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Sonia Sotomayor Faces Day Two of Senate Confirmation Hearings

Aired July 14, 2009 - 10:00   ET

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

WOLF BLTZER, CNN HOST: Sensitive issue of guns and the Second Amendment and whether the Second Amendment applies only to the federal government or to states. A sensitive issue for Sonia Sotomayor. She's being grilled on that right now by the chairman of the Judiciary Committee.

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JUDGE SONIA SOTOMAYOR, SUPREME COURT NOMINEE: ... understand that how important the right to bears arms is to many, many Americans. In fact, one of my godchildren is a member of the NRA and I have friends who hunt. I understand the individual right, fully, that the Supreme Court recognized in Heller.

As you pointed out, Senator, in the Heller decision, the Supreme Court was addressing a very narrow issue, which was whether an individual right under the Second Amendment applied to limit the federal government's rights to regulate the possession of firearms. The court expressly -- Justice Scalia in a footnote -- identified that there was Supreme Court precedent that has said that that right is not incorporated against the states. What that term of incorporation means in the law is that that right doesn't apply to the states in its regulation of its relationship with its citizens.

In Supreme Court province (ph), the right is not fundamental. It's a legal term. It's not talking about the importance of the right in a legal term. It's talking about is that right incorporated against the states.

When Maloney (ph) came before the Second Circuit, as you indicated, myself and two other judges read what the Supreme Court said, saw that it had not explicitly rejected its precedent on application to the states and followed that precedent because it's the job of the Supreme Court to change it.

SEN. PATRICK J. LEAHY (D-VT.), SENATE JUDICIARY CHAIRMAN: Well...

SOTOMAYOR: You asked me -- I'm sorry, Senator. I didn't mean...

LEAHY: No, no, go ahead.

SOTOMAYOR: ... to cut you off.

LEAHY: No, go ahead.

SOTOMAYOR: If you asked me whether I have an open mind on that question, absolutely. My decision in Maloney (ph) and on any case of this type would be to follow the precedent of the Supreme Court when it speaks directly on an issue. And I would not prejudge any question that came before me if I was a justice on the Supreme Court.

LEAHY: Let me just ask -- I just asked Senator Sessions if he might have one -- might want to ask one more question. And it goes to the area of prosecution. You've heard appeals in over 800 criminal cases. You affirmed 98 percent of the convictions for violent crimes, including terrorism cases. Ninety-nine percent of the time at least one of the Republican appointed judges on the panel agreed with you.

Let me just ask you about one, the United States vs. Giordano. It was a conviction against the mayor of Waterbury, Connecticut. The victim in that case are the young daughter and niece of a prostitute, young children who as young as nine and 11 were forced to engage in sexual acts with the defendant. The mayor was convicted under a law passed by Congress prohibiting the use of any facility or means of interstate commerce to transmit or contact information about persons under 16 for the purpose of illegal sexual activity.

You spoke for a unanimous panel in the Second Circuit, which included Judge Jacobs and Judge Hall. You upheld that conviction against the constitutional challenge that the federal criminal statute in question exceeded Congress' power in the commerce clause. I mention that only because I appreciate your deference to the constitutional congressional authority to prohibit illegal conduct. Did you have any difficulty in reaching the conclusion you did in the -- in the Giordano case?

SOTOMAYOR: No, sir.

LEAHY: Thank you. I'm glad you reached it.

Senator Sessions?

And I appreciate Senator Sessions' forbearance.

SEN. JEFF SESSIONS (R-ALA.), RANKING MEMBER, JUDICIARY COMMITTEE: Welcome. It's good to have you back, Judge, and your family and friends and supporters. And I hope we'll have a good day today, look forward to dialogue with you. I got to say that I liked your statement on the fidelity of the law yesterday and some of your comments this morning.

And I also have to say had you been saying that with clarity over the last decade or 15 years, we'd have a lot fewer problems today because you have evidenced, I think it's quite clear, a philosophy of the law that suggests that the judge's background and experiences can and should -- even should and naturally will impact their decision -- what I think goes against the American ideal and oath that a judge takes to be fair to every party. And every day when they put on that robe, that is a symbol that they're to put aside their personal biases and prejudices.

So I'd like to ask you a few things about it. I would just note that it's not just one sentence, as my chairman suggested, that causes us difficulty. It's a body of thought over a period of years that causes us difficulties.

