am describing but the court took a different view than whatq th circuit did. we upheld the statute in large measure to the extent we thought there were and found two provisions that we thought were unconstitutional, we narrowly construed them in order to assist them in effecting congress's intent. that's what i talked about in that answer. >> a little bit along the same line. in your law review articles you wrote that "our society would be straight-jacket eted were not the courts with the assistant of the lawyers constantly overhauling and i don't know if that is your emphasis or mine but i have it underlined. "overhauling the line and adapt -- i will start over again. "our society would be straight-jacketed were not the

courts, with the able assistance of the lawyers, constantly overhauling the law and adapting it to the realities of ever-changing social, industrial and political changes." explanation of the statement from you, i think you're saying that judges can twist the law regardless of what the legislature, the elected branch of government has enacted into law. it is kind of my interpretation of that. obviously or tell me you don't mean that, at least you know where i'm coming from. >> that interpretation is clearly not my intent. and i don't really remember those particular words, but i do remember it. i assume you are talking about returning majesty to the law and there i was talking about a broader set of questions which was how to bring the public's respect back to the function of

judges and i was talking about that judges, that lawyers have an obligation to explain to the public the reasons why what seems unpredictable in the law has reason. and i mentioned in that speech that one of the big reasons is that congress makes new laws. that was the very first reason i discussed. and also, that there's new technology, there's new developments in society. and what lawyers do is come in and talk to about oh, ok, we've got these laws, how do you apply them to this new situation? what judge does and that's why i was talking about the assistance of lawyers, is what you do is you look at the court's precedence, you look at what a statute says and you try to understand the principles that

are at issue and apply them to what the society is doing. and that was the focus of the speech. talk to the public about the process. don't feed into the cynicism that judges are activists, that judges are making law. work at explaining to the public what the process is. which also talked to part of my speech is what the judges can do to help improve respect of the public in the legal process. >> so the use of the world "overhaul" does not in any -- "overhaul the law" does not in any way apply usurpation of the law by the courts. >> no, if you look at what i was talking about is that society develops. we are not today what we were

100 years ago in terms of technology, medicine, so many different areas. there are new situations that arise and new facts that courts look at. you apply the laws to those situations but that is the process of judging which is sort of try to figure out. what does the law say about a set of facts that may not have been imagined at the time of the founding of the constitution, but it's what the judge is facing them. how do you apply it today. >> i want to go back to didden based on my opportunity to reflect on some things that you said yesterday. the time limit to file in didden was three years. mr. didden was approached for what he classified as extortion in november, 2003. two months later in january 2004 he filed his lawsuit. but under your ruling, mr. didden was required to file

his lawsuit in july 2002, close to a year and a half before he was actually extorted. so that doesn't make sense to require someone to file a lawsuit on a perceived chance that an order might occur. you also testified that the supreme court's kelo decision was not relevant to the didden holding, but your opinion in cursory passion which is a problem we addressed yesterday. states if there is no statute of limitation issue, kelo would have permitted mr. didden's property to be taken. it is hard to believe an individual's property can be seized when he refuses to be extorted without any constitutional violation taken place. it is harder to believe under these circumstances mr. didden did not deserve his day in court

or at least some additional legal analysis. can you please explain how mr. didden could have filed the lawsuit in july of 2002 before he was extorted november 2003? and also, please explain why a july 2002 filing would not have been dismissed because there was no proof that mr. didden suffered an injury, only an allegation that he might be injured in the future. >> the basis of mr. didden's lawsuit was the state can't take my property and give it to a private developer. because that is not consistent with the takings clause of the constitution. to the extent he knew the state, and there is no dispute about it, that the state has found the public use for his property. that it had a public purpose. that it had an argument with the

private developer to let that developer take the property he knew that he was injured because his basic argument was the state can't do this. it can't tape my property and give it to a private developer. the supreme court in kelo addressed that question and said under certain circumstances the state can do that if it's for a public use and a public purpose. and so his lawsuit essentially addressing that question came time years after he knew what the state was doing. the issue of extortion was whether the private developer in settling a lawsuit was engaging in extortion and extortion is an unlawful asking of money with no basis. but the private developer had a

basis. he had an agreement with the state. and so that is a different issue than the timeliness of mr. didden's complaint. >> thank you. recognizing the senator, and then we will recess until tomorrow morning. >> judge, let me first say that since this will be my last time in this hearing to address you, to say this has been my first confirmation for a supreme court justice. and you set a high standard that i may have to consider because there are possibilities of future vacancies. responding to our questions, being very open with us, and i think really demonstrating the type of respect for the process that has really shown dignity to you and our committee and i

thank you for that. i thanked you in the beginning for you're willingness to serve the public. as a prosecutor and as a judge, and now willing to take on this really incredible responsibility. and i just really want to emphasize that again. i don't know if you thought when you were being considered for this what would you have to go through as far as the appearance before the judiciary committee, but it gets better after our hearings i believe, so. let me ask you one or two questions if i might. i am going to follow on senato senator's question on certiorari. there is maybe 1% of the cases that are petitioned for the supreme court, actually will get an opinion from the supreme court and will be decided. now, the senator asked you what standards you would use and i really want to concentrate on the impact that a supreme court case can have.

