on scalia, if you will.chris: well, smart people are also independent people. pete, is there any chance she'll surprise us on something like rowe v. wade? there's a wonderful case of a liberal activist injurist leader, and we all thought he was another republican governor from california who put the japanese-americans behind fences. frankfort, another big surprise going to the right. >> well, i think the days of the big prices are gone. chris: really? >> yes. because before they're even nominated, their opinions, speeches, everything is so carefully scrutinized, that didn't used to be the case. certainly wasn't the ce with david souter, who did surprise the bush administration. chris: in this case we don't have a paper trail on rowe v. wade. >> that's true. she's made decisions on abortion pro tegs, funding for foreign organizations that provide abortions. the assumption is that the president never asks about abortion, but a the nominee does not want to be put in the position of saying before the nate, well,

to which thomas and scalia say, what part don't you understand? you have five people talking about 1791, talking about the crawford case and what was the semblance when the bill of rights was adopted, and the others who are talking about what makes sense in the administration of justice. this is the fourth time i have had this unusual split. you have the littlest verses the -- you have the literal legalist vs. the liberal legalist, who make up the majority who decide to cut back on the authority. and the most pragmatic justices was made of justice rehnquist, o'connor, kennedy and breyer. this is roberts, alito, breyer and kennedy in the pragmatist group. it is unclear where justice sotomayor will be. this may be an area where the court is shifting to the right, in favor of law enforcement, she was a prosecutor in the manhattan district attorney's office and this kind of grounding may make her less of the philosophical group, we do not know and she does not know. but the departure of justice souter, or the ideological lines are set up, leaves the c

but also on abortion scalia has said...calia's clearly pro-life and he's clearly in favor of overturning "roe v. wade." but i don't think scalia would rule... would... he wouldn't rule to ban abortion. because he would say "i'm going to vote to overturn "roe v. wade" because i think it's a clear misinterpretation of the constitution. there's no implicit or explicit right to an abortion in the constitution. and then i leave it to the legislature to decide what to do. now, this doesn't mean... you know, i think if you go through scalia's decisions, i'm sure you'll find cases where it seems like his personal biases are pushing his theory in one direction or another. but that's always going to be true. >> rose: you were not born a catholic. >> i was not. >> rose: you became a catholic. >> i became a catholic. >> rose: where do you differ with the church? on who dorsch? on abortion? on the death penalty? where where? >> i try not to differ on the church with w a general rule. >> rose: what the f you do. >> well, there are endles

justice scalia and thomas r. much more likely to vote with the members on the left whereas on the left ever joined any of the more conservative members of the court to create 5-4 majority. justice thomas is by far the most in -- by far the most interesting justice. they take precedence and thrown overboard because he thinks it is completely wrong and introduces a lot of new ideas into the law. and he will have a tremendous influence over time, maybe he won't. he does have a lot of very independent ideas. the last few statistics i will mention are when justices agreed to gather a lot. the chief justice and justice aledo agreed the most this term. on the left, justice stevens and justice souter has left the court ended at midnight last night that is the term "by the numbers. the statistics that i find most interesting. directionally, let me make a couple of points and turn to the cases i wanted a highlight. i mentioned the jurisprudence of actuarial as some -- actuari alism.

in the two cases, justice thomas and justice a scalia wrote the opinions. there were in such unusual lineups in the seven cases i'm talking about it. in the 5-4 cases, the five you'd expect and the four were the four youth expect. in the cases where the united states was a party, it won five of the six. in the other case, the united states was an amicus, and the side it supported won. it was 6-1, a high success rate even for the united states, which enjoys more success in the supreme court than any other litigant. in the five cases that can be characterized as true business cases, the business parties had a record of 3-1-1. the one at the end reflects the fact that in the antitrust case, you had businesses on both sides, one of them, the defendants won and the plaintiffs lost. if you include the two other cases where environmental groups sued the government, and lost, and if you take the view that a loss for an environmental group is a win for business, even though there was no business party in the case, you could say that businesses were 5-1-1 this term.