And I would suggest that the quotation he gave was not exactly right of the wise Latina comment that you made. You've said, I think six different times, quote, "I would hope that a wise Latina woman, with the richness of her experiences, would more often than not reach a better conclusion."

So that's a matter that I think we'll talk about as we go forward.

Let me recall that yesterday you said it's simple fidelity to the law. The task of a judge is not to make law, it's to apply law. I heartily agree with that. However, you previously have said the court of appeals is where policy is made. And you said on another occasion the law that lawyers practice and judge declare is not a definitive -- capital L -- Law that many would like to think exists," close quote.

So I guess I'm asking today what do you really believe on those subjects. That there is no real law and that judges do not make law? Or that there is no real law and the court of appeals is where policy is made? Discuss that with us, please.

SOTOMAYOR: I believe my record of 17 years demonstrates fully that I do believe that law -- that judges must apply the law and not make the law. Whether I've agreed with a party or not, found them sympathetic or not, in every case I have decided, I have done what the law requires.

With respect to judges making policy, I assume, Senator, that you were referring to a remark that I made in a Duke Law student dialogue. That remark, in context, made very clear that I wasn't talking about the policy reflected in the law that Congress makes. That's the job of Congress to decide what the policy should be for society.

In that conversation with the students, I was focusing on what district court judges do and what circuit court judges do. And I know noted that district court judges find the facts, and they apply the facts to the individual case. And when they do that, they're holding, they're finding doesn't bind anybody else.

Appellate judges, however, establish precedent. They decide what the law says in a particular situation. That precedent has policy ramifications because it binds not just the litigants in that case, it binds all litigants in similar cases, in cases that may be influenced by that precedent.

I think if my speech is heard outside of the minute and a half that YouTube presents and its full context examined, that it is very clear that I was talking about the policy ramifications of precedent and never talking about appellate judges or courts making the policy that Congress makes.

SESSIONS: Judge, I would just say, I don't think it's that clear. I looked at that on tape several times, and I think a person could reasonably believe it meant more than that. But yesterday you spoke about your approach to rendering opinions and said, quote, "I seek to strengthen both the rule of law and faith in the impartiality of the justice system," and I would agree. But you have previously said this: "I am willing to accept that we who judge must not deny differences resulting from experiences and heritage, but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate."

So first, I'd like to know, do you think there's any circumstance in which a judge should allow their prejudices to impact their decision-making?

SOTOMAYOR: Never their prejudices. I was talking about the very important goal of the justice system is to ensure that the personal biases and prejudices of a judge do not influence the outcome of a case.

What I was talking about was the obligation of judges to examine what they're feeling as they're adjudicating a case and to ensure that that's not influencing the outcome. Life experiences have to influence you. We're not robots to listen to evidence and don't have feelings. We have to recognize those feelings and put them aside. That's what my speech was saying ...

SESSIONS: Well, Judge ...

SOTOMAYOR: ... because that's our job.

SESSIONS: But the statement was, "I willingly accept that we who judge must not deny the differences resulting from experience and heritage, but continuously to judge when those opinions, sympathies and prejudices are appropriate." That's exactly opposite of what you're saying, is it not?

SOTOMAYOR: I don't believe so, Senator, because all I was saying is, because we have feelings and different experiences, we can be led to believe that our experiences are appropriate. We have to be open- minded to accept that they may not be, and that we have to judge always that we're not letting those things determine the outcome. But there are situations in which some experiences are important in the process of judging, because the law asks us to use those experiences.

SESSIONS: Well, I understand that, but let me just follow up that you say in your statement that you want to do what you can to increase the faith and the impartiality of our system, but isn't it true this statement suggests that you accept that there may be sympathies, prejudices and opinions that legitimately can influence a judge's decision? And how can that further faith in the impartiality of the system?

SOTOMAYOR: I think the system is strengthened when judges don't assume they're impartial, but when judges test themselves to identify when their emotions are driving a result, or their experience are driving a result and the law is not.

SESSIONS: I agree with that. I know one judge that says that if he has a feeling about a case, he tells his law clerks to, "Watch me. I do not want my biases, sympathies or prejudices to influence this decision, which I've taken an oath to make sure is impartial." I just am very concerned that what you're saying today is quite inconsistent with your statement that you willingly accept that your sympathies, opinions and prejudices may influence your decision-making.

