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Sotomayor's Supreme Court Confirmation Hearing is Underway; U.S. Marines Suffer Causalities in Afghanistan; Southwest Plane Damaged

Aired July 14, 2009 - 08:58   ET

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

HEIDI COLLINS, CNN ANCHOR: Good morning everybody. I'm Heidi Collins. It is Tuesday, July 14th and it is a big day in the CNN NEWSROOM.

Beginning this hour, live coverage of the Sonia Sotomayor Supreme Court confirmation hearing. Today the judge answers the senators' questions.

Plus, other news we are following: The U.S. Marine push in southern Afghanistan suffers causalities. We'll have the latest on the fighting there.

And a gaping hole in a plane. Southwest 737 is damaged while flying 34,000 feet in the air.

We'll have all of this for you but first this morning Sonia Sotomayor back on Capitol Hill, finally on the hot seat. In fact, just minutes from now, the next phase of her confirmation hearing gets under way. Senators will have their chance to question her and her qualifications for the highest court in the country.

CNN Congressional correspondent Brianna Keilar sets the stage.

(BEGIN VIDEOTAPE)

BRIANNA KEILAR, CNN CONGRESSIONAL CORRESPONDENT (voice-over): With Republicans will question statements Sotomayor has made off the bench in years past, especially this one. "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."

SEN. LINDSEY GRAHAM (R), SOUTH CAROLINA: It just bothers me when somebody wearing a robe takes the robe off and says that their experience makes them better than someone else. I think your experience can add a lot to the court, but I don't think it makes you better than anyone else.

KEILAR: Democrats say it's exactly that, her experience in the courtroom that makes her qualified to sit on the Supreme Court. And they argued there's nothing wrong with bringing life experience to the bench.

UNIDENTIFIED FEMALE: This should be unremarkable, and in fact, it's completely appropriate. After all, our own committee members demonstrate the value that comes from members who have different backgrounds and perspectives.

(END VIDEOTAPE)

HEIDI COLLINS, CNN ANCHOR: Brianna Keilar joining us now live from Capitol Hill.

So, Brianna, let's talk for a minute about the differences in strategy for today. The Republicans and the Democrats are definitely going to go about this differently in their questioning.

KEILAR: Yes. Republicans, of course, are going to focus a little bit on her record. They may -- they've hinted they're going to talk about that New Haven firefighters' case where Judge Sotomayor, as an appellate judge, ruled against white firefighters.

But what they're really going to spend a lot of time on, Heidi, is her off-the-bench remarks. I just ran into Senator Jeff Sessions, the top Republican on this committee, just a few minutes ago and he said this is a particular concern to him because there's a difference in his mind in being a Supreme Court justice versus an appellate judge.

He says when you're on the Supreme Court, there's this knowledge that no one's going to overrule you. He thinks there's more opportunity for opinion to drive decisions, and that's why he really wants to dissect, especially that wise Latina comment.

But Democrats here, Heidi, they are running defense. They are the friendlies here and they are going to be sticking, instead, to her record, her record, her record, to quote one aide, trying to show that if you look at her decisions, she is in the mainstream.

COLLINS: OK. Well, we are going to have Senator Sessions on the show in just a few minutes, as a matter of fact, Brianna, talking more about some of the things he said yesterday and what he will be talking about and questioning on today along with Senator Whitehouse. So make sure everybody sticks around for that.

Appreciate it, Brianna, another big day. Thank you.

About the only fireworks on the first day of Sotomayor's confirmation hearing came from anti-abortion protesters.

Four demonstrators were arrested, including the plaintiff in the landmark legal case Roe versus Wade. The woman known as Jane Roe in that 1973 Supreme Court ruling that legalized abortion is now a staunch opponent of abortion rights.

And as we mentioned in just a few minutes, we're going to be hearing from two members of the Senate Judiciary Committee, one Republican, one Democrat. They're going to be sharing their impressions from day one of the hearing and look ahead to exactly what will be going on today.

Make sure you stay with us, in fact, for our live coverage of this pivotal day of the confirmation hearing. Day two is set to get underway at the bottom of the hour. If you cannot watch it live on CNN, you can also see it on our Web site, just go to CNN.com.