. >> it was a scalia argument. scalia wrote the majority in that. >> any other questions? >> with judge sotomayor possibly becoming justice this coming term, do you anticipate that advocates are going to have to change their litigation or argument strategies and how? >> has anyone argued before her here? >> i did some years ago, well, about four or five years ago. my experience was that she was very well prepared, she asked, you know, dead on, insightful questions and did so pretty forcefully. she wasn't going to allow her questions to be evaded in any way. so, i mean, in that sense i don't really foresee a big change. some other panel members may know some areas where her ideas may be different from those of justice souter's. i've had some people tell me that they think justice sotomayor will have some different views on punitive damages than justice souter has, but i'm not really aware of a lot of different areas where there'll be many differences. >> i would say that it would be unusual for a highly-skilled advo

[laughter]. >> so, he was directing to j justice scalia who was so flummoxed, why are you telling me i shunts buy green plums for my wife, i have never seen a green plum! and that is -- and you know, he wasn't trying humor but came across as terrible, terrible humor and it completely fell flat. in the end, maybe that is the bell for me to stop! but in the end, he lost the case, 5-4 and a lot of people think if true first amendment lawyer had argued the case it might have been 5-4 the other way and one quick post-script. the faction of fruit growers who objected to thomas campaign arguing the case were so upset they filed a malpractice suit against him. and one of their counts was that it was malpractice for him to fail to refer the case to a supreme court specialist. and i thought in a symbolic way, that that really symbolized that the supreme court specialty bar had arrived and it was so -- deemed so objectively better than the run of the mill lawyer that it even became a basis of a malpractice suit. the suit didn't succeed. there was a settlement. but, it seemed to symbolize that s

scalia's clearly pro-life and hs clearly i favor of overtning "roe v.ade but i don't think scalia wou rule... would. he wldn't rule t ban abortion. because he uld say "i'm goin to votto orturn "roe v. wa" because i thinkt's a clear misierpretation of the constitution. ere's no implicit or plicit rit to an abortion in the constitution. and then i leave it to the legislature to decide whatto do. now, this doesn't mean... you know, think if you go thrgh scalia's disions, i sure you'llind cases where it seems like his personal biases are pushg his theory in one direction or another. but tt's always going to be ue. rose: you were not born catholic. >> i was not. >> rose: you became a cathic. >> i became a catholic. >> rose: where doou differ with the church? on who dorsc on abortion? on the deathpenalty? where where >> i try not to difr on the chch with w a general rule. >> rose: what the f you do. >> well, there arendless and complicatedebates over whe catholics are supposed to defer to the chur and where they're not and youaw this withhe pope's encyclical

but also o abortion scalia has sa...scalia's clearly pro-life ande's clearlyn favor of oveurning "roe v. wa." but i don't think scalia wld rule... woul.. heouldn't ruleo ban abortio because hewould say "i'm gog to ve toverturn "roe v. de" because i think it's a clear minterpretation of the constitution. there's no implicit orexplicit ght to an abortion in the constitution. and then leave it to the legislature decide what to do. now, thi doesn't mean... y knowi think if y go tough scalia'secisions,'m sure you' find cases where it seems like his personal biases are puing his theory inone direction or another. but that' always going toe true >> re: you were not born a catholic. >> i was not. rose: you became a catholic >> i bame aatholic. >> rose: where do you differ with the church? on who dorsch? on abortion? on the death pelty? where where? >> i try t to differ on the church with w a general rule. rose: what the f you do. >> well, there are endss and complicated debes over where catholics are supposed to defer to the chu

the supreme court in the opinion authored by justice scalia questioned that it is a question that the court should consider. i'm just attempting to explain that u.s. versus sanchez was using fundamental in its legal sense that whether or not it had been incorporated against the states. with respect to that question, moreover, even if it's not incorporated against the states, the question would be, would the states have a rationale basis or a regulation it has in place and i believe the question is whether or not a prohibition against felons possessing firearms is at question, if my memory serves me correctly. but even justice scalia in the majority opinion in heller recognized that that was a rationale basis regulation for a state under all circumstances. whether or not there was a second amendment right. >> well, the district of columbia versus heller, the supreme court observed that it has always been widely understood that the second amendment like the third and fourth amendment had a presisting right. the court also observed this, "by the time of the founding, the right to bear ar

and justice scalia had this to say about irreparable harm. the counting of votes that are of questionable legality does in my view threaten irreparable harm to referring to president bush or candidate bush. and to the country by casting a cloud upon what he claims to be the legitimacy of the election. permitting the court to proceed on that erroneous basis will prevent an account, an accurate recount from being conducted on a basis later. hard to understand what recount there is going to be later. i wrote about it at the time saying that i thought it was an atrocious accounting of irreparable harm. hard to calculate, hard to calculate that. and my question, judge sotomayor, shouldn't the american people have access to what is happening in the supreme court, try to understand it, have access to what the judges do by way of their workload? by way of their activities when they adjourn in june and reconvene in october. this year, in september. wouldn't it be more appropriate in a democracy to let the people take a look inside the court through te

