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President Obama's Surgeon General Nominee; Sonia Sotomayor Hearing

Aired July 13, 2009 - 12:10   ET

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

WOLF BLITZER, CNN ANCHOR: All right. There it is, Dr. Regina Benjamin, a physician from the South, nominated by President Obama to become the nation's surgeon general.

Let's hear what he's saying right now. I think he's...

QUESTION: What's your attorney general's decision to look into the Bush administration?

BLITZER: No, he's not answering questions from reporters. They are shouting questions, but he's not answering them.

He nominated Dr. Regina Benjamin to be the surgeon general, but before that he took some time to make it clear that he is, by no means, no means, giving up on health care reform. The president saying, "We are going to get this done." "Inaction, he says, "is not an option. Don't bet against us," the president says. "We are going to make this happen."

A major fight over health care reform under way in Washington right now.

Also under way right now, the confirmation hearings of Sonia Sotomayor to become the nation's next justice on the U.S. Supreme Court.

Senator John Cornyn, Republican of Texas, is delivering his opening statement.

SEN. JOHN CORNYN (R) TEXAS: They need to know -- we need to know -- whether you would limit the scope of the Fifth Amendment and whether you would expand the definition of "public use" by which government can take private property from one person and give it to another.

And we need to know whether you will uphold the plain language of the Equal Protection Clause of the 14th Amendment, promising that no state shall deny to any person within its jurisdiction the equal protection of the laws.

Judge, some of your opinions suggest that you would limit some of these constitutional rights, and some of your public statements that have already been mentioned suggest that you would invent rights that do not exist in the Constitution.

For example, in a 2001 speech, you argued that there is no objectivity in law, but only what you called a series of perspectives rooted in life experience of the judge. In a 2006 speech, you said that judges can and even must change the law, even introducing what you called, quote, "radical change," closed quote, to meet the needs of an evolving society.

In a 2009 speech, you endorsed the use of foreign law in interpreting the American Constitution on the grounds that it gives judges, quote, "good ideas," closed quote, that, quote, "get their creative juices flowing," closed quote.

Judge Sotomayor, no one can accuse you of not having been candid about your views. Not every nominee is so open about their views. Yet, many Americans are left to wonder whether these various -- what these various statements mean and what you're trying to get at with these various remarks.

Some wonder whether you're the kind of judge who will uphold the written Constitution or the kind of judge who will veer us off course and toward new rights invented by judges rather than ratified by the people.

These are some of my concerns and I assure you, you will have every opportunity to address those and make clear which path you would take us down if you were confirmed at the Supreme Court.

I thank you very much and congratulations once again.

SEN. PATRICK LEAHY (D) VERMONT: Thank you very much, Senator Cornyn.

Senator Whitehouse?

SEN. SHELDON WHITEHOUSE (D) RHODE ISLAND: Thank you, Mr. Chairman.

Judge Sotomayor, welcome. Welcome to you and to your family. Your nomination caps what has already been a remarkable legal career and I join many, many Americans who are so proud to see you here today. It's a great country, isn't it? And you represent its greatest attributes. Your record leaves no doubt that you have the intellectual ability to serve as justice. From meeting with you and from the outpouring of support I've experienced with personally and from organizations that have worked with you, your demeanor and your collegiality are well established.

I appreciate your years as a prosecutor, working in the trenches of law enforcement. I'm looking forward to learning more about the experience and judgment you are poised to bring to the Supreme Court.

In the last two and a half months and today, my Republican colleagues have talked a great deal about judicial modesty and restraint. Fair enough, to a point, but that point comes when these words become slogans, not real critiques of your record.

Indeed, these calls for restraint and modesty and complaints about activist judges are often code words, seeking a particular kind of judge who will deliver a particular set of political outcomes.

It is fair to inquire into a nominee's judicial philosophy and we will here have a serious and fair inquiry. But the pretense that Republican nominees embody modesty and restraint or the Democratic nominees must be activists runs starkly counter to recent history.

I particularly reject the analogy of a judge to an umpire who merely calls balls and strikes. If judging were that mechanical, we would not need nine Supreme Court justices.