SOTOMAYOR: Well, as I have tried to explain, what I try to do is to ensure that they're not. If I ignore them and believe that I'm acting without them, without looking at them and testing that I'm not, then I could, unconsciously or otherwise, be led to be doing the exact thing I don't want to do, which is to let something but the law command the result.

SESSIONS: Well, yesterday, you also said that your decisions have always been made to serve the larger interest of impartial justice, a good -- good aspiration, I agree. But in the past, you've repeatedly said this: "I wonder whether achieving the goal of impartiality is possible at all in even most cases and I wonder whether by ignoring our differences as women, men or people of color we do a disservice to both the law and society." Aren't you saying there that you expect your background and -- and heritage to influence your decision-making?

SOTOMAYOR: What I was speaking about in that speech was -- harkened back to what we were just talking about a few minutes ago, which is life experiences to influence us in good ways. That's why we seek the enrichment of our legal system from life experiences.

That can affect what we see or how we feel, but that's not what drives a result. The impartiality is an understanding that the law is what commands the result.

And so, to the extent that we are asking the questions, as most of my speech was an academic discussion about, what should we be thinking about, what should we be considering in this process, and accepting that life experiences could make a difference. But I wasn't encouraging the belief or attempting to encourage the belief that I thought that that should drive the result.

SESSIONS: Judge, I -- I think it's consistent in the comments I've quoted to you and your previous statements that you do believe that your backgrounds will accept -- affect the result in cases, and that's troubling me. So that is not impartiality.

Don't you think that is not consistent with your statement, that you believe your role as a judge is to serve the larger interest of impartial justice?

SOTOMAYOR: No, sir. As I've indicated, my record shows that at no point or time have I ever permitted my personal views or sympathies to influence an outcome of a case. In every case where I have identified a sympathy, I have articulated it and explained to the litigant why the law requires a different result.

SESSIONS: Judge...

SOTOMAYOR: I do not permit my sympathies, personal views, or prejudices to influence the outcome of my cases.

SESSIONS: Well, you -- you -- you said something similar to that yesterday, that in each case I applied the law to the facts at hand, but you've repeatedly made this statement: Quote, I "accept the proposition" -- I "accept the proposition that a difference there will be by the presence of women and people of color on the bench, and that my experiences affect the facts I choose to see as a judge."

First, that's troubling to me as a lawyer. When I present evidence, I expect the judge to hear and see all the evidence that gets presented. How is it appropriate for a judge ever to say that they will choose to see some facts and not others?

SOTOMAYOR: It's not a question of choosing to see some facts or another, Senator. I didn't intend to suggest that. And in the wider context, what I believe I was -- the point I was making was that our life experiences do permit us to see some facts and understand them more easily than others.

But in the end, you're absolutely right. That's why we have appellate judges that are more than one judge because each of us, from our life experiences, will more easily see different perspectives argued by parties.

But judges do consider all of the arguments of litigants. I have. Most of my opinions, if not all of them, explain to parties by the law requires what it does.

SESSIONS: Do you stand by your statement that my experiences affect the facts I choose to see?

SOTOMAYOR: No, sir. I don't stand by the understanding of that statement that I will ignore other facts or other experiences because I haven't had them. I do believe that life experiences are important to the process of judging. They help you to understand and listen but that the law requires a result. And it would command you to the facts that are relevant to the disposition of the case.

SESSIONS: Well, I will just note you made that statement in individual speeches about seven times over a number of years span. And it's concerning to me.

So I would just say to you I believe in Judge Seiderbaum's (ph) formulation. She said -- and you disagreed. And this was really the context of your speech. And you used her -- her statement as sort of a beginning of your discussion.

And you said she believes that a judge, no matter what their gender or background, should strive to reach the same conclusion. And she believes that's possible.

You then argued that you don't think it's possible in all, maybe even most, cases. You deal with the famous quote of Justice O'Connor in which she says a wise old man should reach the same decision as a wise old woman. And you pushed backed from that. You say you don't think that's necessarily accurate. And you doubt the ability to be objective in your analysis.

So how can you reconcile your speeches which repeatedly assert that impartiality is a near aspiration which may not be possible in all or even most cases with your oath that you've taken twice which requires impartiality?

SOTOMAYOR: My friend, Judge Seiderbaum (ph) is here this afternoon, and we are good friends. And I believe that we both approach judging in the same way which is looking at the facts of each individual case and applying the law to those facts.

I also, as I explained, was using a rhetorical flourish that fell flat. I knew that Justice O'Connor couldn't have meant that if judges reached different conclusions -- legal conclusions -- that one of them wasn't wise.

