are you a legal realist? are you an originalist? are you a strict constructionist? and basically she just pretty much says the words are the words, and just like applying the law to the facts of the case, she would apply the words of the constitution to the facts before her. >> across the board she is defying labels. doesn't want to be labeled. and when they asked her and they tried every witch way imagined. how would you rule if, what do you think the court should do under such and such a circumstance. and i think in every single instance she said i can't answer that because i don't know. >> and she won'tity size. she won't criticize any fast decision, won't criticize any justice's particular opinion. she has been extremely careful. >> this might be the most important information of the day, marsha, before i ask you any more questions.

asking viewers and visitors to our website newshour.pbs.org and we have answers. perry mason came up and we know that judge sotomayor watched perry mason and that's what inspired her to be a prosecutor although perry mason was a defense lawyer. for those of you are too young, it is a popular show i watched as a children. >> i did, too. >> two of the viewers, sandy diamond in st. louis, missouri and paul lenei in minneapolis sent in the answers there were two shows in the perry mason episodes where perry mason lost to the prosecutor, mr. burger. one of them was the case of the terrified typist. and the other one, they both came back with the answer, the case of the deadly verdict. 1963. so this dates both of us, the fact that we remember back

somewhere in that vicinity. you remember i think it was al -- senator franken saying if anybody wants the information, we have it here. >> i thought he also made a good point that he was surprised it was the perry mason show that inspired her to be the prosecutors since perry mason was a defense lawyer and did win all but two of his cases. >> and i think she said at one point well, i figured -- she quoted, i think, burger the prosecutor as saying it is so important to do this for the people and she was inspired about that. and there was something very noble about that. marsha, a couple of questions that come in. this is from ann congelton in broo brookline, massachusetts. did the temperament cited yesterday have anything good to say about judge sotomayor? i think one of the senators referred to that. >> yes, it did have.

i think almost an equal number of comments that were good about her. that she is very engaged in arguments. very prepared. she is a tough questioner. brilliant. they were positive comments to counter balance the negative comments. >> because what one of the republican senators yesterday, lindsey graham basically cited only the negative comments. >> and i started to mention that our viewers might want to listen to the testimony probably tomorrow that's given by the american bar association representative. the american bar association has, for many years, rated supreme court nominees on a number, in a number of different categories and they do this by personally interviewing not only the nominee, but many, many

lawyers, colleagues who have worked with that nominee over the years. and one of the areas that they measure the nominee is temperament. she did receive their highest rating, so i would have to assume that she did well in that category or else it wouldn't have made the highest rating. but i think they will be questioned, they will give more information about that. >> i want to point out that our pbs news hour coverage of the hearings will conclude once judge sotomayor is finished on the stand. we have been told that her testimony will go on a bit longer today, into the late afternoon, and then it will resume tomorrow morning. we will carry her appearance before the committee as long as it takes place. we do not at this point though, there are no plans for us to cover live the testimony from the witnesses. the bar association, the representatives of the firefighters from new haven and

others. i think there are an equal number of witnesses on each side. but it will be available online. >> online. on many, many outlets. >> you can count on the fact that the news hour website you can go there and it will tell you how you can follow the hearings. one other question i wanted to bring up at this point. this is from an a.e. stewart in nevada city, california. why has no senator questioned sotomayor with regard to unequal protection of corporation versus individuals under the constitution? it seems there is a right-wing focus on abortion and guns that spins the hearings away from other issues of equal protection. >> well, i think in this hearing in particular, and as i said earlier, there were certain defined issues that both sides

wanted to focus on. and the viewer is absolutely right that very little attention is given, not only in this hearing, but in past hearings, to issues involving corporatio s corporations. and their rights as entities under the constitution. not only under equal protection, but questions of first amendment speech protection, corporate speech. those things have come up in the past, but see have not heard -- >> they are not coming up. >> we third virtually little about first amendment and not only speech but religion. this game plan is being followed to a tee. >> judy: i think so and the democrats certainly have an opportunity to bring up many of those things. in many instances what the democrats are doing is asking questions that allow her, as you put it yesterday, do a little rehabilitation. they will come back if they think an area is covered that left her open or something