The task of an appellate judge, particularly on a court of final appeal, is often to define the strike zone within a matrix of constitutional principle, legislative intent, and statutory construction. The umpire analogy is belied by Chief Justice Roberts though he cast himself as an umpire during his confirmation hearings.

Jeffrey Toobin, a well-respected legal commentator, has recently reported that -- and this is a quote -- "in every major case since he became the nation's seventeenth chief justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff." Some umpire.

And is it a coincidence that this pattern, to continue Toobin's quote, has served the interests and reflected the values of the contemporary Republican Party? Some coincidence.

For all the talk of modesty and restraint, the right-wing justices of the Court has a striking record of ignoring precedent, overturning congressional statutes, limiting constitutional protections, and discovering new constitutional rights; the infamous Ledbetter decision, for instance; the Louisville and Seattle integration cases,, the first limitation on Roe versus Wade that outright disregards the woman's health and safety; the D.C.-Heller decision discovering a constitutional right to own guns that the Court had not previously noticed in 220 years. Some balls and strikes.

Over and so far, news reporting discuss fundamental changes in the law brought by the Roberts' court's right-wing flank. The Roberts' court has not kept the promises of modesty or humility made when President Bush nominated Justices Roberts and Alito.

So, Judge Sotomayor, I'd like to avoid code words and look for a simple pledge from you during these hearings that you will respect the role of Congress as representatives the American people, that you will decide cases based on the law and the facts, that you will not prejudge any case but listen to every party that comes before you, and that you will respect precedent and limit yourself to the issues that the Court must decide. In short, that you will use the broad discretion of a Supreme Court justice wisely.

Let me emphasize that broad discretion. As Justice Stevens has said, the work of federal judges from the days of John Marshall to the present, like the work of the English common-law judges, sometimes requires the exercise of judgment, a faculty that inevitably calls into play notions of justice, fairness, and concern about the future impact of a decision.

Look at our history. America's common-law inheritance is the accretion over generations of individual exercises of judgment. Our Constitution is a great document that John Marshall noted leaves the minor ingredients to judgment, to be deduced by our justices from the document's great principles. The liberties in our Constitution have their boundaries defined in the gray and overlapping areas by informed judgment. None of this is balls and strikes.

It's been a truism since Marbury v. Madison that courts have the authority to say what the law is even to invalidate statutes enacted by the elected branches of government when they conflict with the Constitution.

So the issue is not whether you have a wide field of discretion. You will. As Justice Cardozo reminds us, you are not free to act as a knight errant ruling at will in pursuit of your own ideal of beauty or of goodness yet, he concluded, wide enough in all conscience is the field of discretion that remains.

The question for this hearing is will you bring good judgment to that wide field? Will you understand and care how your decisions affect the lives of Americans? Will you use your broad discretion to advance the promises of liberty and justice made by the Constitution?

I believe that your diverse life experience, your broad professional background, your expertise as a judge at each level of the system will bring you that judgment. As Oliver Wendell Holmes famously said: The life of the law has not been logic. It has been experience.

If your wide experience brings life to a sense of the difficult circumstances faced by the less powerful among us: the woman shunted around the bank from voicemail to voicemail as she tries to avoid foreclosure for her family; the family struggling to get by in the neighborhood where the police only come with raid jackets on; the couple up late at the kitchen table after the kids are in bed sweating out how to make ends meet that month; the man who believes a little differently, or looks a little different, or thinks things should be different.

If you have empathy for those people in this job, you are doing nothing wrong. The Founding Fathers set up the American judiciary as a check on the excesses of the elected branches and as a refuge when those branches are corrupted or consumed by passing passions.

Courts were designed to be our guardians against what Hamilton and the Federalist papers called those ill humors which the arts of designing men or the influence of particular conjunctures sometimes disseminate among the people, and which have a tendency to occasion serious oppressions of the minor party in the community. In present circumstances, those oppressions tend to fall on the poor and voiceless.

But as Hamilton noted, considerate men of every description ought to prize whatever will tend to beget or fortify that temper in the courts, as no man can be sure that he may not be, tomorrow, the victim of a spirit of injustice by which he may be a gainer today.

