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Sotomayor Confirmation Hearing

Aired July 14, 2009 - 12:00   ET

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

(COMMERCIAL BREAK)

WOLF BLITZER, CNN ANCHOR: Senator Orrin Hatch of Utah, he's wrapped up his questioning of the Supreme Court justice nominee Sonia Sotomayor. Senator Patrick Leahy is going through a little bit of an exchange with him right now. Clearly a difference on that New Haven, Connecticut firefighters case.

The next questioner is going to be Senator Dianne Feinstein of California, a senior Democrat on the committee. Let's listen in to hear how they're wrapping things up.

(JOINED IN PROGRESS)

SEN. JEFF SESSIONS (R), RANKING MEMBER, JUDICIARY COMMITTEE: ... "Washington Post" study that showed that Judge Sotomayor's votes came out liberal 59 percent of the time compared with 52 percent for other judges who, like her, were appointed by Democratic presidents. And that the Democratic appointees were 13 percent more liberal than Republican appointees.

Well, I don't know. That's not a huge difference, but the suggestion that I would just make that for the record and...

(CROSSTALK)

SESSIONS: ... whatever else you offered. And I would offer, Mr. Chairman, a correction of the record regarding the Miguel Estrada case. I have a statement from him. He was nominated by President Bush, and I would offer that into the record as an explanation of how his nomination was blocked by consistent filibuster by the Democrats when there was a majority to confirm him.

SEN. PATRICK LEAHY (D), CHAIRMAN, SENATE JUDICIARY COMMITTEE: Thank you, and that will be in the record.

I would also not want anything -- make any suggestion that Mr. Estrada is anything but an exceptionally good lawyer. The argument there was not so much with him, but withholding by -- of some material by the Bush administration, something he had no control over.

Senator Feinstein?

SEN. FIANNE FEINSTEIN (D), CALIFORNIA: Thank you very much, Mr. Chairman.

I'm puzzled why Mr. Estrada keeps coming up. Mr. Estrada had no judicial experience. The nominee before us has considerable judicial experience. And Mr. Estrada wouldn't answer questions presented to him.

This nominee, I think, has been very straightforward. She has not used catchy phrases. She has answered the questions directly the best she could. And to me, that gets points.

I must say that, if there's a test for judicial temperament, you pass it with an A-plus-plus. I want you to know that, because I wanted to respond, and my adrenaline was moving along. And you have just sat there, very quietly, and responded to questions that, in their very nature, are quite provocative. So I want to congratulate you about that.

Now, it was just said that all nine justices disagreed with you in the Ricci case, but I want to point out that Justice Ginsburg and three other justices stated in the dissent that the Second Circuit decision should have been affirmed. Is that correct?

SOTOMAYOR: Yes.

FEINSTEIN: Thank you very much.

Also, a senator made a comment about the Second Circuit not being bound in the Ricci case that I wanted to follow up on, because I think what he said was not correct. You made the point that the unanimous Ricci panel was bound by Second Circuit precedent, as we've said. The senator said that you easily could have overruled that precedent by voting for the case to be heard en banc.

First, my understanding is that a majority of the Second Circuit voted not to re-hear the case. Is that correct?

SOTOMAYOR: That's correct.

FEINSTEIN: Secondly, it took a significant change in disparate law -- in disparate impact law to change the result of the Second Circuit reached in this case. And the Supreme Court itself in Ricci recognized that it was creating a new standard. Is my understanding correct?

SOTOMAYOR: Yes, Senator.

FEINSTEIN: You see?

So what's happening here, ladies and gentlemen and members, is that this very reserved and very factual and very considered nominee is being characterized as being an activist when she is anything but. And I have a problem with this, because some of it is getting across out there. Calls began to come into my office, "Wow, she's an activist."

In my view, because you have agreed with your Republican colleagues on constitutional issues some 98 percent of the time, I don't see how you can possibly be construed to be an activist. And by your comments here, and you've -- and as I walked in the room earlier, somebody asked you how you see your role, and you said, "To apply the law as it exists with the cases behind it."

That's a direct quote. It's a very clear statement. It does not say, "Oh, I think it's a good idea," or it does not say any other cliche. It states a definitive statement.

And later, you said, "Precedent is that which gives stability to the law," and I think that's a very important statement.

FEINSTEIN: And what we're talking about here is following precedent, so let me ask you in a difficult area of the law a question.