wasn't explained they will come back and give her an opportunity to talk about it again. >> i think that's true. they are also given they are questions that basically allow her to show her knowledge of certain areas of the law, certain precedents. they do have some issues they are very interested in like national security, separation of powers. and they've tried to get some comments along those lines. senator feinstein, senator feingold, senator durbin tried very hard. but she is going to be take it that these are issues that are going to come before the supreme court, so she won't comment. >> judy: by the way we are in a breach recess that the committee is taking. and judge sotomayor has not yet come back into the room but some of the members of the committee have. this reminds me that senator ted kaufmann who is filling out the remainder of the term of vice-presidented byine,

delaware, he was many yearsed bien -- in year's biden's chief of staff. and he asked her who her corporate clients were and that is a piece of her life we haven't heard much. >> that goes back to one of the questions why there seems to b little interest about corporations and the constitution. and he's very interested in financial regulation because of the economic crisis and why he was interested. >> welcome back, judge. >> judy: we are back to the hearing. >> and go to senator feingold and you are recognized for up to 20 minutes. i keep adding the "up to" and hoping that somebody will follow my example. i do mean nobody will be cut off before 20 minutes. >> thank you, mr. chairman. i understand and would like to

begin using my time by asking that a letter from former members of the board that describes roles of the board members does not include controlling litigation. i ask unanimous consent. >> it will be part of the record. >> judge, thank you for your tremendous patience. i will talk about the recent court suspicion in caperton versus mars massey. and i consider it a significant case that bares on the fund of special interest money that threatened to undermine our justice system. john grisham used them for the "the appeal" and returning a $50 million verdict for a large coal company. and appealing he spent $3 million to elect brent benjamin to the court. and it was more money spent by other financial supporters. and he won the election and was

a supreme court justice and he voted to overturn the $50 million verdict against the main campaign contributor. and twice refused to recuse himself despite his interest. and last month the supreme court felt that that was intoll shl under the constitution due process of law. and the court anoted that most states adopted codes of judicial conduct that prevent this kind of conflict and i commend the supreme court's plan to have rules with additional safe guards to protect impartiality. you have been a judge for years and probably saw examples where you judge should have withdrawn. and in your opinion what additional steps should the judges and legislatures take to ensure the judiciary is held to the highest standards and the litigants can be confident that their cases would be handling i

am -- impartially. >> i find it inappropriate to make comments to congress about what standards they should hold judges to or litigants to. that's a policy choice at that congress will consider. i note that the american bar association has accompanied of conduct that applies to litigants. the judicial code has accompanied of conduct for judges. and as you noted in the state system where judges are elected, many states are doing what i just spoke about, making -- passing regulations. capertown was a case that was taken under the local rules of the supreme court, presumably that exercises supervisory

powers over the functioning of the courts. and it presented obviously a significant issue because the court took it and decided the case. judges, lawyers, all professionals must on their own abide by the highest standards of conduct and i have given a speech on this topic to students at yale at one point saying the law is only the minimum one must do. personally one must act in a way in cases to ensure that you're acting consistent with your sense of meeting the highest standards of the profession. >> thank you judge. i am sure you know the last day of the term the supreme court ordered a pending case involving federal election law, citizens

united be reargued in september. it is quite possible you will be a member by the court them. i do not intend to ask you how you would rule, but i do want to express my very deep concern about where the supreme court may be heading and pose a general question to you. 2003 the court in a 5-4 ruling up head the rule against constitutional challenge and i believe it applied the court's previous precedence and recognized that congress must have the power to regulate campaign financial finance to address problems of corruption and the appearance of corruption. since the arrival of the two new members they seem to started in a true direction striking down or significantly narrow are two organizations the millionaires amendment in the davis case and the provision in the wisconsin right to life. several justices argued incorporations and those have the same rights, and versus the michigan chamber of commerce rejecting that should be