The courtroom can be the only sanctuary for the little guy, when the forces of society are arrayed against him, when proper opinion and elected officialdom will lend him no ear. This is a correct, fitting and intended function of the judiciary and our constitutional structure. And the empathy President Obama saw in you has a constitutionally proper place in that structure.

If everyone on the court always voted for the prosecution against the defendant, for the corporation against the plaintiffs, and for the government against the condemned, a vital spark of American democracy would be extinguished. A courtroom is supposed to be a place where the status quo can be disrupted, even up-ended, when the Constitution or laws may require; where the comfortable can sometimes be afflicted, and the afflicted find some comfort, all under the stern shelter of the law.

It is worth remembering that judges of the United States have shown great courage over the years -- courage verging on heroism, in providing that sanctuary of careful attention, what James Bryce called the cool dry atmosphere of judicial determination amidst the inflamed passions or invested powers of the day.

Judge Sotomayor, I believe your broad and balanced background and empathy prepare you well for this constitutional and proper judicial role. And I join my colleagues in welcoming you to the committee and looking forward to your testimony.

SEN. TOM COBURN (R) OKLAHOMA: Thank you.

Judge, welcome. It is truly an honor to have you before us. It is -- says something remarkable about our country that you're here. And I assure you, during your time before this committee, you will be treated with the utmost respect and kindness.

It will not distinguish, however, that we will be thorough as we probe the areas where we have concerns.

There is no question that you have a stellar resume. And if resumes and judicial history were all that we went by, we wouldn't be needing to have this hearing. But, in fact, other things add into that.

Equally important to us providing consent on this nomination is our determination that you have a judicial philosophy that reflects what our founders intended. And there's great division about what that means.

I also wanted to note that I thought this was your hearing, not Judge Roberts' hearing, and that the partial birth abortion ban was a law passed by the United States Congress and was upheld by the Supreme Court. So I have a different point of view on that.

As I expressed to you in our meeting, I think our nation's at a critical point. I think we're starting to see cracks. And the reason I say that is because I think the glue that binds our nation together isn't our political philosophies. We have very different political philosophies.

The thing that binds us together is an innate trust that you can have fair, impartial judgment in this country, that we better than any other nation when we've been wrong have corrected the wrongs of our founding, but we have instilled a confidence that, in fact, when you come before, there is blind justice, and that, in fact, allows us the ability to overlook other areas where we are not so good, because it instills in us the confidence of an opportunity to have a fair hearing and a just outcome.

I am concerned -- and as many of my colleagues -- with some of your statements. And I don't know if the statements were made to be provocative or if they're truly heartfelt in what you have said. But I know that some of those concerns will guide my questioning when we come to the questioning period.

And you were very straightforward with me in our meeting, and my hope is that you will be there, as well.

I'm deeply concerned by your assertion that the law is uncertain. That goes completely against what I just said about the rule of law being the glue that binds us together.

And your praise for an unpredictable system of justice, I think we want it to be predictable. We want it to be predictable in its fairness and the fact that how cases are viewed. And it shouldn't matter which judge you get; it should matter what the law is and the facts are.

And I'm worried that our Constitution may be seen to be malleable and evolving when I, as someone who comes from the heartland, seems to grasp and hold and the people that I represent from the state of Oklahoma seem to grasp and hold that there is a foundational document and there are statutes and occasionally treaties that should be the rule, rather than our opinions.

Other statement, such as the court of appeals is where policy is made, that is surprising to me. And as I look at our founders, the court is to be a check, not a policy-maker. Your assertion that ethnicity and gender will make someone a better judge, although I understand the feelings and emotions behind that, I'm not sure that that could be factually correct. Maybe a better judge than some, but not better judge than others.

There is no -- the other statement, "There is no objective stance, but only a series perspectives, no neutrality, no escape from choice in judging," what that implies -- the fact that it's subjective implies that it's not objective. And if we disregard objective consideration of facts, then all rulings are subjective and we lose the glue that binds us together as a nation.