The Supreme Court has decided on more than seven occasions that the law cannot put a woman's health at risk. It said it in Roe in '73; in Danforth in '76; in Planned Parenthood in '83; in Thornburgh in '86; in Casey in '92; in Carhart in 2000; and in Ayotte in 2006.

With both Justices Roberts and Alito on the court, however, this rule seems to have changed, because, in 2007, in Carhart II, the court essentially removed this basic constitutional right from women.

Now, here's my question: When there are multiple precedents and a question arises, are all the previous decisions discarded, or should the court re-examine all the cases on point?

SOTOMAYOR: It's somewhat difficult to answer that question...

FEINSTEIN: I know.

SOTOMAYOR: ... because, before the court in any one case is this particular factual situation. And so how the court's precedent apply to that unique factual situation -- because often what comes before the court is something that's different than its prior decision, not always, but often.

In the Carhart case, the court looked to its precedents. And as I understood that case, it was deciding a different question, which was whether there were other means, safer means, and equally effective means for a woman to exercise her right than the procedure at issue in that case.

That was, I don't believe, a rejection of its prior precedents. Its prior precedents are still the precedents of the court. The health and welfare of a woman must be -- must be compelling consideration.

FEINSTEIN: So you believe that the health of the woman still exists...

SOTOMAYOR: It is a part...

(CROSSTALK)

SOTOMAYOR: You mentioned many cases. It has been a part of the court's jurisprudence and a part of its precedents. Those precedents must be given deference in any situation that arises before the court.

FEINSTEIN: Thank you very much. I appreciate that.

I'd also like to ask you your thoughts on how a precedent should be overruled. In a rare rebuke of his colleagues, Justice Scalia has sharply criticized Chief Justice Roberts and Justice Alito for effectively overruling the court's precedents without acknowledging that they were doing so.

Scalia wrote in the Hein case, and I quote, "Overruling prior precedent is a serious undertaking, and I understand the impulse to take a minimalist approach. But laying just claim to be honoring stare decisis requires more than beating a prior precedent to a pulp and then sending it out to the lower courts weakened, denigrated, more incomprehensible than ever, and yet somehow technically alive," end quote.

FEINSTEIN: In Wisconsin Right to Life v. FEC, he said that Chief Justice Roberts' opinion, quote, "effectively overruled a 2003 decision without saying so," end quote, and said this kind of, quote, "faux judicial restraint," end quote, was really, quote, "judicial obfuscation," end quote.

Here's the question. When the court decides to overrule a previous decision, is it important that it do so outright and in a way that is clear to everyone?

SOTOMAYOR: The doctrine of stare decisis, which means stand by a decision, stand by a prior decision, has a basic premise and that basic premise is that there is a value in society to predictability, consistency, fairness, evenhandedness in the law.

And the society has an important expectation that judges won't change the law based on personal whim or not, but that they will be guided by a humility they should show in the thinking of prior judges who have considered weighty questions and determined, as best as they could, given the tools they had at the time, to establish precedent.

There are circumstances in which a court should reexamine precedent and perhaps change its direction or perhaps reject it, but that should be done very, very cautiously. And I keep emphasizing the "verys" because the presumption is in favor of deference to precedent.

The question then becomes what are the factors you use to change it and then courts have looked at a variety of different factors, applying each in a balance and determining where that balance falls at a particular moment.

It is important to recognize, however, that the development of the law is step-by-step, case-by-case, and there are some situations in which there is a principled way to distinguish precedent from application to a new situation.

No, I do not believe a judge should act in an unprincipled way, but I recognize that both the doctrine of stare decisis starts from a presumption that deference should be given to precedence and that the development of the law is case-by-case. It's always a very fine balance. (END OF COVERAGE)

BLITZER: All right. We're going to continue our coverage of the questions and the answers. Sonia Sotomayor getting into a lot of detail on when settled law may not necessarily be all that settled, when precedent can in fact be changed depending on circumstances. An important issue for a potential Supreme Court justice nominee.

Remember, CNN.com is where you can see these hearings uninterrupted.

Our coverage will resume right after this.

(COMMERCIAL BREAK)

BLITZER: A serious discussion right now involving the issue of executive power, when the executive branch of the U.S. government must share information with the legislative branch of the U.S. government, and the American people, for that matter.

Let's go back to the hearing. Sonia Sotomayor answering questions from Dianne Feinstein.

