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LOU DOBBS TONIGHT

Supreme Court Battle; Nuclear Defiance; Gay Marriage Ban; Senator Dorgan Interview

Aired May 26, 2009 - 19:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


LOU DOBBS, CNN ANCHOR: Thank you, Wolf. Good evening everybody.

President Obama chooses Federal Appellate Court Judge Sonia Sotomayor for the Supreme Court. She is the first Hispanic to be chosen as a Supreme Court justice. The president calls Sotomayor inspiring. Critics call her a liberal judicial activist and that is the issue of our "Face-Off" debate tonight.

Also, North Korea defying the Obama administration and the United Nations again just one day after conducting a nuclear weapons test. Pyongyang test firing more missiles -- it's pushing for even more concessions from the United States.

And angry protests after the Supreme Court of California upholds a voter approved ban on same-sex marriage, but the high court also ruled that same-sex marriages that took place before the ban would remain valid. We'll have a special report on what's next in this legal and political battle.

And Senator Byron Dorgan joins us here to talk about his provocative new book, "Reckless on how the Federal Government has Almost Bankrupted This Nation" (ph).

We begin tonight with President Obama's choice of Sonia Sotomayor or to be the nation's first Hispanic U.S. Supreme Court justice. The president declared Sotomayor is an inspiring woman, but critics are already questioning her neutrality. Those critics point to Sotomayor's assertion in 2005 that the federal court of appeals is where policy is made.

Sotomayor is also being criticized for saying a wise Latino woman with the richness of her experiences would more often than not reach a better conclusion than a white male -- Candy Crowley with our report.

(BEGIN VIDEOTAPE)

CANDY CROWLEY, CNN SR. POLITICAL CORRESPONDENT (voice-over): She would be the first Hispanic Supreme Court justice tapped by the first African-American president. History picks history in the White House.

Judge Sonia Sotomayor, SUPREME COURT NOMINEE: That I am an ordinary person who has been blessed with extraordinary opportunities and experiences. Today is one of those experiences.

CROWLEY: Sonia Sotomayor's extraordinary experience is being celebrated in much of the Hispanic community. UNIDENTIFIED FEMALE: (SPEAKING FOREIGN LANGUAGE)

CROWLEY: Taking calls all day at Viva 900 Radio (ph) in Maryland, Indira Terrazas says Sotomayor's life has huge resonance with her listeners.

INDIRA TERRAZAS, VIVA 900 RADIO: Right now it's a cultural (INAUDIBLE). She knows the way the Latinos think, the way that they want -- they can get whatever they want and she helped her way and worked hard and now she can be the next judge of the Supreme Court.

CROWLEY: Born to a Puerto Rican family, Sotomayor went the hard way from public housing in the South Bronx to the Ivy leagues, Princeton, Yale Law, and then a career that spans time in the Manhattan D.A.'s office to the U.S Court of Appeals. Now if confirmed a seat on the highest court in the land.

Her career is a dream of immigrants, her nomination the dream of politicians. Exit polls from the 2008 election show 67 percent of Latinos, the fastest growing demographic, voted for Barack Obama. Veteran Democratic political operatives think that ties the hands of Republicans in the confirmation process.

MARIA CARDONAS, HISPANICS FOR A FAIR JUDICIARY: I believe that the Republicans are going to have to tread very, very carefully on this one. They have already alienated 70 percent of the Hispanic community in this country with the whole issue of immigration in 2006.

CROWLEY: In an interview with CNN Radio, the head of the Republican Party, Michael Steele, did not disagree.

MICHAEL STEELE, REPUBLICAN PARTY: Yes, you want to be careful. You don't want to be perceived as a bully in this situation.

CROWLEY: It is tricky for Republicans who need to win back Latino voters, shake the image as the party of no, and hold their conservative base, not happy with the nomination of someone they believe is an activist liberal judge. Somewhere in between celebration and concern is Raquel Rodriguez (ph), former general counsel to former Governor Jeb Bush -- herself Hispanic.

RAQUEL RODRIGUEZ, MIAMI ATTORNEY: And I think we've made great strides in celebrating the fact that we're diverse but not using it either to hold people back or to push them forward. All else being equal in my opinion, the judicial results ought to be the same regardless of what your background is.

CROWLEY: Sotomayor is quoted as saying that her ethnicity and gender are factors in being on the bench. Expect to hear more about that in the weeks to come.

(END VIDEOTAPE)

CROWLEY: Now the White House says President Obama picked his nominee because of her experience and her judicial temperament. However, he did think it was a good idea to have a Hispanic American on the Supreme Court. Lou?

DOBBS: And she was the front runner, if you will, from the very beginning once David Souter announced his retirement and this White House went to great lengths to say that to push back -- at least to make the appearance of pushing back against ethnocentric interest groups who were pushing her nomination and then did precisely what he said he would not do -- that is dealt with first and foremost gender and ethnicity.

CROWLEY: Well you know the White House again -- and White House officials on background say listen she has a lengthy resume and I think that's why you saw the president emphasize that when he was introducing her and he said she has more experience on the bench than anybody currently sitting on the Supreme Court had when they were nominated.