Even more important is the -- your questioning of whether the application of impartiality in judging, including transcending personal sympathies and prejudices, is possible in most cases or is even desirable is extremely troubling to me.

You've taken the oath already twice and, if confirmed, will take it again. And I'm going to repeat it again. It's been said once this morning. Here's the oath: I do solemnly swear or affirm that I will administer justice without respect to persons and do equal right to the poor and to the rich, and will faithfully and impartially discharge and perform all the duties incumbent upon me under the Constitution and the laws of the United States, so help me God.

It doesn't reference foreign law anywhere. It doesn't reference whether or not we lose influence in the international community. We lost influence when we became a country in the international community to several countries, but the fact that did not impede us from establishing this great republic.

I think this oath succinctly captures the role of the judge and I'm concerned about some of your statements in regard to that. Your judicial philosophy might be, and I'm not saying it is, inconsistent with the impartial, neutral arbiter the oath describes.

With regard to your judicial philosophy, the burden of proof rests on you. But in this case, that burden has been exaggerated by some of your statements and also by some of President Obama's stated intent to nominate someone who is not impartial, but instead favors certain groups of people.

During the campaign, he promised to nominate someone who's got the heart and the empathy to recognize what it's like to be a young, teenaged mom. The implication is that our judges today don't have that.

Do you realize how astounding that is? The empathy to understand what it's like to be poor, to be African-American or gay or disabled or old. Most of our judges understand what it's like to be old.

Senator Obama referred to his empathy standard when he voted against Chief Justice Roberts. He stated, "The tough cases can only be determined on the basis of one's deepest values, one's core concerns, one broader perspective on how the world works and the depth and breadth of one's empathy."

I believe that standard is antithetical to the proper role of a judge. The American people expect our judges to treat all litigants equally, not to favor and not to enter the courtroom already prejudiced against one of the parties. That's why Lady Justice is always depicted blind and why Aristotle defined law as "reason free from passion."

We expect a judge to merely call balls and strikes? Maybe so, maybe not. But we certainly don't expect them to sympathize with one party over the other, and that's where empathy comes from.

Judge Sotomayor, you must prove to the Senate that you will adhere to the proper role of a judge and only base your opinions on the Constitution's statutes and, when appropriate, treaties. That's your oath. That's what the Constitution demands of you.

You must demonstrate that you will strictly interpret the Constitution and our laws and will not be swayed by your personal biases or your political preferences, which you're entitled to.

As Alexander Hamilton stated in Federalist Paper Number 78, the interpretation of the law is a proper and peculiar province of the courts. The Constitution, however, must be regarded by the judges as fundamental law. He further stated it was indispensable in the courts of justices that judges have an inflexible and uniform adherence to the rights of the Constitution.

A nominee who does not adhere to these standards necessarily rejects the role of a judge as dictated by the Constitution and should not be confirmed.

I look forward to a respectful and rigorous interchange with you during my time to question you. I have several questions that I hope you will be able to answer. I will try not to put you in a case where you have to answer a future opinion. I understand your desire in that regard, and I respect it.

I thank you for being here, and I applaud your accomplishments. May God bless you.

LEAHY: Thank you, Senator.

We've been joined by the deputy majority leader, Senator Durbin. And just so those who could plan, especially you, Judge, we'll hear from Senator Durbin. We'll then recess until two o'clock, and we'll come back at two o'clock. At which point, Senator Klobuchar will be -- will be recognized.

Senator Durbin?

SEN. RICHARD DURBIN (D) ILLINOIS: Thank you very much, Mr. Chairman.

Judge Sotomayor, welcome to you and your family. These nomination hearings can be long and painful. But after surviving a broken ankle and individual meetings with 89 different U.S. senators in the past few weeks, you are certainly battle tested.

At the nomination hearing for Judge Ruth Bader Ginsberg in 1993, my friend, Senator Paul Simon of Illinois, asked the following question: You face a much harsher judge than this committee. That's the judgment of history. And that judgment is likely to revolve around the question, did she restrict freedom or did she expand it? I ask this question with respect to the nominations of Chief Justice Roberts, Justice Alito, and I think it's an important question of any court nominee, particularly to the Supreme Court.