(JOINED IN PROGRESS)

SOTOMAYOR: -- then he's working at his lowest ebbs. If he's acting where Congress hasn't spoken, then we're in what Justice Jackson called the zone of twilight.

The issue in any particular case is always starting with what Congress says or has not said and then looking at what the Constitution has with -- says about the powers of the president minus Congress's powers in that area.

You can't speak more specifically than that, in response to your statement that were a part of your question, other than to say the president can't act in violation of the Constitution. No one's above the law. But what that is in a particular situation has to be looked at in the factual scenario before the court.

FEINSTEIN: Thank you very much.

This is really very relevant to what we do, and we have often discussed this Jackson case, or the steel case, but we just recently passed a Foreign Intelligence Surveillance Act. And one of the amendments -- because I did the amendment -- was to strengthen the exclusivity clause of the law, which has been in the bill since the beginning, but that there are no exceptions from which the president can leave the four corners of this bill. So it will remain to be seen how that works out, over time, but I can certainly say to you that it's a most important consideration as we looked at these matters of national security.

So let me ask you this: you joined a Second Circuit opinion last year that held that the executive should not forbid companies that receive national security letters to tell the public about those letters. The panel's opinion in the case said, quote, "The national security context in which NSLs" -- national security letters -- "are authorized imposes on courts a significant obligation to defer to the judgments of executive branch officials," end quote, but also that "Under no circumstance should the judiciary become the handmaiden of the executive," end quote. That's Doe v. Mukasey.

Given that the executive branch has responsibility for protecting the national security, how should courts balance the executive branch's expertise in national security matters with the judicial branch's constitutional duty to enforce the Constitution and prevent abuse of power?

SOTOMAYOR: I can talk about what we did in Doe as reflective of the approach that I took and joined in that case. It's difficult to talk about an absolute approach in any case because each case presents its own actions by parties and its own set of competing considerations often.

In Doe, the district court had invalidated a congressional statue altogether, reasoning that the statute violated the Constitution in a number of different ways and that those violations did not authorize Congress to act in the manner it did.

As the panel said in that decision, recognizing that deference to the executive is important in national security questions, and that deference to congress, because the court was -- district court was invalidating an act of Congress, that we had, as an appellate court, to be very cautious about what we were doing in this area and to balance and keep consistent with constitutional requirements the actions that were being taken.

SOTOMAYOR: Giving that due deference, we upheld to most of the statute, and what we did was address two provisions of the statute that didn't pass, in our judgment, constitutional muster. One of them was that the law, as Supreme Court precedent had commanded, required that if the government was going to stop an individual from speaking in this particular context, that the government had to come to court immediately to get court approval of that step.

The statute, instead, required the individual who was restricted to come and challenge the restriction. We said, "No, government's acting. You have a right to speak." If you have a right to speak, you should know what the grounds for that right are and you should be told or brought to court to be given an opportunity to have that restriction lifted.

The other was a question of who bore the burden of supporting that restriction, and the statute held that it was the individual who was being burdened who had to prove that there wasn't a reason for it.

The government agreed with our court that that burden violated Supreme Court precedent and the premises of freedom of speech and agreed that the burden should not be that way and we read the statute to explain what the proper burden was.

There is, in all of these cases, a balance and deference that's needed to be given to the executive and to Congress in certain situations, but we are a court that the protects the Constitution and the rights of individuals under it and we must ensure and act with caution whenever reviewing a claim before us.

FEINSTEIN: Thank you very much.

One question on the commerce clause in the Constitution. That clause, as you well know, is used to pass laws in a variety of contexts, from protecting schools from guns to highway safety to laws on violent crime, child pornography, laws to prevent discrimination and to protect the environment, to name just a few examples.

When I questioned now Chief Justice Roberts, I talked about how, for 60 years, the court did not strike down a single federal law for exceeding congressional power under the commerce clause.

In the last decade, however, the court has changed its interpretation of the commerce clause and struck down more than three dozen cases.

My question to the chief justice and now to you is: do you agree with the direction the Supreme Court has moved in more narrowly, interpreting congressional authority to enact laws under the commerce clause?

SOTOMAYOR: It is...

FEINSTEIN: Generally, not relating to any one case.

SOTOMAYOR: No, I know. But the question assumes a prejudgment by me of what's an appropriate approach or not in a new case that may come before me as a second circuit judge or, again, if I'm fortunate enough to be a justice on the Supreme Court.