He went through the list of things that she has been and their point is that first she was qualified and more than qualified by (INAUDIBLE) where she has been -- everything from someone in the district attorney's office in Manhattan all of the way up to the circuit court of appeals so they say she has that breath of experience and the fact that she was -- she is an Hispanic American obviously it's something they wanted to have on the Supreme Court, but they say they picked her first for her experience and her temperament.

DOBBS: All right. Candy, thank you very much -- Candy Crowley from Washington.

Well as we reported, Judge Sotomayor astonished many with her declaration that policy is made in the appellate court. Here is what Sotomayor said at Duke University four years ago.

(BEGIN VIDEO CLIP)

SOTOMAYOR: Court of Appeals is where policy is made and I know and I know this is on tape and I should never say that because we don't make law -- I know. OK, I know. I know. I'm not -- I'm not promoting you and I'm not advocating it. I'm you know...

(END VIDEO CLIP)

DOBBS: Her comments sparked outrage among many conservatives who accuse her of being nothing less than a judicial activist. Congressional Republicans less blunt in their reaction to Judge Sotomayor's nomination. Those Republicans promise to give Sotomayor what they called a fair hearing on Capitol Hill, but they challenge Sotomayor to demonstrate that she will show no preferences or political preferences if she were to be confirmed as justice of the Supreme Court.

Democrats, for their part, many of them quick to praise Judge Sotomayor and her experience -- Senate Judiciary Committee Chairman, Senator Patrick Leahy, who will lead the confirmation process called her record exemplary. Senator Leahy also said quote, "I believe that Judge Sotomayor will be in the mold of Justice Souter who understands the real world impact of the court's decisions rather than the mold of the conservative activist who second-guess Congress and who through judicial extremism undercut laws."

Senator Leahy said he would ensure the next justice is seated before the Supreme Court's term begins in October. Well joining me now our senior legal analyst Jeffrey Toobin. Jeffrey is the author of the widely praised bestseller "The Nine: Inside the Secret World of the Supreme Court" -- Jeffrey, good to have you here. No surprise at all about Sotomayor.

JEFFREY TOOBIN, CNN SR. LEGAL ANALYST: She was at the top of everyone's list. One reason why it took her so long to get confirmed in 1998 is that Republicans even then knew that she looked like a possible Supreme Court nominee and here she is.

DOBBS: And here she is which it appears at least to me to be a statement of President Obama's competence in his own political strength here. The statement, your reaction to it -- that a Latino woman with a -- and those are her words -- a Latino woman -- a Latino woman with the richness of her experience would more often than not reach a better conclusion than a white male.

If one were to invert those words and say that a white male with a richness of his experience would more often than not reach a better conclusion than a Latino woman, would that make him a racist and a sexist?

TOOBIN: It would certainly sound bad. I've actually read the full context of that quote. What she's...

(CROSSTALK)

TOOBIN: What is she saying...

(CROSSTALK)

TOOBIN: OK, but what she's saying is that it's a good thing to have a diverse bench and that's what...

DOBBS: I know that's what she's saying...

(CROSSTALK)

DOBBS: And it doesn't change what she said.

TOOBIN: That's true.

DOBBS: Is that a sexist and racist -- potentially sexist and racist comment?

TOOBIN: I don't think it is in the slightest.

DOBBS: So you would have no problem with a white male inverting that sentence?

TOOBIN: I have to hear the context of what the white male said.

DOBBS: OK -- OK -- the vote is in. (INAUDIBLE) charge of the issue of policy being made on the appellate court...

TOOBIN: Right.

DOBBS: ... hearing her obvious embrace of that fact.

TOOBIN: Well that is a clear demark (ph) line of difference between liberals and conservatives. And liberals feel that judges have an aggressive role to protect individual rights and feel that one way to do it is through the courts. Conservatives feel that they would like their policy made through the courts but different policy than the liberals. That's what...

DOBBS: Sort of a -- sort of a national superiority for the liberal view there...

TOOBIN: Well it's who -- it's who's Oxis Gourd (ph)? I mean you know it depends on you know which...

DOBBS: Well no it really doesn't because judicial activist whether it be conservative or liberal would seem to be just that. Making policy at the appellate level and the Supreme Court would certainly be a premier pinnacle of that. Why would we want that in any case?

TOOBIN: Well because it depends. For example, many judges believe that the Second Amendment bars all gun control. That's a conservative point of view, but it's also a judicial activist view. Liberals believe that judicial -- that the Constitution bars abortion restrictions. They are both judicial activism but it depends on which kind you like.

DOBBS: And this candidate -- this nominee, do you like?

TOOBIN: Do I like her? She seems awfully qualified. She's been on the federal bench for 17 years. She has got a very distinguished background, an interesting personal story, and barring any sensational and negative disclosures about her personal life, it's hard to imagine she'll get -- that she won't get confirmed.

DOBBS: Jeffrey Toobin, thank you sir.

TOOBIN: All right.

DOBBS: Much more on the judge's nomination here later. It's also the topic of our "Face-Off" debate tonight.

Also, more feuding in the Republican Party goes on, doesn't it, as the battle over the Republican Party's future escalates and more defiance from North Korea, a new challenge to President Obama's policy of talking with America's enemies.

(COMMERCIAL BREAK)

DOBBS: North Korea has test fired another short range missile. This is the third test of short range missiles by North Korea in two days. Those tests coming after North Korea defied the United States and the United Nations conducting a nuclear weapons test. There are rising concerns that Iran will now step up its nuclear program. Kitty Pilgrim has our report.