The nine men and women on the Supreme Court serve lifetime appointments and they resolve many of our most significant issues. It's the Supreme Court that defines our personal right to privacy and decides the restrictions that can be placed on the most personal aspects of our lives. The court decides the rights of the victims of discrimination, immigrants, consumers. The nine justices decide whether Congress has the authority to pass laws to protect our civil rights and our environment. They decide what checks will exist on the executive branch in war and in peace.

Because these issues are so important, we need justices with intelligence, knowledge of law, the proper judicial temperament and a commitment to impartial justice. More than that, we need our Supreme Court justices to have an understanding of a real world and the impact their decisions will have on everyday people. We need justices whose wisdom . . .

SEN. PATRICK LEAHY, (D) SENATE JUDICIARY COMMITTEE CHAIRMAN: The officer -- the officer will remove the person. The officer will remove the person. We will stand -- the time -- as I've said before and both Senator Sessions and I have said, you are guests of the Senate while you are here. Everybody is a guest of the Senate. Judge Sotomayor deserves respect to be heard. These senators deserve the respect of being heard.

No outbursts will be allowed that might interrupt the ability of the senators or of the judge or I might say of our guests who are sitting here patiently listening to everything that's being said. I thank the Capitol Police for responding as quickly and as rapidly and professionally as they always do. I apologize to Senator Durbin for the interruption. I yield back to him.

DURBIN: Thank you, Mr. Chairman.

More than that we need our Supreme Court justices to have an understanding of the real world, the impact their decisions have on everyday people. We need justices whose wisdom comes from life, not just from law books. Sadly, this important quality seems to be in short supply. The current Supreme Court has issued many decisions that I think represent a triumph of ideology over common sense.

When Chief Justice Roberts came before this committee in 2005, he famously said a Supreme Court justice is like an umpire, calling balls and strikes. We have observed, unfortunately, that it's a little hard to see home plate from right field. If being a Supreme Court justice were as easy as calling balls and strikes, we wouldn't see many 5-4 decisions in the court. In the last year alone, 23 of the Supreme Court's 74 decisions were decided by a 5-4 vote.

The recent decision of Ledbetter versus Goodyear Tire & Rubber is a classic example of the Supreme Court putting activism over common sense. The question in that case was simple, fundamental, should women be paid the same as men for the same work?

Lilly Ledbetter was a manager at a Goodyear Tire plant in Alabama. Worked there for 19 years. Didn't learn until she was about to retire that her male colleagues in the same job were paid more. She brought a discrimination lawsuit.

The jury awarded her a verdict. The Supreme Court, in a 5-4 decision, reversed that, threw out the verdict. The basis for it? They said Lilly Ledbetter filed her discrimination complaint too late. They said her complaint should have been filed within 180 days of the first discriminatory paycheck.

That decision defied common sense in the realities of a workplace where few employees know what their fellow employees are being paid.

WOLF BLITZER, CNN ANCHOR: All right, Dick Durbin, the senator from Illinois, making the point that Sonia Sotomayor is eminently qualified to be a justice, associate justice, of the U.S. Supreme Court. We'll continue to monitor what she's saying. Cnn.com has live streaming of this hearing uninterrupted. We'll take a quick break, continue our coverage right after this.

(COMMERCIAL BREAK)

BLITZER: All right. So Senator Patrick Leahy, the chairman of the Senate Judiciary Committee, has gaveled this confirmation hearing to recess right now. A lunch break until 2:00 p.m. Eastern. An hour and 20 minutes or so from now. We'll continue to cover it, obviously, at that time.

There's Sonia Sotomayor, the Supreme Court nominee. She's walking out, hobbling just a little bit. She's got a fractured ankle, as you know. She's being received by the top Democrats there. You see Chuck Schumer on the right and Senator Leahy on the left.

She'll get a little lunch. She'll relax. She'll come back. We'll hear from four more Democrats. There 12 Democrats on the Senate Judiciary Committee, seven Republicans. All seven Republicans have made their opening statements, including Senator Grassley, who's just emerged to shake her hand as well.