justice scalia and thomas r. much more likely to vote with the members on the left whereas on the left ever joined any of the more conservative members of the court to create 5-4 majority. justice thomas is by far the most in -- by far the most interesting justice. they take precedence and thrown overboard because he thinks it is completely wrong and introduces a lot of new ideas into the law. and he will have a tremendous influence over time, maybe he won't. he does have a lot of very independent ideas. the last few statistics i will mention are when justices agreed to gather a lot. the chief justice and justice aledo agreed the most this term. on the left, justice stevens and justice souter has left the court ended at midnight last night that is the term "by the numbers. the statistics that i find most interesting. directionally, let me make a couple of points and turn to the cases i wanted a highlight. i mentioned the jurisprudence of actuarial as some -- actuarialism. under chief justice roberts, it has taken

you've been fairly critical of justice scalia's criticism of the use of foreign law in making decisions. and i would like for you to cite for me, either in the constitution or in the oath that you took, outside of treaties, the authority that you can have to utilize foreign law in deciding cases in the court of law in this country. >> i have actually agreed with justice scalia and thomas on the point that one has to be very cautious, even in using foreign law with respect to the things american law permits you to. and that is in treaty, interpretation, or in conflicts of law, because it's a different system of law. >> but i accepted that. i said outside of those. >> well -- >> in other areas where you sit in judgment, can you cite for me the authority, either given in your oath or the constitution that allows you to utilize laws outside of this country to make the decisions about laws inside this country? >> my speech and my record on this issue, because i've never used it to interpret the constitution or to interpret american statutes, is that there is none. my speeches have made that

. >> that was the scalia argument.alia wrote the majority in that. >> any other questions? >> with justice sotomeyer possibly becoming justice, do you anticipate advocates will have to change their litigation and argument strategies? and how?@@@@@@@@@ @ @ @ @ @ @ @ i did some years ago, about four or five years ago, and my experience was that she was well prepared, she has dead on, insightful questions and she was -- she was not going to allow questions to be avoided in any way. i do not see a big change. other analysts may know some ideas were her ideas may be different than justice souter. sotomayor will have some different views on punitive damages than justice souter had. but i'm not really aware of a lot of different areas where there will be many differences. >> i would say that it would be unusual for a highly skilled advocate to try to change an argument just because of a new member of the court coming on. it's hard enough to come up with a really good argument that enables you to answer the hard questions that

and justice scalia had this to say about irreparable harm. the counting of votes that are of questionable legality does in my view threaten irreparable harm to referring to president bush or candidate bush. and to the country by casting a cloud upon what he claims to be the legitimacy of the election. permitting the court to proceed on that erroneous basis will prevent an account, an accurate recount from being conducted on a basis later. hard to understand what recount there is going to be later. i wrote about it at the time saying that i thought it was an atrocious accounting of irreparable harm. hard to calculate, hard to calculate that. and my question, judge sotomayor, shouldn't the american people have access to what is happening in the supreme court, try to understand it, have access to what the judges do by way of their workload? by way of their activities when they adjourn in june and reconvene in october. this year, in september. wouldn't it be more appropriate in a democracy to let the people take a look inside the court through te

the supreme court in the opinion authored by justice scalia suggested that it was a question that the versus sanchez was using fundamental in its legal sense, that whether or not it had been incorporated against the state. with respect to that question, moreover, even if it's not incorporated against the states, the question would be would the states have a rational basis for the regulation it has in place, and i believe that the question there was whether or not a prohibition against felons possessing firearms was a question, if my memory serves me correctly, if it doesn't. but even justice scalia, in the majority opinion in heller recognized that that was a rational basis regulation for a state under all circumstances, whether or not there was a second amendment right. >> the district of columbia versus heller the supreme court quote it has always been widely understood that the second amendment like the first and fourth amendments codify a pre-existing right, unquote. the court also observed this, quote, by the time the founding, the right to have arms had become fundamental for --