Turning to other news now, President Obama believes community colleges could play a key role in getting our economy back on track. So today, the president is traveling to Warren, Michigan to announce a $12 billion 10-year plan to help those colleges.

Initiatives include challenge grants to help under-funded community colleges. The access and completion fund to provide performance-based scholarships, money to modernize and maintain facilities and opening online courses as an option to classroom instruction.

President Obama's nominee for surgeon general is a doctor who has put her patients' health above their ability to pay her. The president welcomed Dr. Regina Benjamin to the White House yesterday. The family practitioner founded a rural health clinic in Alabama back in 1990 and has been running it ever since. She rebuilt the clinic three times after hurricanes and a fire.

The House is scheduled to release its plan to overhaul health care today. Speaker Nancy Pelosi says she expects a House vote by the August recess. But, Pelosi says more changes to the bill are likely due to differences over how to pay for it.

The plan is expected to cost about $1 trillion over 10 years with much of that money helping people who cannot afford care.

The major U.S. offensive against militants in Afghanistan's Helmand Province coming at a cost. A military spokeswoman says two Marines were killed in a hostile incident on Monday. Some 4,000 Marines are pushing through Helmand Province in their biggest Afghan operation since 2001.

Federal investigators looking into what caused a hole to open on a Southwest Airlines jet flying at 34,000 feet. The plane was en route to Baltimore from Nashville yesterday when a football-sized hole in the fuselage caused the cabin to depressurize. The plane made an emergency landing in Charleston, West Virginia.

(BEGIN VIDEO CLIP)

SHERYL BRYANT, SOUTHWEST PASSENGER: We were seated about two rows back from the wing and about four rows back you heard this loud rush and your ears popped and then we looked back and you could tell that part of the inside was trying to pull out.

And it was really -- it was crazy and then the oxygen masks dropped and of course, I put mine on as I was instructed to, then put them on my kids. And - so, it was just crazy, though, but you're doing it, especially as a parent, you're doing a lot of talking and calming and that kind of thing and how you've never gone through this before.

(END VIDEO CLIP)

COLLINS: The airline said no one was hurt and all of the passengers made it to Baltimore safely on another plane.

Head over to the Severe Weather Center now where Jacqui Jeras is standing by to talk a little bit more about some storms that we've been hearing about, Jackie. What's the latest?

(WEATHER REPORT)

COLLINS: OK, very good. All right, Jacqui, nice to see you. Thanks so much.

NASA, meanwhile, will make a sixth attempt now to launch the shuttle Endeavor tomorrow. Yesterday's liftoff had to be scrubbed because of lightning. Endeavor has now been grounded for a month, first by leaks and then by storms.

The shuttle is carrying the last part of Japan's $1 billion space lab and something the space station crew is probably even more interested in, hundreds of pounds of food.

Senators are set to fire off their questions to Judge Sonia Sotomayor later this hour, but before they go into the hearing, I'm going to be talking with two members of the Senate Judiciary Committee, one of them the ranking member.

How did Sonia Sotomayor do on day one? And what do they want to hear from her today?

(COMMERCIAL BREAK)

COLLINS: A convicted murderer and another inmate serving time for rape are still at large. Two days after escaping from the Indiana State Prison, authorities say they escaped by traveling in tunnels under prison grounds.

A third escapee was caught yesterday about eight miles from the prison in southwestern Michigan. Police are urging residents in the area to be on alert.

Authorities in Florida have a fourth suspect in custody in the killing of a couple known for taking in special needs children. Byrd and Melanie Billings were shot to death while nine of their adopted children were also in the home.

Surveillance pictures from the house have helped investigators. Police expect an arrest -- to arrest a fifth suspect today and they are looking at other possible suspects.

(BEGIN VIDEO CLIP)

SHERIFF DAVID MORGAN, ESCAMBIA COUNTY, FLORIDA: We expect more arrests to be imminent in this case. These seem to take on a life of their own at some point and again we're very proud to announce that we hope to bring all of the suspects that we have identified early on in this case to justice very, very shortly.

(END VIDEO CLIP) COLLINS: Police say robbery is one motive in the case, but they believe other motives will come out of their investigation.