Four Democrats will be making their opening statements, Amy Klobuchar of Minnesota, Edward Kaufman of Delaware, Arlen Specter of Pennsylvania, the former Republican chairman of this committee, now a Democrat, and the newest senator, Al Franken of Minnesota. They'll make their statements.

And then two other senators, Chuck Schumer and Kirsten Gillibrand of New York, will introduce Sonia Sotomayor. And then she will have other opening statement. We don't know how long that is. I'm guessing it will be at least 15 or 20 minutes, approximately that.

Then the session will be gavelled for the day. Tomorrow the Q&A begins. Each senator, all 19 senators, will have 30 minutes of uninterrupted questioning time available to grill Sonia Sotomayor.

Jessica Yellin, our national political correspondent, is in the Senate Hart Office Building where this Judiciary Committee meeting has been going on.

You know, whenever some of those Republicans say something that the White House doesn't like, Jessica, that White House action is pretty quick in terms of a response.

JESSICA YELLIN, CNN CORRESPONDENT: That's right. And they've hit back fast today, Wolf. In particular when she was attacked, Sonia Sotomayor was attacked for her comments about a wise Latina woman and Senator Sessions suggested that the president himself and Justice Ginsburg disagreed with her remarks, criticized Sotomayor for those remarks, the White House corrected that rapidly, saying that they say that her comments were not fully and well articulated, but they understand her sentiment was well intended. What I should -- the larger point here, Wolf, is that the senators on the Republican side are clearly laying out markers for what we're going to see for the rest of the week. This emphasis on the question of empathy serves two purposes for them. One, is it obviously says something about what they believe is troubling in their judicial philosophy, but it also goes to remarks she made in speeches, not to her case work as a judge. And why that's relevant is because in past hearings, these nominees have avoided answering questions about any decisions they've rendered, saying, in the future, I might have to make a decision like this and I can't comment on it. I don't want to reveal, tip my hand.

But Sonia Sotomayor does not have that kind of cover when it comes to the public speeches she's given. For example, her comments on a wise Latina woman. So they're trying to probe -- the critics are trying to probe into areas where she'll be forced to answer.

A second thing they're trying to do is see if they can in some way get a rise out of her, show that she can have an edge and show her to be an aggressive person, somehow less likeable to the American people. That's why you heard Senator Graham say, unless you have a "complete meltdown," I think you'll get voted in.

But the White House, Wolf, I will tell you, finally the White House is saying that what we should expect from her in her statement today is she will focus on her history as being a judge who focuses on practical matter, not legal abstractions, and especially her work as a big-city prosecutor and a judge who has dealt with real world issues. Again, they're getting away from this idea of empathy -- they'll say that's an abstract legal concept -- to the fact that she's someone who came from a tough background who knows how to deal with people as they live in their real lives. A stark contrast to what the Republicans would like.

BLITZER: All right, Jessica, stand by. We're going to get back to you.

Jeff Toobin, let's assess what we've heard now for the past few hours. Any major surprises or was this all rather predictable?

JEFF TOOBIN, CNN SENIOR LEGAL ANALYST: Well, I think we saw in microcosm the Republican Party's search for itself because we saw some attempts at conciliation. We saw Lindsey Graham saying, you know, presidents win elections. They deserve a certain deference. We want to accommodate him, perhaps, although he didn't make a commitment on how he would vote.

And then we heard Jeff Sessions sort of laying out the complete case against Sonia Sotomayor. And I think somewhere between that is an attempt for the Republicans to figure out where they stand in the new political universe.

BLITZER: That's because you heard Lindsey Graham of South Carolina, the Republicans say, barring some sort of meltdown, she's going to be confirmed. GLORIA BORGER, CNN SENIOR POLITICAL ANALYST: Lindsey Graham was actually quite statesman-like because he did make the point that elections have consequences. This is not a judge that perhaps he would have chosen. Certainly Senator John McCain would not have chosen Judge Sotomayor. But I also think what we saw were the issues they're going to raise. Clearly the wise Latina woman issue, the question of affirmative action, which, as you pointed out earlier, really looms over this court. The question of the consideration of foreign law. Should you consider foreign law?