(BEGIN VIDEOTAPE)

KITTY PILGRIM, CNN CORRESPONDENT (voice-over): Communist North Koreans applauded their show of military prowess today, an underground nuclear test and launches of short range missiles, a clear signal to the West on Memorial Day. Despite the belligerent display, the Obama administration was still putting its hope on talking. Today the U.S. State Department talking about talking.

IAN KELLY, ACTING ASST. SECY. OF STATE: We feel the door does still remain open. That we're ready to engage and we hope that North Korea will make the right choice and choose to engage constructively.

PILGRIM: President Obama hopes talks and U.N. condemnations will address the issue.

BARACK OBAMA (D-IL), PRESIDENT OF THE UNITED STATES: We will work with our friends and allies to stand up to this behavior.

PILGRIM: The U.S. ambassador threatening.

SUSAN RICE, U.S. AMBASSADOR TO U.N.: We are going to pursue in the Security Council a new resolution, a strong resolution, with teeth.

PILGRIM: But the last U.N. resolution on North Korea in 2006 did nothing to slow the country's relentless pursuit of nuclear power and six years of six-party talks with North Korea have led to nothing that's lasted. North Korea is not willing to talk.

Iran also continues to pursue its nuclear goals and last week test fired a long-range missile. The U.S. responded by expressing serious concerns. Even before President Obama was elected critics pointed out his campaign pledge of talking to the rogue regime was unrealistic. Critics like the conservative Heritage Foundation's Nile Gardiner still think the U.S. is on the wrong track.

NILE GARDINER, HERITAGE FOUNDATION: President Obama's appeasement of the Iranians has not reaped any dividends at all in terms of U.S. interests and the Iranians have sent a very clear message that they are not interested in dialogue with the United States.

(END VIDEOTAPE)

PILGRIM: Now, Monday President Ahmadinejad offered to debate President Obama at the United Nations on a variety of topics but the Iranian president rejected a Western proposal that Iran freeze its nuclear program. Ahmadinejad said Iran would not bow to Western pressure on its nuclear program. Lou?

DOBBS: Thank you very much -- talking about talking is our State Department. Thank you very much, Kitty -- Kitty Pilgrim.

President Obama is in Nevada tonight and Nevada's governor declined to meet with him -- the president attending a fund-raiser in Las Vegas for Senate Majority Leader Senator Harry Reid. Nevada's Governor Jim Gibbons (ph) was invited to a so-called handshake meeting with President Obama, but the governor said a momentary greeting is insufficient.

Instead he wants an outright apology for the president's past comments when he discouraged bailout corporations from taking trips to Las Vegas. The effect has been significant on the economy of Nevada.

More Republican infighting tonight -- former Secretary of State Colin Powell firing back at former Vice President Dick Cheney -- Cheney saying Powell abandoned the Republican Party when he endorsed President Obama -- Powell also hitting back at Rush Limbaugh who called on Powell to leave the Republican Party.

(BEGIN VIDEO CLIP)

GEN. COLIN POWELL (RET.), FORMER SECRETARY OF STATE: Rush will not get his wish and Mr. Cheney was misinformed. I'm still a Republican. And I'd like to point out that in the course of my 50 years of voting for presidents, I have voted for the person I thought was best qualified at that time to lead the nation.

(END VIDEO CLIP)

DOBBS: Powell says the Republican Party needs to be more inclusive and on our "STATE OF THE UNION" with John King, former Homeland Security Secretary Tom Ridge agreed -- Ridge criticizing Rush Limbaugh for being divisive.

(BEGIN VIDEO CLIP)

TOM RIDGE, FORMER HOMELAND SECURITY SECRETARY: Rush articulates his point of views in ways that offend very many. It's a matter of -- a matter of language and the matter of how you use words. And it does get the base all fired up and he's got a strong following. But I personally if I had -- if he would listen to me, and I doubt if he would, the notion is express yourselves, but let's respect other's opinions.

(END VIDEO CLIP)

DOBBS: Limbaugh today was quick to respond to both Powell and Ridge. He said quote, "they talk in platitudes and they talk about perceptions, but when you apply reality to their rhetoric, it becomes clear how ill-equipped and directionless they are to handle any of this."

A final legal decision in the case of a 13-year-old battling cancer, also tonight protestors take to the streets after the California Supreme Court upholds a voter -- the voter-approved ban on gay marriage.

(COMMERCIAL BREAK)

ANNOUNCER: This is CNN Breaking News.

DOBBS: This just into CNN -- boxer Mike Tyson's 4-year-old daughter has died from injuries suffered in an accident in her Phoenix home. Exodus Tyson was pronounced dead this morning at a Phoenix hospital. Police have just released the information.

The girl apparently became entangled in a cord hanging from a treadmill yesterday. She was taken to a hospital where she was placed on life support. Mike Tyson was not in Phoenix at the time of the accident. Again, boxer Mike Tyson's 4-year-old daughter has died of injuries sustained in a household accident.

Turning now to new developments in California -- the State Supreme Court today upheld California's ban on same-sex marriage. Gay couples who were married before that ban went into effect will stay married in the eyes of the law. It is expected that the issue will be taken to the voters again in an upcoming election. Casey Wian has our report.