So it's not a case I can answer in a broad statement. I can say that the court, in reviewing congressional acts as it relates to an exercise of powers under the commerce clause, has looked at a wide variety of factors and considered that in different areas.

But there is a framework that those cases have addressed and that framework would have to be considered with respect to each case that comes before the court.

SOTOMAYOR: Now, I know that you mentioned the number of different cases and if you have one in particular that concerns you, perhaps I could talk about what the framework is that the court established in those cases.

FEINSTEIN: All right. I'll give you one very quickly: restricting the distance that somebody could bring a gun close to a school.

SOTOMAYOR: Well, the gun-free zones school act, which the court struck down in Lopez...

FEINSTEIN: Right, Lopez. SOTOMAYOR: ... in that case and in some of its subsequent cases, the court was examining, as I mentioned, a wide variety of factors. They included whether the activity that the government was attempting to regulate was economic or non-economic, whether it was an area in which states traditionally regulated, whether the statute at issue had an interstate commerce provision to -- as an element of the crime, and then considered whether there was a substantial effect on commerce.

It looked at the congressional findings on that last element, the court did, and determined that there weren't enough in the confluence of factors that it was looking at to find that the Constitution -- that that particular statute was within Congress's powers.

That's the basic approach it has used to other statutes it has looked at. I would note that its most recent case in this area, the Raich case, the court did upheld a crime that was non-economic, in the sense of that it involved just the possession of marijuana. And there, it looked at the broader statute in which that provision was passed and the intent of Congress to regulate a market in illegal drugs.

So the broad principles established in those cases have been the court's precedent. Its most recent holding suggested another factor for courts to look at in each situation will provide a unique factual setting that the court will apply those principles to.

FEINSTEIN: One last question on that point. One of the main concerns is that this interpretation, which is much more restrictive now, could impact important environmental laws, whether it be the Endangered Species Act, the Clean Air Act, the Clean Water Act, or anything that we might even do in cap and trade.

SOTOMAYOR: Oh, in fact, there are cases pending before the courts raising those arguments. And so those are issues that the courts are addressing. I can't speak much more...

FEINSTEIN: Right, I understand.

SOTOMAYOR: ... further than that because of the restrictions on me.

FEINSTEIN: It's just that Congress has to have the ability to legislate. And in those general areas, it's the commerce clause that enables that legislation.

Now, as you pointed out, we did revise the gun -- and make -- the Lopez case -- and make specific findings and perhaps, you know, with more care toward the actual findings that bring about the legislative conclusion, that we might be able to continue to legislate in these areas.

FEINSTEIN: But my hope is that you would go to the court with the sensitivity that this body has to be able to legislate in those areas. They involve all of the states. And they're very important questions involving people's well-being, control of the environment, the air, the water, et cetera. SOTOMAYOR: I do believe that in all of the cases the court has addressed this issue that it pays particular attention to congressional findings. I know that individuals may disagree with what the court has done in individual cases. But it has never disavowed the importance of deference to legislative findings with respect to legislation that it's passing within its powers under the Constitution.

FEINSTEIN: Thank you. I wish you best of luck.

SOTOMAYOR: Thank you.

FEINSTEIN: Thank you very much.

SESSIONS: Mr. Chairman, I correct one thing. I said I had a letter earlier from Miguel Estrada. That was not correct. It wasn't a letter. Thank you.

LEAHY: Yes, if we could have a copy of whatever you put in the...

SESSIONS: OK.

LEAHY: I did send Mr. Estrada a note last night because I had (INAUDIBLE) something I said about him I wanted to let him know that.

SESSIONS: Well, we both made an error talking about him.

LEAHY: OK. Well, but then one thing we should remember, that Mr. Estrada is not the nominee here. This is -- with all the statements made about President Obama's (INAUDIBLE) -- his confirmation hearing was last November, not now. It's just you, Judge Sotomayor.

And have a good lunch and we will come back -- who's next? Senator Grassley will be recognized when we come back in and we will start right at 2:00.

(END OF COVERAGE)

BLITZER: All right, so they're taking a 90-minute break right now for lunch. Five senators so far have been able to ask questions, 30 minutes uninterrupted. Fourteen to go. Fourteen senators, Democrats and Republicans. They will each have in this first round 30 minutes to continue the questioning of Sonia Sotomayor.