BLITZER: And when they use -- the Republicans use the word foreign law, they mean international law.

BORGER: They mean international law. It's sort of code words for conservatives, really, because that's a no-no, as Alex can tell you.

Something we didn't hear about yet, which I guarantee you we're going to hear about in the hearings, is the Second Amendment and the issue of guns, because of some of her decisions that conservatives don't like. And they're clearly taking on the president of the United States here, saying, if we were to use the Barack Obama standard, Barack Obama who was a senator voted against Republican judges, we would not vote to confirm her because he used standards that we believe shouldn't be used.

BLITZER: All right, Candy, did anything jump out at you during the course of these first few hours?

CANDY CROWLEY, CNN CORRESPONDENT: I think we have the structure now. We know what the Republicans are going to say and where they are, you know, on one side or the other of their line. We know the Democrats are going to say, listen, this is about case law. If you want to talk about how she's going to be as a judge, let's look at case law. So I think we just know what -- everything for the next several days, you know, regardless of whatever case it is, is going to be viewed in that perspective.

BLITZER: And I'm going to have Maria Echaveste and Alex Castellanos weigh in, in a moment but I want to take a quick break. As the Senate Judiciary Committee is in recess right now, they're having lunch, they're relaxing a little bit, they're getting ready for the final four Democrats to deliver their opening statements and then the culmination of this first historic day, the confirmation process, will culminate with the opening statement from Sonia Sotomayor herself. And we're going to try and get a little preview of what she's likely to say during her opening statement. We'll take a quick break, continue our coverage right after this.

(COMMERCIAL BREAK)

BLITZER: You're looking at the Senate Judiciary Committee hearing room in the Senate Hart Office Building up on Capitol Hill. Virtually empty right now. All the senators, the staff members, the top witness, Sonia Sotomayor herself, her family members, everyone else, they're basically taking a lunch break. They're expected to resume the confirmation hearings at 2:00 p.m. Eastern. A little bit more than an hour from now.

Four Democrats will have their opening statements. All seven Republicans have already made their opening statements. And then the Supreme Court nominee will be introduced by the two U.S. senators from the state of New York, Chuck Schumer, Kirsten Gillibrand. She will then make her opening statement.

Jeff Sessions, who's the top Republican on the committee, he delivered a very, very pointed statement, setting the stage for criticism of various positions that Sonia Sotomayor has taken over the years. And he also said this about prejudice.

(BEGIN VIDEO CLIP)

SEN. JEFF SESSIONS, (R) ALABAMA: And Judge Sotomayor's empathy for one group of fire fighters turned out to be prejudiced against another. That is, of course, the logical flaw in the empathy standard. Empathy for one party is always prejudiced against another.

(END VIDEO CLIP)

BLITZER: All right, let's talk about that with Maria Echaveste and Alex Castellanos.

Maria used to work in the Clinton White House. She now teaches at UC- Berkeley.

What's wrong with the assessment that Jeff Sessions just made on the Ricci case in New Haven where the white firefighters who all did well, relatively speaking, in that test, that test was thrown out because minorities, African-Americans and Hispanics, didn't do well?

MARIA ECHAVESTE, DEMOCRATIC CONSULTANT: I think that trying to put the court's decision, relying on empathy, what Senator Sessions said about empathy is prejudice towards one group is really is making a sound bite out of a very complicated issue. I think if you look at the record of that particular case, there's good reason to question what New Haven was doing. And I think that Senator Sessions is just focused on trying to paint her as a liberal activist, pro-minority judge and, therefore, not fit for the Supreme Court. And I think that ultimately you'll see that that's just an unfair characterization.

BLITZER: The position that she took was overturned by the Supreme Court, that Ricci case, in New Haven, Alex, in a 5-4 decision.

ALEX CASTELLANOS, REPUBLICAN CONSULTANT: Yes, it was. And again, Judge Sotomayor has described herself as a liberal. This is no one else's characterizations. This is her own.