overruled. and austin is premised on what i believe is an absolutely reasonable conclusion that the political activities of operations may be subjected to greater regulation because of the legal advantages givenhd to them by the states that allow them to amass great wealth. and scheduling reargument in citizen europe nighted th the -- citizen united they addressed if austin should be overruled. and it may usher in unlimited corporate spending in elections since the nation has not seen since 19th century without addressing the citizens you a europe nighted case and i ask what they prove about the rights of corporations and the current state of the law is as far as corporate participation in elections is as you understand it. >> senator, i have attempted to answer every question that's been posed to me. you have noted that citizens

united is on the court's docket for september, i think september 9th. if i were confirmed for the court, to the court, it would be the first case that i would participate in. given that existence of that case, the very first one, i think it would be inappropriate for me to do anything to speak about that area of the law because it would suggest that i am going into that process with some prejudgment about what precedent says and what it doesn't say, and how to apply it in the open question the court is considering. i appreciate what you have said to me, but this is a special circumstance given the

particular case. >> i would probably say the same thing when i was were in your shoes given the facts and what they are. i appreciate the chance to say what i wanted to say. and with that, mr. chairman, i will use up less than half of my time. >> thank you. i think you have set a fantastic example. [laughter] >> i commend you. senator grassley. >> i assume that i get the time that he didn't use. >> no, no. [laughter] after you demonstrated, was it yesterday, that you demonstrated that you tend to turn people on, we don't need anymore excitement, senator grassley. we want it as low-key as possible. you have you to, up to 20 minutes. >> now, i believe that i'm going to ask you something that you have never been asked before during this hearing. i hope. i'd like to be original on

something. i want to say to you that there's a supreme court decision called baker versus nelson, 1972. it says that the federal courts lacked jurisdiction to hear due process and equal protection challenges to state marriage laws "for one of substantial federal question" which obviously is an issue the courts deal with quite regularly. i mean the issue of is it a federal question or not a federal question. so, do you agree that marriage is a question reserved for the states to decide based on baker versus nelson? >> that, also, is a question that's pending in many courts. as you know, the issue of marriage and what constitutes it

is a subject of much public discussion and there's a number of cases in state courts addressing the issue of what -- who regulates it under which terms. >> can i please interrupt you? i thought i was asking a very simple question based upon a precedent that baker versus nelson is based on the proposition that yesterday in many cases, whether it was griswold, roe v. wade or chevron or other cases you made reference to. the casey case, gonzalez case, the legan creative leather products case, and you said these are precedents. now are you saying to me that baker versus nelson is not a precedent? >> no, sir. i just haven't reviewed baker in

awhile. and so i actually don't know what the status is. if it is the court's precedent as i located in all might have answers, i will apply that precedent to the facts of any new situation that implicates it. >> what process would you go through if a marriage case to the supreme court, whether baker versus nelson is precedent or not. because i assume if it is precedent, based on everything that you told us yesterday, you're going to follow it. >> the question on a marriage issue will be -- two sides will come in. one will come in and say baker applies. and another one will say this court's precedent asupplies to this factual situation, whatever the factual situation is before the court. they will argue about what the meaning of the precedent is, how it applies to the regulation that's at issue, and then the

court will look at whatever it is that the state has done, what law it has passed on this issue of marriage, and decide ok, which precedent controls this outcome. it's not that i am attempting not to answer your question, senator grassley, i'm trying to explain the process that would be used. again, this question of how and what is constitutional or not, or how a court will approach a case and what precedent to apply to it depends on what is an issue before the court. can the state do what it did. >> can i interrupt you again? following what you said yesterday, that certain things are precedent, i assume that you've answered a lot of questions before this committee about each after you said that certain things are precedent.