i want to refer to one of your cases, the boyki n case which was a housing case where a borrower, you let an african-american go forward on a discrimination issue. and we have seen through history discrimination with minorities and housing. and it led to the fair housing act enacted by congress. the supreme court long recognized title 7, 8 of the head housing acts and start of the scheme of the federal rights laws enacted to end discrimination. but there are still major challenges that are out there. the predatory lending still takes place. it's hand during this housing crisis with the subprime mortgage market started towards minority communities. and i say that in relationship to the boykin case where i

agreed with your conclusions. not only could it affect the litigants that were before you but have an impact on industry practice if in fact there was discrimination and a case was decided by your court. the same thing is true in the supreme court and more so in the supreme court. it is the highest judgment of our land. and yes, you have to be mindful when you take a case on cert as to the impact it will have on the litigants. certainly you have to take into consideration if there has been different inconsistent rulings in the different circuits. it seems to me one of the standards that i would hope you would use is the importance of deciding this case for the impact it has on a broader group of people in our nation. whether it's a housing case that affect community's ability to get fair access to mortgages for homership or whether it is a case that can have an impact on

a class of people, on environmental or economic issues. and i just would like to get from you whether this in fact is a reasonable request as you consider certiorari requests, that one of the factors that is considered is the impact it has on the community at large. >> as i indicated earlier, we don't make policy choices that means that i would think it inappropriate for a court to choose a case because -- or for a judge to choose a case based on some sense of i want this result on society. a judge takes a case to decide a legal issue, understanding its importance to an area of law and to arguments that parties are making about why it's important.

the question of impact is different than what a judge looks at, which is what is the state of the law in this question. and how and what clarity is needed and other factors. but as i said, there is a subtle but important difference in separating out and making choices based on policy and how you would like an issue to come out than a question that a judge looks at in terms of assessing the time in which a legal argument should be addressed. >> and i respect that difference and i don't want you to be taking a case to try to make policy. but i do think the need for clarity for the community as to what is appropriate conduct well beyond the litigants of a particular case is a factor where clarification is needed should weigh heavily on whether the court takes that type of

case or not. there is just no one factor that controls the choice where you say i'm going to look at every case this way. as i said judges in -- i shouldn't talk because i am not there. but my understanding of the process is that it's not based on those policy implications of an outcome, it's based with on a different question than that. >> well let me conclude on one other case that you ruled on where i also agree with your decision. that's ford versus mcginnis and you wrote a unanimous panel opinion overturning a judgment finding in favor of the muslim inmate denied by prison officials access to religious meals marking the end of ramadan. and you head his fundamental rights were violated and the

opinions of the department of correction and religious authorities cannot trump the plain and sincere religious beliefs. the freedom of religion is a basic principle in our constitution as i said in my opening comments. it was wonder of the reasons why my grandparents came to america. the freedom of religion expression is a truly fundamental american right. please share your philosophy, maybe it is the wrong use of terms, the importance of the provision in the constitution and how you would go about dealing with cases that could affect that fundamental right in our constitution. >> i don't mean to be funny, but the court has held that it's fundamental in the sense of incorporation against the state. but it is a very important and central part of our democratic

society that we do give freedom of religion, the practice of religion, that the constitution restricts the state from establishing a religion and that we have freedom of expression in speech as well. those freedoms are central to our constitution. the ford case, as others i had in this area, recognized the importance of that in terms of one's consideration of actions that are being taken to be restricted in a particular circumstance. speaking further is difficult to do. again, because of the role of a judge, to say it's important, that it's fundamental and it's

legal and common meaning is always looked at in the context of a particular case. what is the state doing? in the ford case that you just mentioned, the question there before the court was, did the district court err in considering whether or not the religious belief the prisoner had was consistent with the established traditional interpretation of the meal at issue, ok. and what i was doing was applying very important supreme court precedent that said it's the subjective belief of the individual. is it really motivated by a religious belief? it's one of the reasons we recognize conscientious objectors because wean are aski a court not to look at whether there is orthodox or not, but to

look at the sincerity of the individual's religious belief and then look at what the state is doing in light of that. so that is what the issue was in ford. >> thank you for that answer. and again, thank you very much in the manner you responded to our questions. thank you, mr. chairman. >> thank you very much, senator cardin. as i noted earlier, we will now recess until 9:30 tomorrow morning. and wish you all a pleasant evening. thank you. >> judy: with that, chairman patrick leahy gavels the judiciary committee to a close for the day. they recessed until 9:30 tomorrow eastern time. a few minutes for summarizing we are catching judge sonia sotomayor leave. and we have been without air conditioning for the last few