In this particular case, the two fire chiefs in New Haven, one black, one white, said, no, these test results should stand. The court overruled them. The test was -- they worked on it long and hard to get a race neutral test. And, again, Judge Sotomayor dismissed it really in a summary order a couple of paragraphs without explaining her reasoning at all. So here you have a real issue. I think one thing America would love to see is the test. I would -- why isn't that test part of the public record? Why can't we all see it on cnn.com and see if it was fair or not.

BLITZER: Hold those thoughts for a moment. I want to walk over to our senior legal analyst Jeff Toobin.

You've studied this Ricci case. You've studied the Supreme Court decision. The 5-4 decision reversing the position that Sonia Sotomayor took in the appeals court. Go ahead and explain.

TOOBIN: Well, you know, we've put into the magic wall some of the big cases that Sonia Sotomayor has decided as an appeals court judge. And, of course, the one that keeps coming up is Ricci v. DeStefano, which is the case about the New Milford (ph) firefighters. And just to remind people what the case is really about.

The topic of the decision was a promotional exam was held by the New Haven Fire Department and most -- only white firefighters and one Hispanic firefighter did well enough for a promotion. New Haven was worried about a lawsuit from the African-American firefighters who didn't do as well, and so they cancelled the case -- they cancelled the test all together.

Well, the white fire fighters, including Frank Ricci, who is the lead lawyer -- the lead plaintiff in the case, she -- he sued and he lost in the district court and Sonia Sotomayor was part of a three-judge panel that affirmed the district court decision ruling for the city against the firefighter. And that case went to the Supreme Court just last month. And I think, as many people know, the Supreme Court ruled 5-4 that Ricci was discriminated against. That Ricci was right and the city of New Haven was wrong. And it's worth remembering that the position, supported by Judge Sotomayor, was supported by David Souter. So . . .

BLITZER: Who's retiring. Who's seat she's up for.

TOOBIN: Who's retiring and who's seat it is. So Souter and Sotomayor saw this case the same way, but the majority of the Supreme Court ruled the other way.

BLITZER: Including the swing vote, Justice Kennedy, who went with the five as opposed to with the four.

TOOBIN: Indeed. He wrote the opinion. That's right.

BLITZER: Yes, all right. Hold that thought. I want to walk over and bring Candy Crowley in because he's going to be testifying later in the week, Mr. Ricci himself. He's being asked by the minority, by the Republicans, to come in and make the case why she was wrong in this decision in which she and two other appeals court justices were reversed by the U.S. Supreme Court.

CROWLEY: What's interesting to me is, and I'm sure you get them, too, of all of the things that we have looked at in case law that we've discussed and her rulings, I've got more e-mail on the Ricci case than any other single thing about Sotomayor. And a connection between her decision on that case, actually the decision of the three-judge panel, but she's on it, obviously, and her remarks about a Latina woman being able to make a better decision than a wise white man -- a wise Latina woman. So there was a connection to those two that really sparked my e-mail, I have to tell you, that -- it made people upset.

BLITZER: It will be interesting, Gloria, to see if in her opening statement, which we expect shortly after 2:00 p.m. Eastern, maybe around 2:30 p.m. Eastern, because four more Democrats are going to be making statements, then she'll be introduced by the two New York senators, whether she specifically addresses, tries to deal with these most explosive criticisms of her -- you can see Mr. Ricci in that picture over there that we just put up on the screen -- or whether she tries to defuse it in her opening statement or she waits until the Q&A tomorrow.

BORGER: She may try and explain certain things, like the wise Latina remark. I would presume, though, that in terms of case law, she's ready with the answers to questions about it. I mean, the question that I have that I'd like to hear from her is that during the oral argument in that case, she was apparently quite vocal, asked an awful lot of questions, but then the three-judge panel ruled a very brief order. So we don't know much.

BLITZER: All right. Guys, hold your thoughts, because we're going to continue our coverage. They're in a break right now, the Senate Judiciary Committee. A lunch break. They will resume the hearing at 2:00 p.m. Eastern. We'll be here throughout the afternoon. We're anxious to hear what Sonia Sotomayor has to say. We're also going to stay on top of other news. Kyra Phillips will be joining us in just a minute. Our coverage will continue.

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