And then there will be a second round, presumably, tomorrow, 20 minutes each. And then, if necessary, a third round, 10 minutes each. Lots of questions coming up over the course of today and tomorrow. We'll see how long this lasts through the day. They will resume the hearing at 2:00 p.m. Eastern, 90 minutes from now.

We're going to assess what has happened so far on this first day of questioning. We'll take a quick break. The best political team on television will be here, as we see Sonia Sotomayor and the chairman of the Judiciary Committee, Patrick Leahy. She's going to have a little lunch. Everyone else will relax. Then the questioning will resume.

(COMMERCIAL BREAK)

BLITZER: Yesterday they had their opening statements. No questions. But today, on day two, the questions have started. Five senators so far have had 30 minutes each to ask Sonya Sotomayor questions. They're in a break right now for lunch. The confirmation hearings will resume at 2:00 p.m. Eastern. A little bit more than 90 minutes or so from now. And the chairman, Patrick Leahy, says when he says 2:00 p.m. Eastern, he means 2:00 p.m. Eastern. So far, he's been pretty much on time every step of the way.

One of the key issues that was discussed today, it involves the Second Amendment and how far the federal government and state and local communities have in dealing with the issue of gun control. Let's go to John King and Jeff Toobin. They're over at the magic wall for us.

John, this is a very, very sensitive issue with enormous political ramifications.

JOHN KING, CNN ANCHOR: And, Wolf, we'll go to the case files to explore with Jeff. It is a sensitive policy issue. One that comes up at every Supreme Court hearing and even lower appellate court judges as well. It's an important policy question. It's also an important political question.

As I pull up the case they talked about quite a bit, Judge Sotomayor was involved in, it is Maloney versus Cuomo. Politically, Wolf, the Republicans note there are 60 Democrats. That if they have any chance of blocking this nominee, and they don't think they have one, is it to peel off conservative and rural Democrats where gun rights are a big issue in their states.

Jeff, here is the case. And I want to go over here first to the topic, which was, of course, the Second Amendment. At issue was whether the state of New York can regulate weapons. A man had a possession of a particular martial arts weapon, called a nunchuk, violates the Second Amendment. That was the question. Judge Sotomayor was involved in the ruling that said New York's law did not violate the Second Amendment, which the ruling said only restricts the federal government, not the states, from restricting the right to bear arms.

JEFF TOOBIN, CNN SENIOR LEGAL ANALYST: Right. And that -- it relates to a very important case from two years ago called Heller and the Supreme Court, which said that the Second Amendment, which speaks of the right to keep and bear arms, applies to individuals when they are being regulated by the federal government. In this case, the government of the District of Columbia. The issue in this case was, is the Second Amendment right to keep and bear arms, does it also apply against the states, as well as the federal government.

And that's been a subject of years of litigation in the Supreme Court. Which parts of the Bill of Rights, which amendments apply against the states, as well as the federal government. Some rights do apply against the states -- freedom of press, freedom of speech. Some rights don't. You have the right to a grand jury. That's not something against the press (ph). And that was the issue in the case.

KING: And let's take a closer look at two points, number one, by tapping here. As we noted, and you could hear it in Hatch's questioning, many conservatives have criticized this ruling. And right up here is a key point and the telestrator doesn't want to work at the moment. We'll get it to work right here, 2009. This case has not yet been appealed to the Supreme Court, correct, but it could come before the court with conceivably a Justice Sotomayor on the court.

TOOBIN: Right. And the issue is -- and one thing Sotomayor pointed out was that in Justice Scalia's Heller opinion, he did not decide the question of whether the Second Amendment applies against the states. It was left open. The seventh circuit, a very -- a more conservative group of judges, held that it does not apply against the states. Judge Sotomayor held it does not apply against the state.

But what she said is that it is up to the U.S. Supreme Court to decide which parts of the Bill of Rights apply against the states. That may be something that she gets to rule on. But the larger point she was making is, this case says nothing about my opinions about gun control. It's simply a question of deferring to the U.S. Supreme Court about how the Bill of Rights is interpreted.

KING: Now, that key point, Wolf, as we go back to you, Jeff making both a policy point that she said it's not my view, it's how I interpret the law. And that's the big political point as well. Republicans, if they can get an opening on this one, see some potential political gain. But it is the White House take right now and I think most Republicans can see she hasn't given them any room politically.