(BEGIN VIDEOTAPE)

CASEY WIAN, CNN CORRESPONDENT (voice-over): The California Supreme Court's ruling to uphold a voter approved ban on same-sex marriage yet allow 18,000 existing gay marriages to stand is unlikely to settle what's become a bitter dispute. Ruling six to one justices indicated they were conflicted by the issue.

"Regardless of our views as individuals on this question of policy, we recognize that as judges and as a court our responsibility to confine our consideration to a determination of the constitutional validity and legal effect of the measure in question."

In a 185-page opinion, they ruled that Proposition 8 approved by voters in November by a four-point margin does not undo the domestic partnership rights of same-sex couples. It only impacts the officially sanctioned designation of the term marriage. The decision to allow existing gay marriages to stand was unanimous but of little comfort to anti-Proposition 8 activists gathered outside the court.

KATHLEEN WHITE, GAY RIGHTS SUPPORTER: It's nice that my marriage is still intact, but that's not the point. The point is, is that everybody should have the same civil rights across the board.

WIAN: Proposition 8 supporters said in a statement, "We are extremely pleased that the Supreme Court has acknowledged the right of voters to define marriage in the California Constitution. The voters have decided this issue and their views should be respected."

PROF. KAREEM CRAYTON, USC LAW SCHOOL: This is one of those sort of quirky and sometimes messy things about our democracy. Sometimes in this state the public gets a different view than the state legislators or perhaps even the State Supreme Court does.

WIAN: Proposition 8 is part of a long California tradition of tinkering with the state's Constitution, which governs minutia such as gasoline tax revenue, public housing and even what type of nets commercial fisherman can use. The United States Constitution has been amended 27 times or about once every eight years. Californians have changed theirs more than 500 times or about four times a year.

(END VIDEOTAPE)

WIAN: It's expected that same-sex marriage supporters will bring the issue back to voters in one of the next two state elections. They believe public sentiment has shifted in their favor in recent months. California's governor, lieutenant governor and assembly speaker all reacted to today's decision by saying they believe same-sex marriage eventually will be legal in California. Lou?

DOBBS: How is their forecasting record so far?

WIAN: Well I'm not sure about how it is on this issue, but for 18,000 couples in California it will continue to be a legal thing. Their marriages will be recognized, Lou.

DOBBS: I was referring to the fact that those very same folks that you cited as supporting same-sex marriage and at this point have been unable to manage their government. Let's hope they're better at forecasting. Thanks very much. Appreciate it -- Casey Wian.

Supporters of same-sex marriage are marching in New York at this very hour protesting the California decision. The Group Day of Decision (ph) is sponsoring protest marches in more than 100 cities across the country. The group says an entire segment of our population is watching its civil rights be denied. Only four states, Connecticut, Massachusetts, Maine and Iowa now permit same-sex marriage.

New York City today reported two more deaths linked to the swine flu. The city's health department said that both victims had underlying health issues. These fatalities bring New York's death toll to four. The Centers for Disease Control has confirmed 10 deaths nationwide so far attributed to this outbreak of swine flu. These two latest deaths in New York have yet to be added to that total.

A Minnesota judge today ruled that 13-year-old cancer victim Daniel Hauser must undergo chemotherapy. Daniel's mother, Colleen Hauser, sparked nationwide attention when she fled with her son to avoid chemotherapy treatments. A family spokesman said the two had been heading for Mexico where he was expected to receive alternative treatment for cancer. They voluntarily returned to Minnesota yesterday. The boy's parents said they will comply with the court order now.

Other stories we're following across the country -- in Houston a driver led police on a half-hour chase through highways, intersections and residential neighborhoods. At one point the hood of the car flipped up on to the windshield, but the driver managed to keep going and still to elude police. Houston police were finally able to ram the car forcing it to spin out of control as you see here. They then smashed the driver's window, dragged him out of the car, and handcuffed him on the ground. No injuries were reported in that chase.

Peanut butter and jelly, a burger and fries, vodka and bacon (ph) -- the people at Black Rock Spirits (ph) in Seattle think it's a natural match -- introducing bakon vodka (ph). After two years of testing, they say they have the recipe that delivers a quote, "perfect savory bacon flavor". They say it works great in a Bloody Mary or as a marinade for a steak -- we'll see.

House Speaker Nancy Pelosi and China -- a standoff with the CIA continues and a fight over whether Judge Sonia Sotomayor is an inspirational candidate for the Supreme Court or a liberal judicial activist. That's the subject of our "Face-Off" debate next.

(COMMERCIAL BREAK)

ANNOUNCER: Here again, Mr. Independent, Lou Dobbs.

DOBBS: Critics of President Obama's Supreme Court choice, Judge Sotomayor, say she's a judicial activist who could put her political agenda above law. One issue that will surely come under scrutiny, her decision favoring the city of New Haven, Connecticut, a case in which 20 white and Latino firefighters sued the city of New Haven for racial discrimination when they were denied promotions because there were no African-American candidates in the top 20 after that promotion test. That case is now before the U.S. Supreme Court. Ines Ferre has our report.

