed to my view we ought to provide mo capacity, wherever the flag ies in whatever courtroomhere is sometng attached to the flag we will try to crea a comssion coistent with the valueof this county. i wan to let you know der traditial military law,t is not required to let someone go

who is properly detain as part of the enemy force because of the passage of time judge, it would be crazy f us to pture someo, give them dequate due process, indendent judicial revi and the judges agree with the miliry. you're partf alaeda and you represent a danger and sayat a magic point and time od luck you can go now. the peop thate're fighting, if some of them are let , they're goingo tryo kill us all. and it dsn't make us a better nationo put a burden upon ourselves at no one else s eraccepted. so what mygoal in working with my cleagues is to have a ratnal system of justice tt willake sure thatevery detainee has a chance to make the argument i'm being improperly ld, have a dayin court, have a reew by an independent judiciary, but w do

not take it so far as we can't ep an al qaeda mber in jail untilhey die. because some of them deserve to be in jail until ty di and i want the world to understand that america is not a bad place because we will hold al qaeda meers under a proce that is fair, transparent til ey die. my message to those who want to in this organizaton or are thinking about joing it, is that you c get killed if yo join, and you may wind u dying in jail. as this country and this congress comes to grs with how to deal with an enemy that doesn't wr a uniform, that doesn't follow a rule that would kill everody they could get teir hands on in thename of religion, tha n only we focus senator whitehouse o

uphoing our vues, that we focus on t threat this country faces in an unpcedented manner dge, my last wordso you will be -- if y geton this court, and u look at themilitary commsion act that the congss is about to pass, when you ok at whether or not habius sould be appliedto a wartime battle-fled prison,please remember, judge that we are not talking about domestic criminals who robbed a liquor ste. we a talki about people w have sned up for cause that every bit ngerous as any enemy this country h ever faced, and that this congress, the voice of the aerican pele who stand for re-election,has a very difficul assignment on its hands. ere areanes for the

xecutive branch, judicial and congreional branch, evenn a time ofwar. please,judge, undersnd that 535 members congress cannot be the comnder in chief, and th unelected judges can't run the war. thank u, and god speed. >> thank you, senator. >> senator. >> you're almo through, judge. i nt tosk three quk items that was not able to get to earlier. for your bief comment. you wrotein 2001 that neutraly and objecvity in the law a a myth. you saidhat you agreed that "there is no obrvivetance

b only a series of objectives. no neutrality or escape from judging. would you explain wh that means? >> in ever singl case,and nator graham gavehe example in his opening statement there e twoarties argung dierent perspectives on what the law means. that's what litigion is out. nd what the judge has to do, is choose the perspective that's going to apply to that outcome. so there is a choice. you're going to rule in someone'sfavor, you're goi to rule against someone's vor. that's the perspective orhe la ofneutrality. you can't just thw up your has and say i'm not goingo rule. judgesave to choose the answer to the questn presented to

them. and so that' what that part of my talking was about. that there choice in udging. yohave to rule. >> u characterize inour opening statent that your judicial philosohy is one of delity to the law. would you agree both e mority and the assenng justices in last year landmark gun case, d.c versus hler, wereach doing mare best to be faktfuto the text and history of the amendment? do you believe ey we exhibitsidelity to the law? >> i think both were lking at theegal issue before them. looking at the te of the secon amendment andooking at its hisry. looking a the cot's precedent ovetime in trying to answer the qution that was before them. >> do you think it's fair to characterize the five justices

who affirmed the right to keep andare arms as engaged in righwing judicial activism? >> i n't use that wordor judging. i avoi labels anyindnd that's why i don'tike analogies d why i prefer in briefriting to talk about judes interpretinghe law. >> what about the 10 democratic stores, including senator feingold who has been mentioned earlr, who joined the brief to the u.s supreme court urging the court to recognize t individual right to keep and bare arms. do you think by encouraging an individual right to keep and bare arms that somehow these senators were eouraging the cot to engage in right-wing judicial activism?