BLITZER: Going to be really hard, really hard for any of those 58 Democrats and two Independents who vote with the Democrats to be peeled away from their support for Sonia Sotomayor on this issue or other issues as well.

But here's the exchange that the Supreme Court justice nominee had with Orrin Hatch, one of the senior Republican members of the Judiciary Committee.

(BEGIN VIDEO CLIP)

SEN. ORRIN HATCH, (R) UTAH: That footnote that you wrote leaves the impression that unless the right to bear arms is considered fundamental, any -- any gun restriction is necessarily permissible under the Second Amendment. Is that what you believe?

SOTOMAYOR: No, sir, because that's not -- I'm not taking an opinion on that issue because it's an open question. Sanchez (ph) was . . .

HATCH: So you admit it's an open question?

SOTOMAYOR: Well, I admit that justice -- I admit. The courts have been addressing that question.

HATCH: OK.

SOTOMAYOR: The Supreme Court in the opinion authored by Justice Scalia suggested that it was a question that the court should consider.

(END VIDEO CLIP)

BLITZER: All right. Let me bring in Candy Crowley to further assess.

This is politically charged material right here, Candy.

CANDY CROWLEY, CNN CORRESPONDENT: There are lots -- I mean, this is the culture -- the culture wars coming to the Senate hearing. And, obviously, Senator Hatch does not believe -- who does believe that, in fact, the Second Amendment applies to states, trying to bring her out on that. I think what we're seeing here are three different responses from the nominee.

The first one, when it comes to her public words, not uttered on the bench is, I didn't actually mean that. I don't bring my gender and my race to my judgments. The second one is, basically, the punt. Anything that has to do with something in the future. And I think the third one is case law. I just follow case law. That's what I was doing. And I think that's what we're hearing over the course of these first several hours.

BLITZER: All right. I want everybody to stand by because the chairman of the Judiciary Committee, Senator Patrick Leahy, is going to joining us live in just a couple minutes. We'll get his take on what has happened so far.

Our coverage of these historic confirmation hearings will resume right after this.

(COMMERCIAL BREAK)

BLITZER: Important day in U.S. history, the Supreme Court justice nominee, Sonia Sotomayor, being grilled by members of the Judiciary Committee. They're on a lunch break right now. That's why that hearing room over at the Senate Hart Office Building is empty. Pretty much empty right now.

But Dana Bash, our senior congressional correspondent, she is there.

Dana, the Q&A, five senators so far, another 14 senators to go. For all practical purposes, we're only just getting started.

DANA BASH, CNN CORRESPONDENT: We are only getting started, but it is a critical beginning and it's a beginning that I just got an e-mail from somebody over at the White House, they are absolutely thrilled so far. And this is a quote from a senior administration official saying, "no one laid a glove on her." The bottom line is they think that Republicans had to draw blood immediately and they don't think that Republicans have done that so far. But certainly it is not for a lack of trying, at least on the part of Jeff Sessions, the top Republican on the committee, who asked virtually the same question about a dozen times, trying to get the point across that what Judge Sotomayor is saying today is very different from the theme and the tenor of what she has said in the past in terms of the way you use your experience and where you come from in dealing with things on the bench.

But one thing that I think is something that's maybe worth noting, it's sort of swirling around here in the Senate Hart Building is, that, you know, there was a preemptive strike at the very beginning of the questioning today, Wolf, and that is from the Senate Judiciary chairman, Patrick Leahy. He decided to first ask about the wise Latina comment.

But when he asked the question, he left out the controversial part of the quote. He said, you know, he used the quote to Sonia Sotomayor and he said, I would hope that a wise Latina woman with the richness of her experience would reach wise decisions. Well, when he used that quote it sort of elicit the kind of response that it looked to be coordinated and choreographed between the Democrats and the White House, he didn't put in this important part, which she also said many times, which is that she thought that a wise Latina woman would reach a better conclusion than a white male who had lived that life.

So, that certainly is something that is raising questions here and maybe you'll be able to ask Senator Leahy why he decided to do that and whether he did it intentionally. He is not somebody who miss speaks, especially in a setting like this and especially in a quote that important.

BLITZER: I certainly will. And he's standing by. We're going to be speaking with him momentarily, Dana, the chairman of the Senate Judiciary Committee. We're hoping to speak with other members as well.

Let me bring in Maria Echaveste and Alex Castellanos.