That couldn't have been her meaning, because reasonable judges disagree on legal conclusions in some cases. So I was trying to play on her words. My play was -- fell flat.

It was bad, because it left an impression that I believed that life experiences commanded a result in a case, but that's clearly not what I do as a judge. It's clearly not what I intended in the context of my broader speech, which was attempting to inspire young Hispanic, Latino students and lawyers to believe that their life experiences added value to the process.

SESSIONS: Well, I can see that, perhaps as a -- a lay person's approach to it. But as a judge who's taken this oath, I'm very troubled that you had repeatedly, over a decade or more, made statements that consistently -- any fair reading of these speeches -- consistently argues that this ideal and commitment I believe every judge is committed, must be, to put aside their personal experiences and biases and make sure that that person before them gets a fair day in court.

Judge, on the -- so philosophy can impact your judging. I think it's much more likely to reach full flower if you sit on the Supreme Court, and then you will -- than it will on a lower court where you're subject to review by your colleagues in the higher court.

And so, with regard to how you approach law and your personal experiences, let's look at the New Haven firefighters case, the Ricci case. In that case, the city of New Haven told firefighters that they would take an exam, set forth the process for it, that would determine who would be eligible for promotion.

The city spent a good deal of time and money on the exam to make it a fair test of a person's ability to see -- to serve as a supervisory fireman, which, in fact, has the awesome responsibility at times to send their firemen into a dangerous building that's on fire, and they had a panel that did oral exams and not -- wasn't all written, consisting of one Hispanic and one African-American and -- and one white.

And according to the Supreme Court, this is what the Supreme Court held: The New Haven officials were careful to ensure broad racial participation in the design of the test and its administration. The process was open and fair. There was no genuine dispute that the examinations were job-related and consistent with business purposes, business necessity.

But after -- but after the city saw the results of the exam, it threw out those results, because, quote, "not enough of one group did well enough on the test."

The Supreme Court then found that the city, and I quote, "rejected the test results solely because the higher scoring candidates were white. After the tests were completed, the raw racial results became the -- raw racial results became the predominant rationale for the city's refusal to certify the results," close quote.

So you stated that your background affects the facts that you choose to see. Was the fact that the New Haven firefighters had been subject to discrimination one of the facts you chose not to see in this case?

SOTOMAYOR: No, sir. The panel was composed of me and two other judges. In a very similar case of the 7th Circuit in an opinion offered by Judge Easterbrook -- I'm sorry. I misspoke. It wasn't Judge Easterbrook. It was Judge Posner -- saw the case in an identical way. And neither judge -- I've confused some statements that Senator Leahy made with this case. And I apologize.

In a very similar case, the 6th Circuit approached a very similar issue in the same way. So a variety of different judges on the appellate court were looking at the case in light of established Supreme Court and 2nd Circuit precedent and determined that the city facing potential liability under Title VII could choose not to certify the test if it believed an equally good test could be made with a different impact on affected groups.

The Supreme Court, as it is its prerogative in looking at a challenge, established a new consideration or a different standard for the city to apply. And that is was there substantial evidence that they would be held liable under the law. That was a new consideration.

Our panel didn't look at that issue that way because it wasn't argued to us in the case before us and because the case before us was based on existing precedent. So it's a different test.

SESSIONS: Judge, there was a -- apparently, unease within your panel. I -- I was really disappointed. And I think a lot of people have been that the opinion was so short. It was pro curiam. It did not discuss the serious legal issues that the case raised. And I believe that's legitimate criticism of what you did.

But it appears, according to Stuart Taylor, a respected legal writer for the National Journal -- that Stuart Taylor concluded that -- that it appears that Judge Cabranes was concerned about the outcome of the case, was not aware of it because it was a pro curiam unpublished opinion. But it began to raise the question of whether a rehearing should be granted.

You say you're bound by the superior authority. But the fact is when the re -- the question of rehearing that 2nd Circuit authority that you say covered the case, some say it didn't cover so clearly -- but that was up for debate. And the circuit voted, and you voted not to reconsider the prior case. You voted to stay with the decision of the circuit.

And, in fact, your vote was the key vote. Had you voted with Judge Cabranes, himself of -- of -- of Puerto Rican ancestry -- had you voted with him, you -- you -- you could have changed that case.

So in truth you weren't bound by that case had you seen it in a different way. You must have agreed with it and agreed with the opinion and stayed with it until it was reversed by the court.