(BEGIN VIDEOTAPE)

(APPLAUSE)

INES FERRE, CNN CORRESPONDENT (voice-over): The Supreme Court justice nominee Sonia Sotomayor proudly embraces her Latino background. In a 2001 lecture Sotomayor said that the gender and ethnicity of judges does and should influence decisions saying quote, "I would hope that a wise Latino woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn't lived that life", a comment that outrages conservative critics like the group Judicial Watch, which says that if confirmed, Sotomayor may rule more on the basis of racial identity than law.

TOM FITTON, JUDICIAL WATCH: It's outrageous and racist on its face and if a nominee that had conservative credentials made a similar though reversed statement, they would be left out -- they would never be put on the court.

FERRE: But one liberal academic says too much is made of these comments and not enough of her legal opinions.

PROF. KENJI YOSHINO, NEW YORK UNIV. SCHOOL OF LAW: I don't think that having a particular background is necessarily going to cash out as having a particular writing style or a particular opinion and if you actually read the over 400 opinions that she has written, you see that she is a judge's judge.

FERRE: One case that will get greater scrutiny is Sotomayor's role in dismissing the appeal of 19 white and one Latino firefighters from New Haven. They claim they were denied promotions despite doing better in exams because not enough minority candidates qualified. Sotomayor was part of a three-judge panel that in a one paragraph summary sided with a lower court. Other judges on the court criticized the decision, arguing it failed to grapple with questions of exceptional importance. PROF. JONATHAN ADLER, CASE WESTERN RESERVE SCHOOL OF LAW: Some have certainly suggested that it was not only unusual to handle a case like that in that fashion but that it also seemed like the court was trying to make the case go away or brush it under the rug.

FERRE: The Supreme Court apparently agreed. It decided it would hear the firefighters appeal.

(END VIDEOTAPE)

FERRE (on camera): And legal analysts expect that the Republicans on the Senate Judiciary Committee will want to ask Sotomayor about her role in the firefighters case and her comments about ethnicity and the bench. Lou?

DOBBS: Thank you very much. Ines Ferre. Judge Sotomayor's nomination is the topic of our face-off debate this morning. Joining us now, Floyd Abrams, a constitutional and First Amendment attorney who supports the Sotomayor nomination. Great to have you with us. And Wendy Long who is counsel for the Judicial Confirmation Networks and she opposes the judge's nomination. Good to have you with us.

Let me begin, if I may, Floyd, you support Sotomayor's nomination. Give us your reasoning on the basis of her intellect, her judicial, her legal talent.

FLOYD ABRAMS, CONSTITUTIONAL ATTORNEY: Well, first, I've argued before her. She's a good judge. She's a very talented and able ...

DOBBS: Does that mean you won?

ABRAMS: I did. I did. She's an even better judge. Look, she's very smart. She is very tough on counsel who don't do their work. She is very serious. Her opinions are first rate. She's been reversed twice out of her hundreds of opinions that she's written in its totality. And she's extremely qualified both by experience and by her performance.

So, I start out saying, ideology aside, she's extremely well qualified and because I happen to know how she's dealing (ph) the bar and how she's behaved as a judge, I'm very impressed.

DOBBS: Let's turn to another member of the bar who thinks she's a lousy choice. Why so?

WENDY LONG, COUNSEL, JUDICIAL CONFIRMATION NETWORK: Well, just to pick up on what Floyd was just saying and let's talk only about the way she conducts herself as a judge. You should ask her fellow Clinton appointee, Jose Cabranas, on the Second Circuit who essentially in the case you were just showing that is now pending before the Supreme Court of the New Haven firefighters basically accused her of committing judicial malpractice. I mean, it was a serious claim. The firefighters raised Title VII claims under federal statutes and constitutional claims under 14 Amendment, equal protection claims and she just gave them the back of her hand without even really analyzing them because she's the outcome she wanted to reach.

And Jose Cabranas exposed this and wrote that she really didn't comport herself well as a judge.

ABRAMS: But it's not the outcome that she wanted to reach, that is not why she did it. She did it because the Second Circuit had previously had written opinions which bound her to do it. The one thing that this is not is judicial activism. Judicial activism, which is usually used as a slur, if anything in this case would be saying to New Haven you can't do this. We know you would like to do this. We know the people who elected you are willing to let you do it but we won't.

DOBBS: You get the last word on this. And then we want to not retry that case.

LONG: She has embraced judicial activism in her own words. She said it's appropriate to bring your own personal agenda and who you are to the bench and that your own personal experiences and views should be how you decide cases. That's wrong.

DOBBS: Let's go to this quote if we may. And I would like everyone to see this. A remark that I found absolutely, frankly, bizarre. Jeffrey Toobin and I were talking about this earlier on her reference to a wise Latina woman compared to a white male saying, "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion as a judge an a white male who hasn't lived that life."

You're not put off by that?

ABRAMS: I am not put off because I read her speech and what she said immediately ...

DOBBS: It was a long speech, wasn't it?

ABRAMS: All you had to do was go to the next paragraph, though, and you see what she's saying is, and judges have to be careful. They have to understand themselves. They have to understand that people will react differently. Will because they're women. Latino. All sorts of other things.

DOBBS: That's what she was talking about (ph)?

ABRAMS: And then she said - and they have to be careful to make sure that they're doing two things at once. Following the law. She emphasizes that. And yes, using their better side of their learning that that's appropriate ...

