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Sotomayor Confirmation Hearing
Aired July 14, 2009 - 13:59 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
SEN. PATRICK LEAHY (D), CHAIRMAN, SENATE JUDICIARY COMMITTEE: Judge, I once on a television interview said, if I could do what -- anything I wanted to do in life, I said, "Well, if I ever have to work for a living, I want to be a photographer," because I do at which point, two minutes after the interview, the phone rings. My mom was still alive. She called. She said, "Don't you ever say that, they'll think you don't work."
(LAUGHTER)
LEAHY: Actually, I don't. I just recognize senators here. You're doing all the work and I appreciate the way you're doing it.
I turn next to -- to Senator Grassley. Then, after Senator Grassley, to Senator Feingold.
Senator Grassley?
GRASSLEY: Welcome once again, Judge. I hope you had a good break. And I appreciate very much the opportunity to ask you some questions.
I'd like to start off my round with some questions about your understanding of individual property rights and how they're protected by the Constitution.
And let me say, as I observe property rights around the world, there's a big difference between developed nations and developing nations. And respect for private property has a great deal to do with the advancement of societies.
So I believe all Americans care about this right. They want to protect their homes and anything they own from unlawful taking by government. But this is also a right that is important for agricultural interests. As you know, besides being a senator, I come from an agricultural state in Iowa and am a farmer, as well.
I'm sure that ordinary Americans, besides the economic interests that might be involved, are all very well concerned about where you stand on property rights. So some of these issues have been discussed, but I want to go into a little more depth on Kelo as an example.
Could you explain what your understanding is of the state of the Fifth Amendment's taking cause jurisprudence after the Supreme Court decision in Kelo? Senator Brownback said this aptly when Chief Justice Roberts was before this committee: Quote, "Isn't it now the case that it is much easier for one man's home to become another man's castle?"
Your general understanding of the takings clause?
SOTOMAYOR: Good afternoon, Senator Grassley. And it's wonderful to see you again.
GRASSLEY: Thank you.
SOTOMAYOR: I share your view of the importance of property rights under the Constitution. As you know, I was a commercial litigator that represented national and international companies, and it wasn't even the case that it was a difference between developed and underdeveloped countries.
Many of my clients who were from developed countries chose to -- in part, to invest in the United States because of the respect that our Constitution pays to property rights in its various positions, in its various amendments.
With respect to the Kelo question, the issue in Kelo, as I understand it, is whether or not a state who had determined that there was a public purpose to the takings under the -- the takings clause of the Constitution that requires the payment of just compensation when something is -- is condemned for use by the government, whether the takings clause permitted the state, once it's made a proper determination of public purpose and use, according to the law, whether the state could then have a private developer do that public act, in essence. Could they contract with a private developer to effect the public purpose?
And so the holding as I understood it in Kelo was a question addressed to that issue.
SOTOMAYOR: With respect to the importance of property rights and the process that the state must use, I just point out to you that in -- in another case involving that issue that came before me in a particular series of cases that I had involving a village in New York, that I -- I ruled in favor of the property rights -- the property owner's rights to challenge the process that the state had followed in his case and to hold that the state had not given him adequate notice of their intent to use the property -- well, not adequate notice not to use the property, but to be more precise, that they hadn't given him an adequate opportunity to express his objection to the public taking in that case.
GRASSLEY: Could I zero in on two words in the Kelo case? The Constitution uses the word use, public use. Where as the Kelo case talked about taking private property for public purpose. In your opinion, is public use and public purpose the same thing?
SOTOMAYOR: Well, as I understood the Supreme Court's decision in Kelo, it was looking at the court's precedence over time and determining that its precedence had suggested that the two informed each other, that public purpose in terms of developing an area that would have a public improvement and use that the two would inform each other. GRASSLEY: Do you believe that the Supreme Court overstepped their constitutional authorities when they went beyond the words of the Constitution, in other words, to the word purpose, and thus expanded the ability of government to take an individual's private property? Because I think everybody believes that Kelo was an expansion of previous precedent there.
SOTOMAYOR: I know that there are many litigants who have expressed that view. And, in fact, there has been many state legislators that have passed state legislation not permitting state governments to take in the situation that the Supreme Court approved of in Kelo. The question of whether the Supreme Court overstepped the Constitution, as I've indicated, the court, at least my understanding of the majority's opinion, believed and explained why it thought not.
I have to accept because it is precedent that as precedent. And so, I can't comment further than to say that I understand the questions and I understand what state legislatures have done and would have to await another situation, or the court would, to apply the holding in that case.