Senators, as you know, set to fire off their questions to Judge Sotomayor later this hour. But before they go into the hearing, we're going to be talking with two members of the committee. One of them, the ranking member. How did Sonia Sotomayor do on day one? What do they want to hear from her today?

(COMMERCIAL BREAK)

COLLINS: Judging Sonia Sotomayor. The Supreme Court nominee is just minutes away now from the second day of her confirmation hearings. What kind of questions will she face and what kind of impression did she make yesterday?

To answer that, two members of the Senate Judiciary Committee, Republican and ranking member, Jeff Sessions of Alabama, and Democrat Sheldon Whitehouse of Rhode Island.

Gentlemen, thanks for being with us on a busy day for you. We know it's just a few minutes away. Let's get started off the top here.

Senator Sessions, what do you want to hear from Judge Sotomayor today?

SEN. JEFF SESSIONS (R), ALABAMA: Well, she did a nice job yesterday. You know, she's an engaging person and certainly one that all of us can like personally. But I think she needs to follow up on the statement she gave yesterday. Because for the last 10, maybe 15 years, she's demonstrated a systemic philosophy that denigrates really the ideal of equal justice in which she raises question after question about the ability of judges in perhaps most cases to set aside their personal biases and sympathies and prejudices.

So I think that'll be what -- some of the things that will be talked about today, others will be the cases that she's ruled on.

COLLINS: All right. So you clearly have concerns. I understand you will be getting to them today.

Senator Whitehouse, what about you? What will you be looking for? What will you be listening for to come out of Judge Sonia Sotomayor's mouth?

SEN. SHELDON WHITEHOUSE (D), RHODE ISLAND: I think the two things that Judge Sotomayor should do are first to let Americans who are watching know a little bit more about who she is. She has one of the greatest American life stories of anyone. I mean, it's really impressive.

Here's a little girl who grew up in the projects in the Bronx with a single mom and you would have thought that she just didn't have chance. But through hard work and through discipline and through her native talent, here she is a candidate for the United States Supreme Court.

That's a story that needs to be told. I think the other point that she needs to make is that she's willing to take the extra step to listen to the unheard voice, to listen for the little guy. We have seen a lot of very tough decisions come out of the Supreme Court favoring big corporations against individuals.

Even to the point of requiring an elderly lady to have filed her lawsuit for unjust discrimination before she knew of the discrimination. So I think it's important to make sure that she will listen to all sides and not just the big side.

COLLINS: Yes. I find it fascinating the way the two of you just answered these questions because there was analyst on and unfortunately I can't remember who it was right now, who was just saying after the proceedings yesterday that it seems like the party in power always wants to talk about the personal side of the nominee and the opposing party wants to talk about ideology.

If it's a fair assessment, Senator Sessions, I'd love you ask you, do you want Justice -- or I should say, Judge Sonia Sotomayor to become Justice Sotomayor and be a member of the Supreme Court team?

SESSIONS: I'd hope that she can do that and do that in a way that comforts the American people that she's committed to the judicial oath, which is not to favor the poor or the rich. Indeed the oath is that we will do equal justice to the poor and to the rich. That we will be impartial and that will serve under the law, not above the law.

And some of her statements and philosophy which could well flower if she's on the Supreme Court with no other higher court in the land could really be detrimental to the American legal system.

I just believe a philosophy and the ethic of the American justice system is fabulous. And its objective justice, it's neutral judges who treat people fairly every day. No matter what their background. That's the essence of judging in America, justice and law in America, and I'm worried about some of the things she said and she'll get a chance to respond to that, but one statement at the day of a hearing does not necessarily wipe out a decade of contrary statements.

COLLINS: Well, and you are no stranger, too, of the proceedings yourself, obviously. So what was that? A yes or a no? How are you going to vote?

SESSIONS: Well, I'm not going to say how I am going to vote. A lot would depend on her day today. Yesterday was the senators, today she'll have a day to show herself and what she believes and she'll have favorable questions and she'll have a tough question, and it'll be interesting to see how well she does and not just how well she does, but what her real...

COLLINS: Yes.

SESSIONS: ... take is on the law. COLLINS: Understood. Senator Whitehouse, do you have any concerns whatsoever about this nominee?