anthony scalia, and also the author of a great book. thanks so much for ginning us. sotomayor will play on the court? we've seen from your reporting and i've seen an advanced copy of this terrific book on scalia, the important effect he has had, and there are interesting coalitions that would be surprising to outsiders, this scalia/ruth ginsburg friendship, for instance. what role do you think she will play as she enters the court? >> sure, andrea. for starters, i think it will be an ideological wash. she's probably just about where david souter is on the ideological spectrum in terms of being a liberal appointee. so we're probably not going to see too much of a change in terms of the voting. in fact, on some criminal law matters, she might be a little bit to the right of him. but you're right to talk about what goes on behind the scenes and in conferences, because another woman coming on to the bench would certainly add a new voice in that way. the ferris latina voice, the first hispanic ever in u.s. tree on the bench. i think she might offer a new experience to the

testified at two supreme court confirmation hearings for justice scalia. bruce, what did you make of that exchange? >> i think it showed that this is a candidate that falls generally within the philosophical mainstream of legal thinking today. a statement by lindsey graham he'll probably vote for her. for republicans, it doesn't make sense to vote again. there's nothing she said that's going to leap out as being something unjudicial and if the republicans hope to dpan the white house again, they don't want to enable the democrats to oppose one of the republican candidates that would fit the mainstream or be another scalia here. i think they also see that some of the problems that confronted judge sotomayor were created by barack obama himself by voting against john roberts and samuel ali alito. and i think that every president is entitled to and the republicans don't want to imitate i would suggest, the president of the united states and create a problem for themselves when they regain the white house and send up a nominee who the democrats mayo pose. >> a

added two cases, thomas and scalia wrote the majority. there were no such unusual lineups in seven cases i am talking about. the five were the five you would expect and the for the four you would expect. in the other case, the united states -- the party supported one. the united states was six and one in antitrust environmental cases which is a high success rate, even for the united states which enjoys more success in the supreme court than any other litigant. the business parties had a record of 3, 1, and one. the one at the end reflects that u.s. businesses on both sides, one of them the defendant' 1s -- at the defendant's 1 and the plaintiffs lost. if you take the view that a loss is a win for business, even though there was no business party in the case, you could say that businesses were 5-1-1. and if you take the view that any antitrust case business generally was aligned with the defendant in the case, you to take the view that businesses were 6-1 this term. however you do the arithmetic, it is fair to say that businesses did prett

the problem is when there's another majority and justice kennedy and scalia at the end of-- and a newnlikely to be as restrained. of course, we're only guessing what's on robert's mind, but i have a view of this and i think that what he's attempting to do is protect the institution of the court by taking this minimalist approach. if he were to decide his cases on larger constitutional ground, such as the voting rights act. it would in fact draw tremendous fire from the left. now, we live in a time where everything is highly politicized. the executive branch, legislative branch. i think roberts at this point is trying to vent off the supreme court from that fight. >> there's an argument had they overturned at that portion of the voting rights act, which deals with jurisdictions principally in the south. they could have invited overturning by congress. >> could have invited overturning by congress, but a question whether or not you would have got the vote. >> one theory is that look, restained in voting rights case, roberts, we're talking about here, because he would have lost kennedy i

justice kennedy offered that opinion over the vigorous dissented of chief justice roberts and scalia. and in 1995, u.s. term limits versus fortom, justice kennedy cast the deciding vote that endped the grassroots effort to have the congress less insulated from political accountability. there's no way to appropriately account for in one volume, for more than 1700 cases on which justice kennedy has cast a vote, and professor knowles has not taken on some herculean attack. rather, she's focused on kennedy's decisions concerning speech, equal protection, and personal liberty, and has from them, drawn a sympathetic but not uncritical portrait of a justice wrestling with the great issues of the day, in the context of the constitution and the timeless issues of moral, political, and legal theory. all by way of drawing out the modest libertarianism that she finds as the thread in justice kennedy's opinions. for our program today, professor knowles will discuss her book for about 30 minutes or so, after which we'll have comments from one of her mentors at boston university, professor randy bar

after all, justice scalia's opinion said this. by the time of the founding the right to bear arms had become fundamental for english subjects. blackstone, whose works we have said constituted the preeminent authority on english law for the founding generations, cited the arms provision bear arms was one of the fundmental rights. it was the natural right of resistance and self-preservations and the right of having and using arms for self-preservation and defense. >> as i said earlier, you're a very eloquent advocate, but a decision on what the supreme court will do and what's inevitable will come up before the justices in great likelihood in the future. and so i feel that i'm threading the line of answering a question about what the court will do in a case that may likely come before it in the future. >> let's try it in a less lofty way then. you talked about numchucks before. that's an easier kind of case. but what helder was about was that there was a law here in d.c. that said you couldn't have a handgun. if you wanted to have i