GRASSLEY: Then I think that answers my next question. But it was going to be to ask you whether you think that Kelo improperly undermines the constitutionally-protected private property rights. I presume you're saying that you believe that's what the court said and it doesn't undermine property rights.
SOTOMAYOR: I can only talk about what the -- the courts said in the context of that particular case and to explain that it is the court's holding. And so, it's entitled to stare decisis effect and deference.
GRASSLEY: I see.
SOTOMAYOR: But the extent of that has to await the next step, the next cases.
GRASSLEY: OK. Well, then maybe it would be fair for me to ask you what is your understanding of the constitutional limitations then on government entity -- any government entity taking land for public purpose?
SOTOMAYOR: Well, that was the subject of much discussion in the Kelo case among the justices. And with certain justices in the dissent hypothesizing that the limits were difficult to see, the majority taking the position that there were limits.
As I've indicated to you, opining on a hypothetical is very, very difficult for a judge to do.
GRASSLEY: OK.
SOTOMAYOR: And as a potential justice on the Supreme Court but, more importantly, as a Second Circuit judge still sitting, I can't engage in a question that involves hypotheses.
GRASSLEY: Right. Let me ask you a couple obvious then. Does the Constitution allow for takings without any compensation?
SOTOMAYOR: Well, the Constitution provides when the government takes it has to pay compensation. As you know, the question of what constitutes an actual taking is a very complex one because there is a difference between taking a home and regulation that may or may not constitute a taking. It's -- so I'm not at all trying to not answer your question.
GRASSLEY: OK. Well, then let me ask you another question. Maybe you can't answer it. Would you strike down a taking that provided no compensation at all?
SOTOMAYOR: Well, as I explained, if the taking violates the Constitution, I would be required to strike it down.
GRASSLEY: Let me move on to the Didden case v. the Village of Port Chester. It raised serious concerns about whether you understand the protection provided by the Constitution for individual property rights. In this case, Mr. Didden alleged that his local village government violated his Fifth Amendment rights when it took his property to build a national chain drugstore.
At the meeting with the government agency, another developer, Mr. Didden was told that he could give the developer $800,000 or a 50 percent interest in his pharmacy project. And if Mr. Didden did not accept either condition, the government would simply take his property.
Two days after Mr. Didden refused to comply with these demands, the government began proceeding to take his land. The district court denied Mr. Didden his day in court, and your panel affirmed that decision in a five-paragraph opinion. Why did you deny Mr. Didden his day in court? How can these facts, in essence, allegations of extortion at least not warrant the opportunity to call witnesses to see if Mr. Didden was telling an accurate story?
SOTOMAYOR: The Didden case presented a narrow issue that the court below...
PROTESTER: (OFF-MIKE)
LEAHY: Officer, remove that man immediately.
PROTESTER: (OFF-MIKE)
LEAHY: We will stand in order...
PROTESTER: (OFF-MIKE)
LEAHY: We will stand in order...
PROTESTER: (OFF-MIKE)
LEAHY: Officers, you will remove that man.
PROTESTER: (OFF-MIKE) LEAHY: You know...
(LAUGHTER)
And they did. And they did.
LEAHY: Again, both Senator Session is and I have said, as all previous chairs and ranking members of this have said, this is a hearing of the United States Senate. The judge deserves respect. Senators in asking questions deserve respect.
I will order the removal of anyone who disrupts it, whether they're supportive of the nominee or opposed to the nominee, whether they're supportive of a position I take or opposed to it. We will have the respect that should be accorded to both the nominee and to the United States Senate.
SESSIONS: Thank you, Mr. Chairman. I think you've handled this well throughout, and I support you 100 percent.
LEAHY: Thank you.
Senator -- Senator Grassley, we did stop the clock, so it did not take from your time.
GRASSLEY: Thank you. People always say I have the ability to turn people on.
(LAUGHTER)
Maybe you could start over again with your -- with your sentence, please.
(UNKNOWN): Where were we?
SOTOMAYOR: I hope I remember where we were.
GRASSLEY: OK.
SOTOMAYOR: Senator, the right of property owners to have their day in court is a very important one, but there is a corollary to the right to have your day in court, which is that you have to bring it to court in a timely manner...
GRASSLEY: OK.
SOTOMAYOR: ... because people who are relying on your assertion of rights should know when you're going to make them. And so there's a doctrine called the statute of limitations that says if a party knows or has reason to know of their injury, then that party has to come in to court and raise their arguments within that statute that sets the limits of the action.
GRASSLEY: I...
SOTOMAYOR: In the -- oh, I'm sorry. GRASSLEY: No, no, no...
SOTOMAYOR: No, no, no.
GRASSLEY: ... you, please. I interrupted you. I should not have interrupted you.
SOTOMAYOR: No, I...