WHITEHOUSE: I think she's in a very, very, very strong position between her life story, her 17 years of essentially completely uncontroversial and very able experience as a federal United States judge both on the district court and on the Circuit Court of Appeals.

As a former prosecutor, I think her experience in the trenches of law enforcement in the tough gritty streets of New York is a very important plus for her. And she has immense support from law enforcement organizations, civil rights organizations, all sorts of organizations across the country.

So she comes into this presenting a strong a position as a sensible, capable, experienced nominee as any justice this Senate has seen, probably in 100 years.

COLLINS: So no to the answer?

WHITEHOUSE: I don't see a problem.

COLLINS: Is the answer to my question about concerns. All right. To the two of you, we appreciate it. We know you have to get inside the hearings.

Senator Jeff Sessions from Alabama, the ranking member of the committee, and Senator Sheldon Whitehouse of Rhode Island. Thanks to the both of you. Sure do appreciate that.

SESSIONS: Thank you.

COLLINS: And we are hearing that the judge has arrived at the building. I wanted to give you some live pictures that we are able to get out of the confirmation hearing room there right there as you can see. Everyone getting into position to begin.

We're just about eight minutes away or so from the top of this. Again the second day of the Sonia Sotomayor confirmation hearings.

I'm Heidi Collins, and in just a few minutes, CNN's Wolf Blitzer will take over our coverage as the Supreme Court nominee faces these questions from the Senate Judiciary Committee.

(COMMERCIAL BREAK)

WOLF BLITZER, CNN HOST: The United States Supreme Court at issue today. Day two of the Sonia Sotomayor confirmation hearings. Really day one of the questioning. Yesterday all the opening statements, 12 Democrats, seven Republicans, and one Supreme Court justice nominee.

They made their opening statements. There were no questions yesterday, but this morning, within a few moments, Patrick Leahy, the chairman of the Judiciary Committee will begin the questioning and then they will go down 18 more senators, each will have 30 minutes uninterrupted questioning for the Supreme Court justice nominee. We've got the best political team on television here ready to assess, to analyze what's going on. Let's go up to the Hill for our CNN senior congressional correspondent, Dana Bash is there.

Set the scene for us, Dana. This is going to be an historic and important day.

DANA BASH, CNN SENIOR CONGRESSIONAL CORRESPONDENT: It sure will. And as you said yesterday, we heard the senators give their opening statements and Judge Sotomayor do the same. But today is going to be the first chance for her to get these tough questions, both from Democrats and Republicans.

We definitely expect Democrats to do their best to bring out some of the credentials that they say she has. Credentials, they say, that are better than pretty much anybody who has been nominated in recent past.

But as for Republicans, obviously, those are the questions we're going to be listening most intently to. And Wolf, I can tell you, just in talking to one Republican aide this morning, they said that the key scene that they're trying to bring out is where her advocacy coincided with her rulings as a judge.

So clearly we're going to hear about the wise Latina comment. We're going to hear, even more broadly, about her discussions off the bench about where her personal views may coincide in a bad way from Republicans' point of view with her decisions on the bench.

But we're also going to hear some examples of decisions and rulings that she made even recently in the past couple of years that may do the same. One interesting note, though, we've been talking a lot about her personal point of view. One thing to listen to and listen for is her position on guns.

Orrin Hatch in particular has a vested interest in talking about that, other Republican senators might, as well, because that is an area, the Second Amendment, where they might be able to get some conservative Democrats, maybe, maybe Republicans to think -- question on whether or not she's the right person for the job.

BLITZER: And she's in the room right now. Her office building, the Chairman Patrick Leahy, others welcoming her. There's no doubt, there's no doubt that most of these substantive issues, there will be some strong questioning by these senators, including Democrats. They're going to ask some tough questions and give her a chance to make her case.

John King is here with us, the host of CNN's "STATE OF THE UNION."

John, what are you going to be looking for principally in this initial round of questioning?

JOHN KING, ANCHOR, "STATE OF THE UNION": How tough the Republicans will be. Very tough opening statements from the Republicans, some of them a bit tougher than the White House anticipated.