she will-- with judge scalia. thank you. >> host: what kind of jurist do you think sotomayor will make on the court? >> guest: i think the best evidence of how judge sotomayor will approach the job as a justice is based on the record we have before us. i think if you look at her trial court record, i think if you look at her court of appeals record you see someone who is a real commitment and fidelity to the rule of law, someone who respects president and believes in following the precedence of the courts above her. someone you recognize his principles of settled law, but someone who also has a fairness and understanding that the facts determine the outcome, but you applies the law to the facts. i think that she is careful. i think that she is extremely scholarly. i think that she is extraordinarily fair and i think if you look at reports that have been prepared that have examined the record before us, the courts like that of the brennan center and in new york, or the legal defense, the naacp defense fund, they al

. >> well in fact, let me refer to that because justice scalia's opinion in the heller case, expressly left unresolved and explicitly reserved as a separate question whether the second amendment guarantee applies to the states and laws adopted by the states. earlier this year you were on the second circuit panel in a case posing that specific question, analyzing a new york state law restriction on so-called chuka sticks, a martial arts device. now, the unanimous decision of your court cited supreme court precedent as binding on your decision and the supreme court -- longstanding supreme court cases have held that the second amendment applies only to government and not to the states and i noticed -- we know not every constitutional rights have been applied to the states by the supreme court. i know of one of my first case is as a prosecutor it was a question whether the fifth amendment guaranteed the five grand jury eight. the supreme court has not held that applicable to the states. seventh amendment right to jury trial, eighth amendment prohibition against excessive fines. these have

host: antonin scalia received 98 to 0. guest: there were two people who would have voted for antonin scalia if they had been there. he actually invoked that. he has mentioned it in various occasions that he was approved unanimously and he rightly notes that he probably would have been approved unanimously again. justice kennedy, as some of your viewers will remember, came after the ferry to malta was robert bork hearings. so, that was one where it might have been much more divisive, but i think by then, everyone was worn out. not only was it robert bork was defeated -- this was the fall of 1987 and ronald reagan had nominated doug ginsburg, but his name with we're -- -- but his name was withdrawn. anthony kennedy was approved unanimously. host: this e-mail from a viewer from princeton, new jersey. why should we believe anything a nominee says during confirmation? roberts swore up and down that he would follows what law, but over and over again, he has done the opposite. guest: that his adherence to precedent. i have to say

there was a time when someone like justice scalia and justice ginsburg got 95 plus votes. if you were confused as to where justice scalia was coming down, as a judge, you should not be voting. anymore than if you were in mystery about what justice ginsburg would do in the 5% of the cases. that is a mystery. there's some aspect of you that i'm not sure about that gives me hope the you may not go down senator feingold's the when it comes to the war on to evter. generally speaking, the president has nominated someone of good character, who is passionate, who has stood out and stood up from day one, and you have been a strong advocate, and you will speak more mind. the one thing i'm worried about is that if we keep doing what you're doing, we will deter people from speaking their mind. i want to to be able to speak your mind. you have to understand that when you gave the speeches as a sitting judge, that was disturbing to me. i want lawyers who are willing to fight for something. i do not want the young lawyers of this country feel that there are certain kinds they cannot repr

chief justice roberts who is now giving justice scalia a run for his money. so, she sounds to me like she's going to fit right in there, not because she's some shrinking flower, but because she's tough. that's considered a skill for a supreme court justice. >> let's take a quick break because there's a lot to digest and we have the exchange that sonia sotomayor had with john cornyn ready to go on the wise latina comment. cnn.com, you can see these hearings uninterrupted and we're streaming all of that live. the doctor diagnosed arthritis in my right knee. but with aleve, i don't have to worry about my knees hurting. only two aleve can stop pain all day. that would take three times as many tylenol arthritis pain. aleve works for me. ♪ ♪ which one's me - for a cool convertible or an suv? ♪ ♪ too bad i didn't know my credit was whack ♪ ♪ 'cause now i'm driving off the lot in a used sub-compact. ♪ ♪ f-r-e-e, that spells free credit report dot com, baby. ♪ ♪ saw their ads on my tv ♪ thought about going but was too lazy ♪ ♪ now instead of looking fly and rollin' ph