Let me just mention this. In 1997...

LEAHY: Is that a question or a...

SESSIONS: Well, that was a response to some of what you said, Mr. Chairman, because you misrepresented factually what the -- the posture of the case.

LEAHY: Well, I obviously...

SESSIONS: In 1997...

LEAHY: I obviously will disagree with that. But that -- we'll have a chance to vote on this issue.

SESSIONS: In 1997 when you came before the Senate and I was a new senator, I asked you this. In a suit challenging a government racial preference in quota or set-aside, will you follow the Supreme Court decision in Adarand and subject racial preferences to the strictest judicial scrutiny," close quote. In other words, I asked you would you follow the Supreme Court's binding decision in Adarand v. Pena.

In Adarand, the Supreme Court held that all governmental discrimination, including Affirmative Action programs, that discriminated by race of an applicant must face strict scrutiny in the courts. In other words, this is not a light thing to do. When one race is favored over another, you must have a really good reason for it, or it's not acceptable.

After Adarand, the government agencies must prove there is a compelling state interest in support of any decision to treat people differently by race. This is what you answered: "In my view, the Adarand court correctly determined that the same level of scrutiny -- strict scrutiny applies for the purpose of evaluating the constitutionality of all government classifications, whether at the state or federal level, based on race," close quote. So that was your answer, and it deals with government being the city of New Haven.

You made a commitment to this committee to follow Adarand. In view of this commitment you gave me 12 years ago, why are the words "Adarand," "equal protection" and "strict scrutiny" are completely missing from any of your panel's discussion of this decision?

SOTOMAYOR: Because those cases were not what was at issue in this decision. And, in fact, those cases were not what decided the Supreme Court's decision. The Supreme Court parties were not arguing the level of scrutiny that would apply with respect to intentional discrimination.

The issue is a different one before our court and the Supreme Court, which is what's a city to do when there is proof that its test disparately impacts a particular group.

And the Supreme Court decided, not on a basis of strict scrutiny, that what it did here was wrong -- what the city did here was wrong, but on the basis that the city's choice was not based on a substantial basis in evidence to believe it would be held liable under the law. Those are two different standards, two different questions that a case would present.

SESSIONS: But Judge, it wasn't that simple. This case was recognized pretty soon as a big case, at least. I noticed what perhaps kicked off Judge Cabranes's concern was a lawyer saying it was the most important discrimination case that the circuit had seen in 20 years. They were shocked they got a -- basically one-paragraph decision per curiam unsigned back on that case.

Judge Cabranes apparently raised this issue within the circuit, asked for re-hearing. Your vote made the difference in not having a re-hearing in bank. And he said, quote, "Municipal employers could reject the results" -- in talking about the results of your test, the impact of your decision -- "Municipal employers could reject the results of an employment examination whenever those results failed to yield a desirable outcome, i.e., fail to satisfy a racial quota," close quote.

SESSIONS: So that was Judge Trabanas's (sic) analysis of the impact of your decision, and he thought it was very important. He wanted to review this case. He thought it deserved a full and complete analysis and opinion. He wanted the whole circuit to be involved in it. And to the extent that some prior precedent in the circuit was different, the circuit could have reversed that precedent had they chose to do so.

Don't you think -- tell us how it came to be that this important case was dealt with in such a cursory manner.

SOTOMAYOR: The panel decision was based on a 78-page district court opinion. The opinion referenced it. In its per curium, the court incorporated in differently, but it was referenced by the circuit. And it released on that very thoughtful, thorough opinion by the district court. And that opinion discussed Second Circuit precedent in its fullest -- to its fullest extent. Justice Cabranes had one view of the case. The panel had another. The majority of the vote -- it wasn't just my vote -- the majority of the court, not just my vote, denied the petition for rehearing.

The court left to the Supreme Court the question of how and employer should address what no one disputed was prima facia evidence that its test disparately impacted on a group. That was undisputed by everyone, but the case law did permit employees who had been disparately impacted to bring a suit.

The question was, for city, was it racially discriminating when it didn't accept those tests or was it attempting to comply with the law.

SESSIONS: Well, Judge, I think it's not fair to say that a majority -- I guess it's fair to say a majority voted against rehearing. But it was 6 to 6. Unusual that one of the judges had to challenge a panel decision, and your vote made the majority not to rehear it.