Wolf, the White House still believes they can get three, maybe four, Republican votes on this committee. But it comes down today on gun rights, on law and order issues, on as Dana said, try to connect some of her personal views to her judicial rulings.

We're going to see what Judge Sotomayor is made of today because the Republicans promised to come at her with some tough questions. As Lindsey Graham said yesterday she is on a path to be confirmed unless she has what he called a major meltdown. That will be the big test today, how does she perform under this big spotlight.

BLITZER: You're absolutely right. And Gloria Borger is here, as well.

Gloria, Orrin Hatch this morning on CNN, on CNN's "AMERICAN MORNING". He basically said he's inclined to vote in favor of her confirmation. So that was -- that would be a very significant development if you get a senior Republican like that, a former chairman of the Judiciary Committee, on board.

GLORIA BORGER, CNN SENIOR POLITICAL ANALYST: It would be significant and he sort of gave us a hint about that yesterday in the way he handled her. But I think what Republicans are going to try and do today is say that she's not in the mainstream, that in fact, she is too ideological, Wolf.

And the Democrats will say she is in the mainstream, just don't look at those statements like wise Latina, look, in fact, at her rulings and you will find that she has ruled more often than not with the majority of her colleagues and has not shown herself to be a judge out of the mainstream at all.

BLITZER: And another Republican, Jeff Toobin, who seemed to be open-minded about this nominee is Lindsey Graham of South Carolina.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Gave certainly, I think, the most entertaining opening statement. He's the one who said that she'd be confirmed if she didn't have a major meltdown.

But two things, I think, we should keep an eye out for. We have not heard a lot about the staple of confirmation controversy, which is abortion rights. Are the Republicans shying away from it? Is it because she's doesn't have a record? I'd be interested for that. The other is same-sex marriage. Almost no reference...

BLITZER: Here the gavel is just coming downright now. It looks like the chairman is beginning.

SEN. PATRICK LEAHY (D), JUDICIARY CHAIRMAN: Just so we can understand what's going on, I'm not sure whether we have votes or not today. The extent if we do have votes or the extent that we can keep the hearing going during votes and have different senators leave between them.

We will, if we can't, then our recess for those votes. I will also have -- I guess we're one minute early here. The way the traffic was today, I think some people are still having trouble getting in here. I

We've talked with Senator Sessions about this -- excuse me. And what we're going to do is have 30 minute rounds. We will go back and forth between -- between sides. And senator will be recognized based on seniority, if they're there. If not, then we'll go to -- we'll go to the next person.

And with that, as I said yesterday when we concluded, and now the American people finally have heard from Judge Sotomayor, and I appreciate your opening statement yesterday. You've had weeks of silence. You have followed the traditional way of nominees. I think you've visited more senators than any nominee I know of for just about any position.

But the -- we get used to the traditional, the press is outside, questions are asked, you give a nice wave and keep going. But finally you're able to speak, and I think your statement yesterday went a long way to answering the critic and the naysayers.

And so we're going to start with the questions here. I would hope that everybody will keep their questions pertaining to you and to your background as a judge. You're going to be the first Supreme Court nominee in more than 50 years who served as a federal trial court judge, the first in 50 years to have served as both a federal trial court and a federal appellate court judge.

Let me ask you the obvious one. What are the qualities that a judge should possess. I mean, you've had time on both the trial court and the appellate court. What qualities should a judge have and how does that experience you've had -- how does that shape your approach -- your approach to being on the bench?

JUDGE SONIA SOTOMAYOR, SUPREME COURT NOMINEE: Senator Leahy, yesterday, many of the senators emphasized that their -- the values they thought were important for judging, and central to many of their comments was the fact that a judge had to come to the process understanding the importance and respect the Constitution must receive in the judging process and an understanding that that respect is guided by, and should be guided by, a full appreciation of the limited jurisdiction of the court in our system of government, but understanding its importance as well.

That is the central part of judging. What my experiences on the trial court and the appellate court have reinforced for me is that the process of judging is a process of keeping an open mind. It's the process of not coming to a decision with a pre-judgment ever of an outcome and that reaching a conclusion has to start with understanding what the parties are arguing, but examining in all situations carefully the facts as they prove them or not prove them, the record as they create it, and then making a decision that is limited to what the law says on the facts before the judge.