of things that are going to come before the court down the road if you are on the supreme court. you didn't seem to compromise or hedge or those things being precedent. why are you hedging on this? >> i am not on this because the holding against baker and nelson, as a holding it would control any similar issue that came up. it's been awhile since i've looked at that case, so i can't as i could with some of the more recent precedent of the court or more core holdings of the court on a variety of different issues, answer exactly what the holding was and what the situation would be that it applied to. i would be happy to, senator, as a follow-up to a written letter wore give me the opportunity to come back tomorrow and just address that issue. i have to look at baker again. >> i would appreciate it. >> it's been too long since i've look at it. so it may have been, sir, as far

back as law school. >> you were probably in grade school you were at that time. >> that i looked at it, sir. >> i want to go on, but i would like to have you do that. what you suggested you would answer me further after you studied it. i have a question that kind of relates to the first question. in 1996 congress passed and president clinton signed into law the defense of marriage act that defined marriage for the purpose of federal law as between one man and one woman. it also prevents a state or territory from giving effect to another state that recognized same-sex marriages, both provisions have been challenge as unconstitutional and federal courts have you held both cases. one is a wilson case, one is a bishops case. the district court, yeah, district court. do you agree with federal courts

which have held that the defense of marriage act does not violate the full faith and credit law. >> it is similar to the austin situation, but the aba rules would not permit me to comment on the merits of a case that's pending or impending before the supreme court. the supreme court has not addressed the constitutionality of that statute, and to the extent that lower courts have addressed it and made holdings, it is an impending case that could come before the supreme court. so i can't comment on the merits of that case. >> have you ever made any rulings on the full faith and credit clause?

>> i may have. but if your specific question is have i done it with respect to a major related issue. >> on anything in the full faith and credit clause. >> i actually have no memory. >> that's ok. you can stop there, that's ok. now i am going to go to a place where senator hatch left off but i'm not going to repeat any of the questions that he asked. but there's one that i want to ask. and i feel a little bit guilty of this. my dad used to have a saying to us kids that we're harping on something. he says when are you going to quit beating a dead horse. but i want to ask you anyway. you also wrote "i wonder whether achieving that goal is possible in all or even in most cases. and i wonder whereby ignoring our differences as women and men

of color, we do a dis service both to the law and society". the certain i have about the statement is indicating that you believe judges should and must take into account gender, ethnic background, or other personal preferences in their decisionmaking process. is that what you meant? and i want to follow it up so i don't have to ask two questions. how is being impartial a disservice to the law and society? isn't justice supposed to be blind? >> no, i do not believe that judges should use their personal feelings, beliefs or value systems, or make -- to influence their outcomes. and neither do i believe they should consider the gender, race or ethnicity of any group that's

before them. i absolutely do not believe that. with respect to yes, is the, is the goal of justice to be impartial? that is the central role of the judge. the judge is the impartial decisio decisionmaker before the parties that come before them. my search was on something else but i have no quarrel with the baitsic principles that you asked me to recognize nowhere quarrel sounds ekwichl -- ekwichl -- equivical. i do believe in those things absolutely and that's what i have proven i do as a judge. >> then the last one on this point of another remark you made, you also stated that you "further accept that our experiences as women and people

of color affect our decisions." and then that "personal experiences affect the facts that judges choose to see." and that "there willing some differences in my judging." and "differences in judging" is in paren that these based on my latina hair -- heritage. do you believe that judges should allow that to affect their decisions? >> no, sir, i do not. absolutely not. >> i move on no another ai can't. this is the senate questionnaire you wrote in response to a question about judicial activism. "intrusions on the judge upon the other branchs of government should only be done as a last

resort and limitedly." is this still your position? and i follow-up when jud it be justified. for example what is an example of last resort? what is an example of "limitedly." >> the answer is, judges in the manner in which that question was responded to was to the extent that there has been a violation of the constitution in whatever manner a court identifies in a particular case, it has to try to remedy that situation in the most narrow way in order not to intrude on the functions of other branchs or actors in the process. the case that i was discussed in

my history has been the dove case where i joined the panel decision where the district court had invalidated a statute that -- found unconstitutional a statute that the legislature had passed on national security letters. our panel reviewed that situation and attempted to discern and did discern congress's intent to be that despite a isolated provisions that might have to be narrowly construed to survive constitutional review, it held that the other provisions of the act were constitutional. so the vast majority, contrary to what the district court did, and i am not suggesting that it