Do you -- and Ricci did deal with some important questions. Some of the questions that we have got to talk about as a nation, we've got to work our way through. I know there's concern on both sides of this issue, and we should do it carefully and correctly.

But do you think that Frank Ricci and the other firefighters whose claims you dismissed felt that their arguments and concerns were appropriately understood and acknowledged by such a short opinion from the court?

SOTOMAYOR: We were very sympathetic and expressed your sympathy to the firefighters who challenged the city's decision, Mr. Ricci and the others. We understood the efforts that they had made in taking the test. We said as much.

They did have before them a 78-page thorough opinion by the district court. They, obviously, disagreed with the law as it stood under Second Circuit precedent. That's why they were pursuing their claims and did pursue them further.

In the end, the body that had the discretion and power to decide how these tough issues should be decided, let alone the precedent that had been recognized by our circuit court and another -- at least, the Sixth Circuit -- but along what the court thought would be the right test or standard to apply.

And that's what the Supreme Court did. It answered that important question because it had the power to do that -- not the power but the ability to do that because it was faced with the arguments that suggested that. The panel was dealing with precedent and arguments that rely on our precedent.

SESSIONS: Thank you, Judge. And I appreciate this opportunity. And I -- I would just say, though, had the procurement opinion stood without a rehearing requested by one of the judges in the whole circuit and kicked off the discussion, it's very, very unlikely that we would have heard about this case or the Supreme Court would have taken it up.

Thank you, Mr. Chairman.

LEAHY: Thank you.

BLITZER: All right, so the first hour of questions have now ended. The chairman Patrick Leahy, the ranking Republican Jeff Sessions. They both had their chance, and they got into the heart of some of the more controversial aspects of Judge Sotomayor's record, including that New Haven's firefighter case, her comments about a wise Latina woman, the Second Amendment -- how far does the Second Amendment go in allowing folks to have guns.

Much more of our coverage coming up. Remember, at CNN.com, you can see all these hearings uninterrupted. We'll assess what we just heard with members of the best political team on television when we come back.

(COMMERCIAL BREAK)

BLITZER: The confirmation hearings are continuing. This is day two. Sonia Sotomayor slated to become an associate justice of the U.S. Supreme Court if confirmed by the United States Senate. That certainly looks likely.

This morning, she's already been grilled on some of the most sensitive issues that have come forward, including a case involving New Haven, Connecticut firefighters. Let's assess that case right now, the issues involved and how she defended her decision.

Jeff Toobin and John King are over at the magic wall. John?

JOHN KING, CNN CHIEF NATIONAL CORRESPONDENT: Wolf, let me tap into the case files. Here's one case that came up. We'll talk about this later, Maloney v. Cuomo. A gun control case.

But the case you mentioned just a moment ago is right here. It's Ricci v. DeStephano. And, Jeff Toobin, the issue, of course, white firefighters in New Haven, Connecticut. They challenged the city decision to throw out promotion exam the white firefighters passed. Others did not. So, it's basically a workplace discrimination suit.

And this is what became the big issue as you discuss this forward. Judge Sotomayor was with the three-judge panel. They upheld the lower court rejection of the white firefighters' lawsuit and sent this back to the city and said, "Come up with a new test." So, these guys were not promoted. The United States Supreme Court just recently reversed Sotomayor's ruling in a 5-4 decision, sending it back, saying she was wrong in this case.

Interesting. I want to discuss the topics. Number one was -- the question was, did her own background as a Latino woman influence her ruling in the case? That was one. Number two, it was a short ruling written by this court, and Jeff Sessions, the ranking Republican, who was essentially saying did you give short shrift (ph) to this. If you're going to make such a controversial decision, why didn't you at least lay out why?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Right. Well, see, what Senator Sessions was doing was, he was trying to tie the Ricci case to her comments in speeches, which suggested that her background, rather than the law, is what leads her to make her decisions. She, of course, rejected that characterization of her views, but the Ricci case was a case where she sided with the city, which said, "Look, we're worried about being sued by African-Americans firefighters who didn't do well on the test. So, because of that worry, we're going to cancel the whole thing."

The Supreme Court said that's not a legitimate reason to cancel the test. The white firefighters who were denied promotions, they won their case.

KING: Now, I want to come to you with another question, then I'll bring up the committee to look a little bit more closely at Senator Sessions. Her argument there was, the Supreme Court had every right. That is where you go to set the standard, and that's what happened when she was reversed. But when she was ruling at the appellate court level, she was following the appropriate precedent at the time. Legal argument, is she on strong footing there?