LEAHY: Well, you -- let's go into some of the particulars on this. One of the things that I found appealing in your record, that you were a prosecutor, as many of us, both the ranking member and I had that privilege, and you worked on the front lines, an assistant district attorney in the Manhattan D.A.'s office.

Your former boss, District Attorney Robert Morgenthal, the dean of the American Prosecutors, said one of the most important cases you worked on was the prosecution of the man known as the Tarzan Burglar. He terrorized people in Harlem. He would swing on ropes into their apartments and rob them and steal, and actually killed three people.

Your co-counsel, Hugh Mo, described how you threw yourself into every aspect of the investigation, the prosecution of the case. You helped to secure a conviction, sentence of 62 years to life for the murders. Your co-counsel described you, quote, as a "Skilled legal practitioner who not only ruthlessly pursued justice for victims of violent crimes, but understood the root cause of crime and how to curb it."

How did that experience -- did that experience shape your views in any way as -- both as a lawyer but also as a judge? I mean, this was getting into about as nitty-gritty as you could into the whole area of criminal law.

SOTOMAYOR: I became a lawyer in the prosecutor's office. To this day, I owe who I have become as a -- who I became as a lawyer and who have --who I have become as a judge to Mr. Morgenthal. He gave me a privilege and honor in working in his office that has shaped my life.

When I say I became a lawyer in his office, it's because in law school, law schools teach you on hypotheticals.

SOTOMAYOR: They set forth facts for you. They give you a little bit of teaching on how those facts are developed, but not a whole lot. And then they ask you to opine about legal theory and apply legal theory to the facts before you.

Well, when you work in a prosecutor's office, you understand that the law is not legal theory. It's facts. It's what witnesses say and don't say. It's how you develop your position in the record. And then it's taking those facts and making arguments based on the law as it exists.

That's what I took with me as a trial judge. It's what I take with me as an appellate judge. It is respect that each case gets decided case by case, applying the law as it exists to the facts before you.

You asked me a second question about the Tarzan murderer case, and that case brought to life for me in a way that perhaps no other case had fully done before the tragic consequences of needless deaths.

In that case, Mr. Maddicks was dubbed "the Tarzan murderer" by the press because he used acrobatic feats to gain entry into apartments. In one case, he took a rope, placed it on a pipe on top of a roof, put a paint can at the other end, and threw it into a window in a building below and broke the window. He then swung himself into the apartment and, on the other side, shot a person he found. He did that repeatedly, and, as a result, he destroyed families. I saw a family that had been in tact, with a mother living with three of her children, some grandchildren. They all worked at various jobs. Some were going to school.

They stood as they watched one of their -- the mother stood as she watched one of her children be struck by a bullet that Mr. Maddicks fired and killed him because the bullet struck the middle of his head.

That family was destroyed. They scattered to the four winds, and only one brother remained in New York who could testify. That case taught me that prosecutors, as all participants in the justice system, must be sensitive to the price that crime imposes on our entire society.

At the same time, as a prosecutor in that case, I had to consider how to ensure that the presentation of that case would be fully understood by jurors. And to do that, it was important for us as prosecutors to be able to present those number of incidences that Mr. Maddicks had engaged in, in one trial, so the full extent of his conduct could be determined by a jury.

SOTOMAYOR: There had never been a case quite like that, where an individual who used different acrobatic feats to gain entry into an apartment was tried with all of his crimes in one indictment. I researched very carefully the law and found a theory in New York law, called the Molyneax (ph) theory then, that -- that basically said if you can show a pattern that established a person's identity or assisted in establishing a person's identity -- simplifying the argument, by the way -- then you can try different cases together.

This was not a conspiracy under law because Mr. Maddicks acted alone. So I had to find a different theory to bring all his acts together. Well, a presented that to the trial judge. It was a different application of the law. But what I did was draw on the principles of the Molyneax (ph) theory. And arguing those principles to the judge, the judge permitted that joint trial of all of Mr. Maddox's activities.

In the end, carefully developing the facts in the case, making my record -- our record, I should say -- Mr. Moe's (ph) and my record complete -- we convinced the judge that our theory was supported by law.

That harkens back to my earlier answer which is that's what being a trial judge teaches you.