So, Maria, you're a Democrat. You worked in the Clinton White House. You teach law at the University of California-Berkeley. Why couldn't she just say, you know what, I really didn't phrase that well. I really didn't mean it. I made a mistake.

MARIA ECHAVESTE, FORMER WH DEPUTY CHIEF OF STAFF: She did. She actually . . .

BLITZER: She didn't go that far.

ECHAVESTE: No, she said it was bad. I . . .

BLITZER: She said it was a rhetorical flourish.

ECHAVESTE: But she said it was bad, it was bad language and she said -- she made it clear that the way it came out isn't exactly what she meant. I think that her point about she's talking to young students and trying to implicate them with some pride and some inspiration and we all say some things that, when we look at it in black and white, it doesn't sound very good.

But what's really . . .

BLITZER: But, remember, she didn't just didn't say it once. She said it in a whole series of speeches.

ECHAVESTE: But what's really bothersome is that Senator Sessions, and to some degree Senator Hatch, again, this notion that by exploring -- by being proud of who you are, your diverse background, that somehow you're supposed to, like, leave that behind. And as I've said earlier, no justice does that. But what she was very clear about was that she -- in that very same speech, she said, I, as a judge, have to make sure that I'm not inculcating the biases or prejudices in -- when I'm making the decision. And that's what all -- we expect from all of our justices.

BLITZER: Because she certainly, Alex, today said, she said it yesterday, she's going to be guided strictly by the law.

ALEX CASTELLANOS, REPUBLICAN CONSULTANT: Yes. And, again, this is a case of split personality disorder here, I think we're almost seeing because it wasn't just that she miss spoke one time. This wasn't just an occasional rhetorical flourish. This is an entire bouquet of rhetorical flourishes that are we not to believe someone when they say five or six times what they mean. So are you telling us that when this judge says something five or six times, don't believe her, believe her now. Is that the credibility she brings to the table? It's a fair question.

GLORIA BORGER, CNN SENIOR POLITICAL ANALYST: But I think that the Democrats are responding as saying, look at the case law. Try and find a place where she did put that personal prejudice in . . .

CASTELLANOS: Ricci. Ricci.

ECHAVESTE: No. Ricci was a decision about whether the city could have thrown out the test.

CASTELLANOS: In your opinion.

ECHAVESTE: And their -- no. Actually, they -- it's very clear. It went up. There was a very difference. And the Supreme Court made new law. That's what we have to recognize.

CASTELLANOS: And the Supreme Court disagrees with you and with her.

ECHAVESTE: Look, but -- and she was following the law up until that point.

BLITZER: Five members of the Supreme Court disagreed, four agreed with her.

ECHAVESTE: Exactly.

BLITZER: So it was a split decision. But a majority, obviously, disagreed with her.

ECHAVESTE: And that's why . . .

CASTELLANOS: And that's the court she aspires to join that said she was wrong and said, to Gloria's point, that in this particular case, it's an open question of whether the town of New Haven was acting to ensure these firefighters' liberties or whether it was just trying to protect itself.

BLITZER: All right. Hold those thoughts because those are excellent thoughts all around.

Patrick Leahy, the chairman of the Senate Judiciary Committee, will be joining us right after this.

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BLITZER: And we're joined now by the chairman of the Senate Judiciary Committee Patrick Leahy, the Democratic senator from Vermont.

Senator, thanks very much.

I assume you're pleased so far by the way, how this hearing is going.

SEN. PATRICK LEAHY (D), VERMONT: I'm pleased by the way the hearing's going. But I'm especially pleased by the selection of Judge Sotomayor to go on the -- on the Supreme Court.

I mean, here's a distinguished juror. She's spent years first as a prosecutor, prosecuting everything from murder cases on, to years on the trial bench and then on the court of appeals. She's actually had more experience in the federal court than anybody in decades has gone on the -- gone on the U.S. Supreme Court.

BLITZER: So, I'm not surprised that you like her a lot.

You did raise the issue in your first round of questions, the "wise Latina woman" comment. But you didn't read the entire statement that has caused so much controversy.

I'll read it right now.

"I would hope that a wise Latina 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."

Alex Castellanos, among others, suggesting, well, maybe there's a split personality she has because today she seemed to walk away from those comments, saying it was rhetorical flourish, she really didn't mean it the way it came out.

LEAHY: Well, I'll let her speak to it. I was asked when she said ultimately and completely it's what's in the law that counts. Every single senator, I mean, is being a little bit disingenuous for senators to seize on that, because every single one of us go out of our way to talk about our background when we're running for office, when we're in debates and everything else. Everybody is shaped by who they are.