DOBBS: Why would she make the statement if that is her intent? Why would she make the declarative statement, "I would hope a wise Latina woman with the richness of her experience would more often than not reach a better conclusion as a judge than a white male who hasn't lived that life," if she didn't mean it?

ABRAMS: I'm not saying she didn't mean it. I think she means it in the context of saying diversity amongst judges is a good thing and that beyond that judges have got to reign themselves in.

Sure, she said, really, in the very next paragraph -- she said I hope that I as a judge will use the better side, the good things that come from my background to be a better judge.

LONG: I don't think that's what she was saying at all. I think that's wrapping it in a pretty package of double speak just the way the president does. I think what she was saying is a wise Latina woman would reach a better decision than a white man. There's no way so slice and dice that and it was said in response to the view of Sandra Day O'Connor and Ruth Bader Ginsburg who said a wise old woman and a wise old man would probably come to the same outcome. She was disputing that. And the way to test that proposition as you said, is to flip it. Would we ever tolerate somebody saying, oh, I think a white man would reach a better conclusion than a Latina woman. Of course not. It's absurd.

DOBBS: The diversity. President Obama has said initially he wanted someone with empathy. We can go back to the 2007 Planned Parenthood speech by the then candidate in which he talks about the importance of diversity, empathy, for the first time to my knowledge.

All of this talk about empathy, this discussion of diversity. The president made it clear he was not after a while going to deal with ethnocentric interest groups who were advancing Sotomayor's nomination, candidacy, yet this is precisely where he came down, which is where he began. Doesn't this put a peculiar political light on this?

ABRAMS: Look, I wouldn't suggest that any time a president appoints someone there's no political angle to it. But the first thing he looked for was talent, ability, demonstrated experience and then what he saw is someone who he thought beyond pure law, beyond reading words off pages, would focus on the impact of the decision on real people. That's not a bad thing for a judge to do. That's a good thing.

LONG: And what about the impact of the decision on Frank Ricci and the other firefighters in New Haven? What about the impact on these firefighters who have studied really hard and have done well on an exam that's been thrown out? What does she think? Where's her compassion for them and does she consider the impact on them?

ABRAMS: I think what she's doing there is she's following the law. And the law in the Second Circuit led her to that opinion as well as her colleagues. She wasn't alone ...

LONG: I disagree ...

ABRAMS: We treat this as if she's a single judge off riding a horse into the darkness on her own.

DOBBS: What is she?

ABRAMS: She's sitting there with a group of other judges, most of whom agreed with her. LONG: Well, she sat with two others and half of the circuit disagreed with her and Judge Jose Cabranas expressed very well what half of the judges on that circuit thought of what she did.

DOBBS: Wendy Long, thank you for being with us. Floyd Abrams, thank you.

ABRAMS: Thank you.

DOBBS: Perhaps you two will come back and we can continue to try this case in the weeks ahead. All right. Thanks a lot.

ABRAMS: We would like to know what you think about this. Our poll question tonight is this. Do you believe that Sotomayor's statement that a Latina woman would more often than not reach a better conclusion than a white male as judge is fairly interpreted as sexist and racist? Yes or no? Cast your vote at loudobbs.com. We'd like to know what you think. We'll have the results here upcoming.

DOBBS: Stop federal spending and maybe we can save the American economy. That's the view of my next guest, Senator Byron Dorgan.

And the continuous Republican feuding leads us to a question who's in charge and in charge of what? A topic for tonight's radio panel amongst others. We'll be right back.

(COMMERCIAL BREAK)

DOBBS: Joining me are three of my favorite radio talk show hosts. In Chicago, from WGN, the great, illustrious, Steve Cochran. Great to have you with us, partner.

STEVE COCHRAN, WGN RADIO: Thank you. You're missing an adjective.

DOBBS: OK. Legendary.

COCHRAN: Like it.

DOBBS: From KCMO, Chris Stigall. I'll have appellations for you, Chris. But anyway, it's great to have you here.

CHRIS STIGALL, KCMO RADIO: Thanks.

DOBBS: Here in New York from Wor, Dr. Joy Browne who is magnificent, insightful, original and spectacular, tonight.

DR. JOY BROWNE, WOR RADIO: I got your adjectives.

DOBBS: Chris, I have to work on. Chris, I don't know what I'm going to do here.

STIGALL: You can call the Obama administration. They're great with adjectives.

DOBBS: You'd better believe it. Let's start, then, with that. Today, Sotomayor, Judge Sotomayor, the president's nominee. Are you excited? Do you think we're on a way to some new judicial excellence as well as a result of her nomination? Should she be confirmed?

Your panel earlier was discussing the statement she made and I just wanted to pull -- I don't mean to read to you but Title 28 ...

DOBBS: Go ahead.

STIGALL: ... Chapter 21 ...

DOBBS: I was going to ask for Title 28. How did you know that?

STIGALL: Well, I'm a great student, Lou. I bow to the professor. "I'll administer justice without respect to persons and do equal right to the poor and to the rich." That's what Supreme Court nominees pledge. And what she has said certainly indicates she's going to make the constitutional accountable to her and not the other way around.

DOBBS: That's a great way to put it, Chris. What do you think, Steve?