TOOBIN: I think she's on pretty strong footing that the law she applied was the law at the time. The four justices who agreed would her certainly felt she was right.

And, in Justice Kennedy's opinion in the Ricci case, he pretty much acknowledges that Supreme Court was establishing a new set of rules for these kind of cases. The Supreme Court can do that. But I think Judge Sotomayor has a pretty good argument that, "Well, the Supreme Court may have been right, they may have been wrong, but they have the right to make new law. I could only follow the law at the time."

KING: And Wolf, as we come back to you and the panel, I just want to show -- this is Jeff Sessions right here. He's the ranking Republican on the committee and voted on two previous Supreme Court nominations, both Bush nominees. Supporting Chief Justice Roberts and Justice Alito.

He's from the state of Alabama. And if you go through his record here, he opposed Sotomayor back in 1998 when she was up for the appellate court. And he was nominated himself to a federal district court by President Reagan in '85. And remember, his nomination was defeated in this very same Judiciary Committee. Obviously different membership.

And here's what is at issue so far. He had said he's concerned Sotomayor's policy preferences could influence her decision making and, Wolf, he is leading the charge for the Republicans today, questioning her, saying in her speeches and her rulings she has not been as impartial. "Infidelity to the law" is how she put it yesterday, and she is now saying -- her answers are much more politically motivated, not what she has done over the course of her record.

BLITZER: Very good point, John. The other sensitive issue that came up, her first effort to explain that controversial comment she made about being a wise Latina woman, and perhaps a wise Latina woman could make a better decision than a white man.

Gloria, you're very sensitive to this issue. Did she make her case? She said what she was trying to do, basically, was inspire young Latinos that they can reach for the stars.

GLORIA BORGER, CNN SENIOR POLITICAL ANALYST: Well, I think she clearly walked back her language, because her language was very clear and what she said today was she was talking about the obligation of judges to examine what they're feeling, and then put that aside as they judge a case and make sure that their personal feelings, their experiences, their gender does not affect their ruling.

But it's very clear in the statement she made in that Berkeley Law speech in 2001, she said, "but I accept there will be some influence based on my gender and my Latina heritage." Today she was saying, no, that the system is strengthened when judges judge themselves, understand what they're feeling, set it aside.

BLITZER: All right. We're going to get to Maria and Alex Castellanos. Candy Crowley. We'll continue our coverage. Much more of these hearings coming up. Remember, CNN.com. You can see the hearings uninterrupted, and we'll go back to the Q and A and the rest of this Day Two of the confirmation hearings right after this.

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BLITZER: Sonia Sotomayor is being questioned right now before the Senate Judiciary Committee. At stake: whether or not she will become an associate justice of the United States Supreme Court. It looks like she will, barring some major, major bombshell. The Democrats certainly have the vote. Sixty Democrats in the United States Senate.

But let's assess what we've just heard so far. Candy Crowley, as you watched these hearings unfold and the sensitive issues of that New Haven firefighter case, the white-Latina woman comments came up, the Second Amendment -- does that apply to guns only for the federal government as opposed to states and local communities. She's obviously well prepared. She knew these were going to be big issues.

CANDY CROWLEY, CNN SENIOR POLITICAL CORRESPONDENT: She certainly read the papers and listened to the newscasts since her nomination, that's for sure.

Listen, for those who aren't familiar with the ins and outs of the cases, this boils down to one thing. "I followed the law. That was case law. This said nothing about how I felt personally." And it was for every case, from the guns -- and when it came to her remarks that she made not on the bench, she redid those remarks and said, "I never meant to do it," as Gloria explained, "That's not what I meant. What I meant was we have to be aware of those things."

And she gets a lot of help from the Democrats who say, "Well, listen, those remarks are not reflected on the bench for her. So, that's what we need to look at." So, for the first 30 minutes, I heard her seven times say, "I follow the law" or some variation of that. I think by 9:00 tonight, we'll have heard it more.

BLITZER: We also heard, Alex Castellanos, our Republican strategist -- we also heard she loves the Second Amendment of the U.S. Constitution, which deals with the issue of guns.

ALEX CASTELLANOS, CNN CONTRIBUTOR: This is kind of breathtaking testimony here. Who is this Judge Sotomayor? She seems to be the opposite of everything she's ever said before. It's kind of like "Believe me now, don't believe my evil, evil twin Skippy Sotomayor, who said all those things. That was someone else."...