justice scalia had this to say about irreparable harm.ng of votes that are unquestionable legalality does in my view, referring to president bush, does harm to the country upon casting a cloud on what he claims to be the legitimacy of the election. permitting the court to proceed on that erroneous basis will permit an accurate recount from being conducted later. it is hard to understand what recount there was going to be later i wrote about it at the time saying that i thought it was an atrocious accounting of irreparable harm, hard to calculate, hard to calculate that. my question, judge sotomayor, shouldn't the american people have access to what is happening in the supreme court to try to understand it, to have access to what the judges do by way of their work load, by way of their activities when they adjourn in june and reconvene in october, this year in september? wouldn't it be more appropriate in a democracy to let the people take a look inside the court through television? the supreme court said that it wasn't just accused that h

and justice scalia was quoeted s saying, the court must live in another world case by case and it is designing a constitution for a country that i do not recognize. referring to a woman's right to choose and rowe versus wade he said this, judge o'connor's assertion had a fundamental rule of judicial restraint requires us to reconsidering rowe to not be taken seriously. do you think it's possible that if confirmed you would be a litigator in that conference room? take on the ideological battles which pop out from time to time from what we read in their opinions? >> i don't judge on the basis of ideolo ideology. i judge on the basis of the law and my reasoning. that is how i have myself in the circuit court. when my colleagues and i in many cases have come to disagreeing positions we have discussed them and persuaded each other, changed each other's minds and worked from starting point of arguing, discussing, exchanging perspectives on what the law commands. >> well, perhaps you'll be tempted to be a tough litigator in the court and time will tell if you have some of those provocative

and what the court did there come a in an opinion by justice scalia i believe it was, if it looked at the embedded questions of privacy in the home that underlie the unreasonable search and seizure and the court there, as i mentioned, determined that acts taken in the privacy of one's home would commonly not be expected to be intruded upon, unless the police secured a warrant. and, to the extent that the law had generally recognized that if you work actively to keep people out of your home, you lock your windows, you lock your doors, you didn't let people walk by and peeks through, you didn't stand at your front door and show people what you were doing, then you are exhibiting your expectation of privacy, and to the extent that new technology had developed that you wouldn't expect to intrude on that privacy, then you were protected by the warrant clause and the police said an obligation to explain to them what their evidence was and let the magistrate, i use the magistrate in that more global sense, but he would let a judge decide whether there was probable cause to issue the warrant,

>> that is what i believe justice scalia implied in his footnotes, but he did knowledge of that right it is not that i considered it on fundamental but that the supreme court did not consider it fundamental to be incorporated against the states. i want to recognize that it has held it was not his opinion with respect to the application of the second amendment to government regulation as an inquiry and a different inquiry as to the meaning with respect to that issue. >> would you touch this position with regard to the state issues? >> there are three cases addressing this issue at least in the circuit courts, and so it is not a question that i can address. >> the conclusion that the ban on gun commission was permissible under the second amendment -- there is not were connecting the promise to the conclusion. without any analysis at all, the footnote leaves the impression that unless the right is considered fundamental, any gun restrictions is necessarily permissible under the second amendment. is that what you believe? >> i am not taking an opinion, because it is an open question. the

whether you agree with borque or scalia or not, they're tremendous minds and there are other minds.e democratic party, i'm sure has women there that can stand up head to head with scalia and make the case, who have tremendous credential, knowledge, background, but this one doesn't have that. she was appointed because she's a latina, an hispanic and a woman. >> she is also the judicial nominee who has more judging experience than any judge who's gone up in the, what, the past 70 years? she has been in the abelt judge distinction a lot longer than judge roberts was, judge alito was. it's not like she was pick out of the minor leagues and brought up here, pat. >> listen, it certainly is -- look at her own words in the "new york times," from the tapes, it's in the "new york times," june 11th. she said i'm an affirmative action baby. >> yeah. >> i got into princeton on affirmative action. into yale. i didn't have the scores these other kids did. how did she get in yale law review? affirmative action. on the bench by moynihan? moynihan needs an hispanic woman just like barack obama needs