COCHRAN: I agree. I think it's a terrific appointment. Obviously the votes will be there. So unless she hasn't paid her taxes she should sail through greatly here. You have to assume people are asking that question around the White House a little more than they used to. As I said, great life story. She was brought in by the original President Bush. It will be tough. Unless there's a gotcha moment, the Republicans, they probably don't have much to fish with there.

DOBBS: It's interesting. This is really a statement of President Obama of his own political strength. He has the votes in the Senate. Although we've been surprised. We thought he had votes on Guantanamo Bay, too. What do you think, Joy?

BROWNE: Granted, half of the people in this country are women. One out of every six are Latino. If you take something out of context, I suspect that all of us as careful as most of us are could find -- if someone looked carefully enough they could find something that would make us look stupid or be very counter to what we really believe.

DOBBS: That's not fair to say that to radio talk show hosts.

BROWNE: I'm so sorry.

STIGALL: Well, look, you're at least half of a protected class. I appreciate your feelings of safety. I'm in the Midwest. I'm scared to death.

BROWNE: Which half? Which half, babycakes?

I just think that - first of all, look, be honest. Do you not think that all of us bring our experience to our daily lives to how we respond to people and when we're asked to make a decision whether with our mother-in-law or kids or each other or caller? So I think she was being unduly honest.

DOBBS: Unduly honest. BROWNE: And from what I understand that she was perhaps not being as cautious as many of us have learned to be but I do think she was being honest in that we do bring who we are to the party. Now, does that mean she's going to ignore the law? I think if you read (inaudible) she does not.

DOBBS: I think it means quite a different thing when you say your gender, your race is superior to that of someone who is of a different gender and a different race solely on basis of race and gender.

BROWNE: There are so many thoughts that are coming to my head right now that I'm ignoring.

DOBBS: Don't ignore it.

COCHRAN: You know what, Lou? In doing speeches, you play to the room. And I would give her the opportunity to explain the context of that speech and to getting the best rise out of the room. And as we have already discussed here, I have got three hours of stupid to choose from every day. So I don't think that's as big.

I tell you what I want to hear from her, though. I do want a deeper explanation on her decision on the New Haven firefighters case which was reduced to a paragraph.

BROWNE: Apparently what she was saying ...

DOBBS: Let me turn to ...

BROWNE: Can I ask just one question of all of you guys. What would reverse racism be? Isn't it either reverse racism or racism? What would reverse racism be?

DOBBS: I'll just speak first. On this broadcast you will never hear me talk about reverse discrimination. I talk about racial discrimination period.

BROWNE: Exactly, it is or isn't, right?

DOBBS: Chris?

STIGALL: Listen, if you read the blogs, Lou, you know you're one of the biggest bigots out there.

DOBBS: Absolutely.

STIGALL: I'm sure you've read the comments. I'm saying that facetiously, of course. You speak to the letter of the law. And because you support strong borders, for instance, that makes you some sort of racist. I just -- look. Clarence Thomas is a black man who came from extraordinary poverty and never once have we heard him play the impoverished black guy card through his confirmation and in fact had he tried it wouldn't have mattered.

BROWNE: But he had other issues.

DOBBS: Joy wants me to ask one question. She had a call today on her radio talk show about premature ejaculation.

BROWNE: I did.

DOBBS: And how did that end up?

BROWNE: Well, he was 26 and technically because he could maintain an erection for five to seven minutes it was technically not. And his cure for it and he asked me if this was medically approved was before he went to bed with his 20-year-old girlfriend he did jumping jacks. And I said, no, I thought that would not necessarily work because blood went to muscles, number one, and number two ...

DOBBS: And think people are waiting for what would work.

BROWNE: How long do you have?

DOBBS: You have 15 seconds.

STIGALL: Here's what works for me. Watching an Obama speech. That works for me.

BROWNE: It works for you every time.

DOBBS: Steve Cochran is absolutely speechless.

BROWNE: He's doing jumping jacks.

COCHRAN: Listen, I just have to say, if you're still tingling four hours after Lou's show, call a doctor.

DOBBS: Joy, do you want to share the answer for everybody?

BROWNE: The answer is basically that five to seven minutes is not premature. And the point is to trap the blood and not get the blood there. I had several answers.

DOBBS: Our continuing series on LOU DOBBS TONIGHT. We want to thank Joy. Chris, thank you. Thanks for taking care of my radio talk show hosts. You are magnificent. Thank you sir. You are wonderful. You're appreciated. You're outstanding.

STIGALL: I wish I could bring the content Joy brings. I got nothing. I got nothing.

DOBBS: And Steve Cochran, I just salute you as I always do. A legend. Thank you, sir.

COCHRAN: Thank you, Lou.

DOBBS: Coming up at the top of the hour, NO BIAS, NO BULL. Roland Martin in for Campbell Brown. Roland, what have you got to say?

ROLAND MARTIN, CNN HOST: I have nothing to say. I'm speechless with that last segment, Lou. Just wow. All right, folks. Whoa, we're focusing tonight on the story everyone is talking about. The president's historic pick for the Supreme Court. Federal appeals court Judge Sonia Sotomayor. Just ahead, we'll go in depth on whether her nomination will lead to fireworks on Capitol Hill and we'll look at what she could bring to the bench.