BLITZER: Hold on one second because I want to go right back to the hearing. She's answering her question on the very sensitive issue of Bush v. Gore back in 2000.

SOTOMAYOR: ... greatness of our American system which is whether you agree or disagree with a Supreme Court decision, that all of the branches become involved in the conversation of how to improve things. And as an indicated, both Congress, who devoted a very significant amount of money to electoral reform in certain of its legislation -- and states have looked to address what happened there. SEN. HERB KOHL (D) WISCONSIN: Judge, in a 5-4 decision in 2005, the Supreme Court ruled that Kelo v. City of New London was a -- that it was constitutional for local government to seize private property for private economic development. Many people, including myself...

BLITZER: All right. We're going to figure out exactly what she said on that issue of Bush versus Gore, that supreme Court decision that allowed George W. Bush to become president of the United States after all the ballots were counted in Florida.

But we'll assess what happened on that issue, how she discussed it right now. We'll pick that up. But I want to go back to Alex Castellanos. You were pointing out, Alex, you've seen a different side of Sonia Sotomayor today.

CASTELLANOS: Well, it seems to be that her defense is, "What I meant was the opposite of everything I ever said. When I said I disagreed with Justice O'Connor, it actually meant I agreed with her. When I said a wise Latina could reach a better decision, it actually meant we couldn't. It meant that when judges make the law from the bench, when I said that, well, I actually meant the opposite of that."

On point after point, her defense is that "I actually meant the opposite of what I said." Democrats may have the votes to get this judge approved here, but there's the question, I think, she's going to be faced with next. Which judge should we believe? The one who has an interest now in gaining our approval or the one who spoke at unguarded moments before this hearing?

BLITZER: What did you think, Maria Echaveste? You worked in the Clinton White House, and you teach at UC Berkeley School of Law right now. You're, obviously, very sympathetic to judge Sonia Sotomayor.

MARIA ECHAVESTE, SENIOR FELLOW, CENTER FOR AMERICAN PROGRESS: Of course, but that's because she is well qualified to be a justice on the Supreme Court. I think...

BLITZER: But this notion that what Alex just said...

ECHAVESTE: ... there's two things

BLITZER: ... There are two sides to her, what she actually said as opposed to how she's explaining it today.

ECHAVESTE: I thin the first is, we should take a line from Justice Alito, who said, "The kind of judge I'm going to be is the kind of judge I have been." That's exactly what she is doing. That her statements and speeches and trying to inspire young people to go into law, to actually try to become judges are -- speak for themselves.

I think the thing about the wise Latina woman and all of that is trying to put experiences, the fact that you come to the bench with everything that you are -- something that Justice Alito has said, that he's talked about his own. How his own family suffered discrimination because of their ethnic background. "And I do take that into account." He said that in 2006.

Justice Thomas said, "I believe I bring an understanding and ability to stand in the shoes of other people." He said that in 1991. The fact is, no one comes to the bench sort of as a blank slate. And the thing I most dislike about Senator Sessions' comments is that he makes it sound like the law is mechanically applied. The reality is, we have controversy. There is 5-4. There's 7-5. There are real differences as to what the law -- how it could be interpreted.

CASTELLANOS: But the real controversy here is not between one judge and another judge or one justice and another, it's between Sotomayor and Sotomayor. She is saying one thing at one point and saying the very opposite today in these hearings.

(CROSSTALK)

TOOBIN: ... an accusation that is leveled at every Supreme Court nominee. That they're having a "confirmation conversion" -- that any controversial opinion that they've held in the past, they try to whitewash. I think they all do do it to a certain extent, and since all nine of them are on the court, I don't think it's much of a disqualification. But that charge of a "confirmation conversion" is always something we see.

BLITZER: OK, guys. Hold your thoughts for a moment because we'll continue our coverage. Remember CNN.com. These hearings uninterrupted are being streamed. CNN.com. We'll get back to the hearings. They're only just beginning, really. Much more of our coverage right after this.

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BLITZER: Hearings are continuing for Sonia Sotomayor. Right now, we'll get right back to them, but I want to check some other important news that is unfolding.

CNN's Tony Harris is standing by with a news update. The world isn't stopping, Tony, just because these historic hearings are under way.

TONY HARRIS, CNN ANCHOR: You said it, Wolf. Good to see you. Let's get to some of the other stories making news today.