hours and maybe that accounts for the weariness on faces of several people out there. let's quickly recap, marsha, what some of the republican senators were in the last round. senator grassley in particular pushing or probing, if you will. >> definitely. >> judge sotomayor. >> on one of the most controversial issues in society today, and that's same-sex marriage. he was following in the path of the line of questions about old precedents. and whether she considered them settled law. one of which is a 1972 supreme court decision that dismissed an appeal from a minnesota case involving a state law that prohibited same-sex marriages. the court dismissed it, but did not say anything on the merits. it simply said there was no federal question for it to take jurisdiction in this case.

but he wanted her to say that this was a precedent, settled law. she claimed that she really wasn't familiar enough with what has happened since that 1972 decision and she would need time to look at at that. but he also raced the issue of the defense of marriage act that is a federal law which also could face challenges down the road. everyone is aware that california has proposition 8 that prohibits same-sex marriages. and a federal court case was recently filed challenges proposition 8. so i think senator grassley is very aware that that issue is going to head to the supreme court, probably very quickly. >> marsha, it's interesting that it's not just the republicans, but the democrats who are pushing her to take -- if not take a position to explain under what circumstances the supreme court would take a number of different issues. so she's having to say to all of them no, i can't get into that,

because i don't know if i am on the court how we would make that decision. >> that's true. both sides have concerns. th democrats have concerns about where the current court is headed and why they raise issues on vetting rights. and senator feingold in the second round raised questions about campaign finance. they all have issues so to speak. >> and senator, in fact senator cardin of maryland just in the last few minutes asking, asking some related questions as well. all right, we are going to wrap up our coverage today. our live coverage of the hearings and we will be back at 9:30 in the morning with television coverage. coverage online at newshour.pbs.org and coverage or many of your radio stations. i'm judy woodruff. see you tomorrow morning. thanks for joining us. decline .

it is the argument for taking out the new areas. >> imagine a stark and beautiful seascape dotted with drilling rigs. this coastline build up with a sprawling industrial infrastructure for oil and gas production. and fired analysts say would have a devastating impact. -- environmentalists say it would have a devastating impact. >> it will affect the whole chain. we are afraid it will destroy our life and the ecosystem. >> oil and gas have made norwegians reached it, but they feel threatened by the energy leviathan. >> the worst part of the exploration is the seismic survey. that is what we fear the most. the consequences are huge. fish disappear.

that makes it impossible official along the coasts. >> if the norwegian government wants the oil production to last, it will need new fields. norway insists its oil and gas industry has been environmentally responsible. >> we have done this in a way where we have been able reconcile the need for taking care of the environment, fishes. >> the world's energy appetite is immense and rising. the needs of the industrialized west, rising china, india, brazil, now encroaching on this vast and precious area. there is growing concern about india's dwindling tiger population. they have confirmed they no longer have some and one national park. one park was a leader and the conservation of bengali tigress,

but to say all 24 of their big cats have disappeared, the second to confirm that all of its animals are gone. this can only add controversy, how old is too old to have a baby? the world's oldest mother has died, three years after she gave birth to twins at the age of 66 harriette del carmen bousada de lara conceived after lying about her age. >> maria del carmen bousada lied about her age. her twins were born when she was a week short of for 67th birthday, making her the oldest mother ever according to the guinness book of workers. -- guinness book of records. but she has died of cancer. her neighbors expressed their surprise today. >> i have often seen the

children, and they look terrific. their mother looked great, too. i used to see them and think, is that their grandmother? i was surprised when she said, no, i am the mother. >> the story of the former shop worker and oldest mother became a worldwide talking point. leading fertility experts condemn her actions as selfish and unnatural. her death will reopen the debate about the ethical limits of reproductive science. in spain and other countries, there is no absolute age limit for in vitro fertilization, but most clinics will refuse to treat women over 50. she once said she would look for an older man -- under man to bring up her children, there is no word about who will look after the twins. briefly, a reminder of the main news, all 160 passengers and crew have died as a caspian airlines plane crashed in the

north of iran. it was flying from the iranian capital of tehran to armenia, with mostly armenian passengers. no official cause of the crash has been given. iran has an aging fleet of planes and international sanctions make it difficult for them to obtain replacement parts. there have been a series of air disasters recently. thank you for being with us on "bbc world news." much more anytime you want it on bbc.com "bbc world news" was presented by kcet, los angeles. funding for this presentation was made possible by -- the freeman foundation of new york, stowe, vermont, and honolulu, the newman's own foundation, and the john d. and catherine t. macarthur foundation. macarthur foundation.