now, there was a time when someone like scalia and ginsburg got 95 plus votes. if you wereonfused about where scalia was cing down as a judge, you shouldn't be voting any more than if you were a mystery about what jue giburg was going to do in ese 5% of the cases. that is no mystery. there's some aspect to viewat i'm not sure about that gives me hope that you may not go dow the senator feingold' road when it comes to the r on terror and we'ltalk about that later on. but, generally saking, t esident has nominated someon of good aracter, someone who halived a very full and fruitful lif who is passiona from dayne from the timeou got a chanc to showcase who you ar you've stood out and you'v ood up, and you've been a strong advocate and you will speak your mind. and the one ing i'm worried about is thatf we kee doing what we're doing, we're going to deter peop from speaking the mind. i don't wa milk toast judges. i want you to bee to speak your mind, b you got to undetand when you gave these speeches as a sitting judge that was disturbinto me. i wantawrs who believe

it made it sound like alito, roberts, scalia, don't have personal experiences at all. they just go strictly by the law. which when you read these decisions you can tell they do use those personal experiences. >> of what you witnessed this week during the hearings, did it inspire you in your pursuit in the field of law? did it in any way maybe kind of stoke the fire of, hey, one day, i want to become a supreme court justice especially because of what i saw? >> i think that judge sotomayor's nomination is general is an inspirational story. where she came from, how hard she worked, the tremendous amount of achievement that she was able to achieve, i mean that's american dream. >> we heard justice ginsberg say not too many months ago, it's that only being the only woman on the bench if. >> i think you see in cases, for example, that the strip church case, i can't remember the name of now, i think it was important even though you have justices applying broader legal concept, it was still a 13-year-old girl who was strip search and it was valuable to have someone who had bee

his first question to scalia was 8 1/2 minutes long. >> we'll come back and talk about health care. and the economy, new investigations. the we'll be right back. trust is at the foundation of how markets work. you have to have trust in the system so that when the investors come to the market and feel confident, they're willing to invest, which then translates to business creation and jojob creation. that chain is very, very important and frankly in the crisis last september and october that chain was broken. a lot of the markets that got us into trouble in the crisis were not regulated, they were not transparent there was reallyno accounta. markets like ours are stable, reliable, transparent and highly regulated. we realize that we are going to enter a period of re-regulation that is necessary. and we find ourselves in a unique position to be part of the solution. so that people feel the resulting business environment is one that is able to instill trust going forward... and gets us back on the path we need to be on. >>> we'll be right back with "the roundtable" and "the sunday funn

justice scalia in dissenting on one of the refusals to take up a case with a circuit split said this: dissenting, justice scalia wrote -- quote -- "in light of the conflicts among the circuits, i would grant the petition and squarely confront both the meaning of the constitutionality of the section involved. indeed, it seems to me quite irresponsible to let current chaos prevail." close quote. well, that's the kind of chaos which prevails when two circuits split, the case may come up in mother circuit or the precedence are divided and it seems to me the court ought to take up the issues. that could be ameliorated by a change in the rules. now four justices must agree to hear a case, and i intend to ask judge sotomayor her views o on e subject and her willingness, perhaps, to be interested in taking cases with only three justice ors or perhaps two justices. the refusal of the court to take up these cases, is very serious by its denial of consideration of perhaps the major or at least a major conflict between the power of congress under article 1 of the constitution to deny the foreign

you've been fairly critical of justice scalia. and making decisions, and the oath that you took outside of treaties, the authority that you can have to utilize foreign law in deciding cases in the courts of law in this country -- >> i have actually agreed with justice scalia and thomas on the point that one has to be very cautious even in using foreign law with respect to the things american law permits you to. and that's an in a treaty interpretation or law because it's a different system of law. >> but i accepted that. i said outside of those. in other areas where you will sit in judgment, can you site for me the authority either given in your oath or constitution that allows you to utilize laws outside of this country to make decisions about laws inside this country? >> my speech and my record on this issue is i've never used it to interpret the constitution or to interpret american statutes is that there is none. my speech has made that very clear. >> so you stand by it that there is no authority for a supreme court justice to