Plus, we'll take a closer look at her remarkable life story with some people who know her well and we'll take you inside the president's decision to name her to the nation's highest court. All of that at the top of the hour, Lou.

DOBBS: All righty. Thanks a lot, Roland. Appreciate it.

One Democratic senator calls for restraint in federal spending, Senator Byron Dorgan joins me here. And the NBA's Cleveland Cavaliers, they could be selling a major stake in that team to communist China. Yeah. Absolutely.

(COMMERCIAL BREAK)

DOBBS: Senator Byron Dorgan says federal spending must reigned in to save our economy and our country. Senator Dorgan is the author of the important new book, "Reckless! How Debt, Deregulation and Dark Money Nearly Bankrupted America and How We Can Fix It". And he joins us here tonight.

Senator, great to have you with us.

SEN. BYRON DORGAN, (D) ND: good to be with you.

DOBBS: And the book goes on sale today. Sir, people may not realize, you are one of eight, eight senators who voted against the so-called -- love this - the Financial Modernization Act of 1999 in the waning days of the Xlinton administration. What did you know that so many other senators obviously didn't?

DORGAN: Well, I wasn't clairvoyant and not necessarily even very smart. Just some common sense that had me believing what we learned in the Great Depression we shouldn't have to learn. That was you mix banks with real estate and securities and so on. Put them all in a bowl. Pretty soon you have major problems. I said on the floor in the Senate in that debate, I said if banks want to gamble, they ought to go to Las Vegas. I also said within a decade, we are going to see massive taxpayer bailouts.

DOBBS: And yet Glass-Steagall, which was rolled back, 1999, no one is talking about ending these supermarket nonsense banks right now. Everybody wants to protect their vested interest and it includes the Obama administration, this treasury secretary, and the Democratic leadership of this Congress.

DORGAN: I agree. The fact is we have got to begin a process to break up this too big to fail mentality. That's one of the reasons I have written the book. If you don't understand where you have been, it is very hard to determine where you are going to go. This old saying if you don't care where you are, you are never lost. Well, we need to figure out what has happened here and it is not rocket science to understand what's happened. And then fix it. And part of fixing it is first to try to pull the country out of the ditch, we need to try to revive this economy. But even if we do that, we have to get rid of this too big to fail. We have to break up some of the big banks. We can't be in the situation we've been in now where the banks are so large that they can't be allowed to fail so you just pump billions and billions and billions of money into them.

DOBBS: And this administration, senator, with the -- the complicity of this Congress it appears at this point is intent to bailing out states like California that has carried on the most irresponsible fiscal policy, well, California, New York, I want to be fair here, two largest states, two of the biggest and most reckless states, if I may use your word, why in the world should the American taxpayers continue this?

DORGAN: It shouldn't. We can't begin bailing out states. We have to try to find out how you get the water out of our own boat here. We have got very significant problems at the federal level. Now, one of the reasons for the title "Debt Deregulation and Dark Money," debt -- federal budget policies deep in debt. But it is not just that. Credit card debt, household debt, corporate debt, you name it and leverage all around us, and so -- trade debt which I have written about before, very serious long-term problem. We have to begin to address these things if we are going to put the country back on track.

DOBBS: The book is "Reckless" by Senator Byron Dorgan. I couldn't urge you more to buy the book. There it is, Senator. Your name is in bright lights over there.

DORGAN: It is.

DOBBS: Senator Byron L. Dorgan. And a terrific book, it is. "How Debt, Deregulation and Dark Money Nearly Bankrupted America". Senator ...

DORGAN: And how can fix it.

DOBBS: And how we can fix it. Importantly.

Tax increases, given the weakness of the economy, this administration's pressing it. Cut the size of government.

DORGAN: We need to begin to cut ...

DOBBS: Just a few seconds.

DORGAN: Cut some spending and, you know, fiscal policy has to be ...

DOBBS: You mean be responsible.

DORGAN: Absolutely. We can't continue to provide a government that the people are not able to pay for. Ultimately, you have to reach some agreement there.

DOBBS: There are some people in the Obama White House right now, senator -- getting ready to call right away.

DORGAN: Oh, I don't think so. DOBBS: Senator Dorgan, thanks a lot for being with us.

DORGAN: Thanks.

DOBBS: The book is "Reckless." We will be right back.

Red storm rising. The Cleveland Cavaliers striking a deal that could make a Chinese conglomerate part owner of the NBA.

(COMMERCIAL BREAK)

DOBBS: America's game, one of them, could become part owned by the Chinese. The Cleveland Cavaliers have given a Chinese investment group up to 15 percent ownership of the NBA franchise and its 20,000- seat arena. But in order to be finalized that agreement must be approved by the board of governors. It is expected to be approved.

And tonight's poll results. Eighty-five percent of you say Judge Sotomayor's statement that a Latina woman would more often that not reach a better conclusion than a white male is fairly interpreted as sexist and racist.

A reminder to join me on the radio Monday through Friday for "The Lou Dobbs Show" 2:00 to 4:00 p.m. each afternoon on WOR 710 Radio in New York.

Go to Lou Dobbs Radio to get the local listings for the show in your area.

Thanks for being with us tonight. NO BIAS, NO BULL starts right now. In for Campbell Brown, Roland Martin.

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