LEAHY: And you -- so you see it from both ends having, obviously, to a novel theory and now a theory that is well established in the law but was novel at that time. But you also, as a trial judge, you've seen theories brought in by prosecutors or by defense and you have to make your decisions based on those.

The fairly easy answer to that is you do, do you not? SOTOMAYOR: Well, it's important to remember that, as a judge, I don't make law. And so the task for me as a judge is not to accept or not accept new theories; it's to decide whether the law, as it exists, has principles that apply to new situations.

LEAHY: Let's go into that because I -- you know, obviously, the Tarzan case is -- was unique at least. And as I said, Mr. Morgenthal singled that out as an example of the kind of lawyer you are.

And I find compelling your story about being in the apartment. I've stood in homes at three o'clock in the morning as they're carrying the body out from a murder. I can understand how you're feeling. But in applying the law and applying the facts, you told me once that, ultimately and completely, the law is what controls.

And I was struck by that when you did. And so there's been a great deal of talk about the Ricci case -- Ricci v. DeStephano. And you and two other judges were assigned this appeal involving firefighters in New Haven. The plaintiffs were challenging the decision to voluntarily discard the result of a paper-and-pencil test to measure leadership abilities.

LEAHY: Now, the legal issue that was presented to you in that case was not a new one, not in your circuit. In fact, there was a unanimous decade's old Supreme Court decision as well. In addition, in 1991, Congress acted to reinforce (INAUDIBLE) the law.

I might note that every Republican member of this committee still serving in the Senate supported that statement of the law. So you have a binding precedent. You and two other judges came to a unanimous decision. Your decision deferred to the district court's ruling allowing the city's voluntary determination that could not justify using that paper-and-pencil test under our civil rights laws and settled -- you said it was settled judicial precedent.

A majority of the Second Circuit later voted not to revisit the panel's unanimous decision; therefore, they upheld your decision.

So you had Supreme Court precedent. You had your circuit precedent. You upheld within the circuit. Subsequently, it went to the Supreme Court and five -- a bare majority -- five justices reversed the decision, and reversed their precedent, and many have said that they created a new interpretation of the law.

Ironically, if you had done something other than follow the precedent, some would be now attacking you as being an activist. You followed the precedent. So now they attack you as being biased and racist. It's kind of a unique thing. You're damned if you do and damned if you don't.

How do you react to the Supreme Court's decision in the New Haven firefighters case?

SOTOMAYOR: You are correct, Senator, that the panel, made up of myself and two other judges in the Second Circuit, decided that case on the basis of the very thorough 78-page decision by the district court and on the basis of established precedent.

The issue was not what we would do or not do, because we were following precedent, and you, when on (ph) circuit court, are obligated on a panel to follow established circuit precedent. The issue in Ricci was what the city did or could do when it was presented with a challenge to one of its tests that -- for promotion.

This was not a quota case; this was not an affirmative action case. This was a challenge to a test that everybody agreed had a very wide difference between the pass rate of a variety of different groups.

The city was faced with the possibility recognized in law that the employees who were disparately impacted -- that's the terminology used in the law and is a part of the civil rights amendment that you were talking about in 1991 -- that those employees who could show a disparate impact, a disproportionate pass rate, that they could bring a suit and that then the employer had to defend the test that it gave.

The city here, after a number of days of hearings and a variety of different witnesses, decided that it wouldn't certify the test and it wouldn't certify it in an attempt to determine whether they could develop a test that was of equal value in measuring qualifications, but which didn't have a disparate impact.

And so the question before the panel was, was the decision a -- of the city based on race or based on its understanding of what the law required it to do?

SOTOMAYOR: Given Second Circuit precedent, Bushey v. New York State -- New York State Civil Services Commission, the panel concluded that the city's decision in that particular situation was lawful under established law.

The Supreme Court, in looking and review that case, applied a new standard. In fact, it announced that it was applying a standard from a different area of law and explaining to employers and the courts below how to look at this question in the future.

LEAHY: But when you were deciding the -- when you were deciding it, you had precedent from the Supreme Court and from your circuit that basically determined how -- determined the outcome you had to come up with. Is that correct?

SOTOMAYOR: Absolutely.