But as she said, ultimately and completely, you have to follow the law. And what is more objective is not what she said in a speech, but how is she ruled by a judge? I mean, here's somebody with a longer track record in the federal courts than anybody, certainly, since I've been old enough to vote, who's -- who's been nominated for the Supreme Court.

And every single objective study finds her to be a mainstream judge, who follows precedent, just as she was a very tough prosecutor who followed the law. And I think it's kind of grasping at straws.

We've had what seems to be two levels of attack on her. One, the speech she gave, which has actually nothing to do with the way she's ruled, as all the studies show. And the other, of course, is attacks on things that President Obama has said, as though he's up for confirmation. I tried to remind some of my Republican friends that his confirmation battle was last November, and he sailed through that one pretty well.

BLITZER: Candy Crowley has a question for you, Senator.

CANDY CROWLEY, CNN SENIOR POLITICAL CORRESPONDENT: Senator -- how are you, Senator?

LEAHY: Fine.

CROWLEY: Listen, given the treatment that Republicans looking back see that Justice Roberts and Justice Alito got, do you look at this and see that they're asking frivolous questions? Do you think that it's not important what she has said publicly?

LEAHY: Well, I think that what they -- they keep asking the same question over and over again, they're going to keep getting the same answer over and over again. If that's all they have -- if that's all they have, well, they'll have to make up their own mind. I'm not going to ascribe motives to senator's as to why they ask the questions.

But I think the American people want to know what kind of justice will she be? And they can look at her years on the trial court, her years as a court of appeals judge. Actually, I would suggest even look at her background as a very tough, no-nonsense prosecutor, and I think they'll find somebody who's going to make a very, very good justice on the Supreme Court. I also see a very warm human being with a great sense of humor. But also, even more importantly, with a tremendous grasp of the law.

CROWLEY: But public statements, Senator, shouldn't be considered here, but warm personality should?

LEAHY: No, that's not what I'm saying, and you know that. What I'm saying is that they have to look at the whole person.

Obviously public statements, sure, go ahead look at those. But when we have, as subjected they were concerned about her because President Obama used the word "empathy," which, of course, is what President Bush -- the same words President Bush used when he nominated Clarence Thomas, that that might be a strike against him. Well, he's -- neither President Bush or President Obama are up for confirmation. She is.

What I'm saying is, you want to know what kind of a judge she's been, then look at what kind of a judge she's been. And the fact is, by every single standard, she's a very, very competent, very professional, mainstream judge. That's all I'm asking people to do. And I think that's why you're going to find both Republicans and Democrats will ultimately vote for her for her confirmation. This is not going to be a party-line vote.

JOHN KING, CNN ANCHOR: Chairman Leahy, John King here. Thanks you for being with us.

LEAHY: Hi, John.

KING: I want to ask you a question that you have been very passionate about. You believe the previous administration, the Bush administration, overstepped its grounds on executive power on many occasions.

Senator Feinstein tried to explore with Judge Sotomayor her views on that. She has one case Cassidy v. Chertoff, where she said the Coast Guard had the right to have random, warrantless searches on some vessels if it believed there was a national security risk there.

I'm wondering, as you listen to Senator Feinstein and her questions, do you find Judge Sotomayor, who might be perhaps someone who has two differential a view to the executive branch when it comes to presidential power?

LEAHY: I wouldn't take just one case. I think that courts should always look at what a executive does and realize that the executive's role in our three branches of government. But I don't think that they have to show overdeference to either of the other two branches of government. Their deference has to be only to the law.

BLITZER: We got to wrap it up, Senator Leahy. But for our planning purposes, what time tonight are you planning on wrapping up this second day of the hearing?

LEAHY: I know, I'd love to be able -- I don't know. But I think by the time we come back in at -- at 2:00, we'll have a better idea. But I would hope to go at least until 6:30, possibly even 7:00.

BLITZER: All right, we'll be with you every step of the way.

Senator Leahy, thanks very much.

BLITZER: We're going to continue our coverage one hour from now. The committee will reconvene. We'll have extensive coverage of what's going on. Historic hearings underway before the Senate Judiciary Committee.

There's other important news going on, though, right now.

Let's check in with CNN's Kyra Phillips.

She's in the "CNN NEWSROOM."