. >> anybody who's been over and watched justice roberts, justice scalia, justice breyer, talk to theinted questions, nobody's critical of that. >> reporter: president obama told americans not to be distracted by the political back and forth of these hearings. you can certainly expect more volleying today with another full day of questionings. jeremy? >> all right. emily schmidt in washington this morning. thanks, emily. >>> the black boxes of a damaged section of a southwest airlines jet are expected to arrive in washington today for inspection. investigators are trying to figure out how a small hole opened in the plane's fuselage during flight. passengers had to put on oxygen masks as the plane made an emergency landing in west virginia. >> we definitely knew that something was going on because we kept going further and further down. and we koud see the trees. when belanded, everybody started clapping. the pilot came out. and people came out and wer hugging him. >> the incident is raising new questions about the safety of aging aircraft. this jet was 15 years old. southwest defended

when i attended the fifth circuit judicial conference a couple of weeks after that when justice scalia came down and a speech and during his presentation and the question answers section, somebody asked him about that and asked him about, you know, the number of 5-4 and, you know, was he struck obviously people are planning to justice kennedy's vote during oral argument, and he acknowledged that it was true and even had some discussion of this questioning from the ricci case and kind of tried to be humorous and say well, you know there are several others up there on the bench. it doesn't have to be all about justice kennedy. but i think that some people going in on these cases are counting up the votes and thinking that maybe it is. >> okay. i would like to open it up to questions. there are microphones on either side and some roaming microphones as well. >> hello? yeah, i would like to ask the panel about the gross case. it seems the court came down with the decision that wasn't briefed or argued and they had fairly far reaching consequences or at least potentially and changing how th

and he i think justice scalia who wrote that opinion said that, you know, that citizens are entitled to arm themselves, and to connect to others, other citizens to counter government tyranny and it was very specific that he said other citizens and not just the state-based militia, which is where i disagree with that. i think if there is -- i think that any of these -- any of the types of these political rights have to be exercised in conjunction, at a minimum -- that the real argument to mow is whether you have political rights to sort of violence against government at all and if it is, the only way it ever could be conceived, it was conceived by the anti-federalists was within a state-based type of system. i think there's sort of three mythologist that infuse the insurrectionist idea and being i'm not going to get into all of them but being the revolution and the constitution, the drafting of these was probably, you know, the mythology, it's more the mythology, there may be effective law, of course, in the constitution, but i think the movement itself is infused with sort of three d

. >> that was the scalia argument.majority in that. >> any other questions? >> with justice sotomeyer possibly becoming justice, do you anticipate advocates will have to change their litigation and argument strategies? and how? >> anyone argued in front of her? >> i did some years ago. my experience was that she was very well-prepared. she has dead-on, insightful questions and did so pretty forcefully. she wasn't going to allow her questions to be evaded in any way. some other panel members may know some areas where her ideas may be different from those of justice souter's. i've had some people tell me that they think justice sotomayor will have some different views on punitive damages than justice souter had. but i'm not really aware of a lot of different areas where there will be many differences. >> i would say that it would be unusual for a highly skilled advocate to try to change an argument just because of a new member of the court coming on. it's hard enough to come up with a really good argument that enables yo

in other words, a little scalia or a little alito. we know that is nonsense. why did barack obama select his final four choices, all women, and then pick the latina out of there? this is affirmative action that he's -- it's an affirmative action judge. he knows the conclusion he wants, knows the signal he wants to send. why not just be honest about it. in my judgment, this is exactly what this is about. >> msnbc's special coverage, our live coverage of the confirmation hearings for supreme court nominee sonia sotomayor will continue just in a moment. up next, senator judd gregg, "the new york times'" neil louis, chris cillizza, and norah o'donnell. most for headaches. for arthritis pain... in your hands... knees... and back. for little bodies with fevers.. and big bodies on high blood pressure medicine. tylenol works with your body... in a way other pain relievers don't... so you feel better... knowing doctors recommend tylenol... more than any other brand of pain reliever. a heart attack at 53. i had felt fine. but turns out... my cholesterol and other risk f

yo could say that she's more coervative than some members of the supreme court, including justice scalia, phaps. i think tt's why they're hoing so much on herpeeches, on what they view as rial identity politic. a little bit theirefighters' decision. and the judiciary committee, let's face it it'sike a dysfunctional fami. they're fhting... t last ten fights they hadnd the rest of the world esn't know what theye talking about. >> rose: most peoe say abou hethat the only thg they have to go on reay beyond the firefighters ce is that speech and the word thatthepresident used, "empathy." >> again, waterloo, iowa. i don't think it resonated. and i think smt republicans are aware ofhis. there's a reful game to play he. they can playthat identity politics but les not forget, this is a woman who i think without questionis generating a great deal of pri in the latinoommunity acro america. the fastest-growg population, fastest-growin electorate. there are a number of rublican senators who have to be sensive about this. charlie, i'll give you a gd example. richard burr, itooks like, in north caroli,