LEAHY: And if today, now that the Supreme Court has changed their decision without you having to relitigate the case, it would -- it may open, obviously, a different result. Certainly, the circuit would be bound by the new decision even though it's only a 5-to-4 decision, a circuit would be bound by the new decision of the Supreme Court. Is that correct?

SOTOMAYOR: Absolutely, sir.

LEAHY: Thank you. SOTOMAYOR: That is now the statement of the Supreme Court of how employers and the Court should examine this issue.

LEAHY: During the course of this nomination, there have been some unfortunate comments, including outrageous charges of racism made about you on radio and television. Some -- one person referred to you as being the equivalent of the head of the Ku Klux Klan. Another leader in the other party referred to you as -- as being a bigot.

And to the credit of the senators, the Republican senators as well as the Democratic senators, they have not repeated those charges. But you haven't been able to respond to any of these things. You've had to be quiet. Your critics have taken a line out of your speeches and twisted it, in my view, to mean something you never intended.

You said that, quote, you "would hope that a wise Latina woman with the richness of her experiences would reach wise decisions." I remember other justices -- the most recent one, Justice Alito -- talking about the experience of his immigrants -- the immigrants in his family and how that would influence his thinking and help him reach decisions.

What -- and you also said in your speech, I quote, that you "love America and value its lessons," that great things could be achieved in one works hard for it.

And then you said judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of the fairness and integrity based on reason of law. And I'll throw one more quote in there. It's what you told me that ultimately and completely, the law is what counts -- or the law is what controls.

So tell us, you've heard all of these charges and countercharges, the wise Latina and on and on. Here's your chance. You tell us -- you tell us what's going on here, Judge.

SOTOMAYOR: Thank you for giving me an opportunity to explain my remarks.

No words I have ever spoken for written have received so much attention.

(LAUGHTER)

SOTOMAYOR: I gave a variant of my speech to a variety of different groups, most often to groups of women lawyers or to groups, most particularly, of young Latino lawyers and students.

As my speech made clear in one of the quotes that you reference, I was trying to inspire them to believe that their life experiences would enrich the legal system, because different life experiences and backgrounds always do. I don't think that there is a quarrel with that in our society.

I was also trying to inspire them to believe that they could become anything they wanted to become, just as I had. The context of the words that I spoke have created a misunderstanding, and I want -- and misunderstanding -- and to give everyone assurances, I want to state up front, unequivocally and without doubt, I do not believe that any ethnic, racial or gender group has an advantage in sound judging. I do believe that every person has an equal opportunity to be a good and wise judge regardless of their background or life experiences.

What -- the words that I use, I used agreeing with the sentiment that Justice Sandra Day O'Connor was attempting to convey. I understood that sentiment to be what I just spoke about, which is that both men and women were equally capable of being wise and fair judges.

That has to be what she meant, because judges disagree about legal outcomes all of the time -- or I shouldn't say all of the time, at least in close cases they do. Justices on the Supreme Court come to different conclusions. It can't mean that one of them is unwise, despite the fact that some people think that.

So her literal words couldn't have meant what they said. She had to have meant that she was talking about the equal value of the capacity to be fair and impartial.

LEAHY: Well, and isn't that what -- you've been on the bench for 17 years. Have you set your goal to be fair and show integrity, based on the law?

SOTOMAYOR: I believe my 17-year record on the two courts would show that, in every case that I render, I first decide what the law requires under the facts before me, and that what I do is explain to litigants why the law requires a result. And whether their position is sympathetic or not, I explain why the result is commanded by law.

LEAHY: Well, and doesn't your oath of office actually require you to do that?

SOTOMAYOR: That is the fundamental job of a judge.

LEAHY: Good.

Let me (ph) talk to you about another decision that's been talked about, District of Columbia v. Heller.

(END OF COVERAGE)

BLITZER: All right. Those are the two dramatic moments right now. The Ricci case, the wise Latina woman comment and she makes for the first time, her case, her explanation why she decided on the Ricci case, the firefighter's case in New Haven, Connecticut. Why she made that decision and why she said what she said about a wise Latina woman.

We're going to assess what's going on, continue our coverage of these historic hearings right after this.

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