GRASSLEY: Please, go ahead.
SOTOMAYOR: In the Didden case, the question was whether Mr. Didden knew that the state was intending to take his property and for what it, the state, claimed was a public use and that it had plans to have a private developer take his -- they take his property and the private developer develop the land.
So there was a full hearing by the village on this question of whether there was a public use of the land. Mr. Didden didn't claim in the action before the courts that he didn't have notice of that hearing. He did not raise a challenge in that hearing to the public taking. And he didn't raise a challenge to the state's intent to have a private developer develop the land.
Now, in that case, the developer was developing not just Mr. Didden's property. It was one piece of property in a larger development project. And that larger development project had been based on the village's conclusions from its very lengthy hearings in accordance with New York law that the area was blighted and that the area needed economic development.
SOTOMAYOR: So to that issue became the issue before the court in the sense of, had Mr. Didden, knowing that he could be injured by the state's finding of public use and the state's decision to let a private developer develop this land -- did he bring his lawsuit in a timely manner. And the court below and our court ruled on that basis that he hadn't because he had reason to know about the injury that could -- that could come to him.
GRASSLEY: Well, since Mr. Didden's claim was based on conduct of the developer, how could he ever have filed a successful claim under the standard that you just mentioned?
SOTOMAYOR: Mr. Didden alleged in his complaint that the private developer had extorted him. Extortion, under the law, is defined as an unlawful demand for money. On this one piece of property, within a larger development that the private developer was actively engaged in doing what he had contracted with the state to do, to revive the economic base by making investments in it, the private developer knew that Mr. Didden had his claims. The private developer had his agreement with state.
And so he was doing -- at least this was the private developer's argument -- what he was entitled to do which is to say we disagree. I'm claiming that I have a right under contract. You're claiming that you have a right under the takings clause. Let's settle this. I'm going to lose X amount of money. So you pay me back for me not to do what I'm entitled to do under the law.
That's, however, was -- those were the claims of the parties in the action. In the end, the decision of the court was if you believe that the takings of your property were not proper under the public use -- under the takings clause, and you knew that the state had entered a contract with this private developer, then you had knowledge that you could be injured and you should have come to court earlier.
GRASSLEY: Why was the situation in Didden not the kind of prohibited pretextual (ph) taking articulated in Kelo? How was this not some sort of form of extortion? And if there wasn't a pretext in the Didden case where the developer says give me the money personally or we'll take your land, then what is the pretext?
SOTOMAYOR: Well, as I -- as I have described the case...
GRASSLEY: Yes, I understand.
SOTOMAYOR: ... the question comes up in the context of what did Mr. Didden know, did he have enough to know he could be injured, was there no public use to the -- to which the property would apply, and what rights did the private developer have with the state.
And so the extortion question came up in a legal context surrounding the relative rights of the parties. And so as I said, extortion is a term -- a legal term which is someone demanding money with no lawful claim to it. I'm simplifying, because there's different definitions of extortion that apply to different situations. But in the context of this case, that's the simplest description of the case, I believe.
WOLF BLITZER, CNN ANCHOR: All right. We're going to take a quick break and resume our coverage in just a moment. They're heavy into a discussion of property rights. This is an important issue in an agricultural state like Iowa, where there's always fear from farmers the government simply is going to take over some of their land without adequate compensation, so this is a big issue for a lot of folks out there. Charles Grassley, the Republican Senator from Iowa, continuing his questioning.
Remember, CNN.com is where you can see all of this hearing streamed live, uninterrupted.
Our coverage will continue right after this.
(COMMERCIAL BREAK)
BLITZER: Republican Senator Charles Grassley of Iowa and the Supreme Court justice nominee Sonia Sotomayor, they're engaged right now in a very serious and complicated discussion on property rights. Almost all of the questions that Chuck Grassley has now asked involves this very, very important issue that may seem dry to some viewers out there, but very significant, especially to a lot of conservatives out there. Alex Castellanos, why is this so important to Republicans and conservatives, the whole issue of the federal government and property rights?
ALEX CASTELLANOS, CNN CONTRIBUTOR: Because Republicans, I think, conservatives see property rights as the basis of a free economy. That's how you measure your wealth.
And if the government -- it's a question about government power. If the government can come in and take your property, not for public use, as the Constitution requires, but take it for private use, then that's too much power for the hands of government.
In one of these cases, the property was taken for a CVS, to build a CVS, I think. And is that a legitimate public use? These are the questions that Republicans are concerned about. And Judge Sotomayor seems to have leaned not really providing a very strong defense of property rights.
BLITZER: Because the issue has been, Maria Echaveste, that, in that particular case, if they take away some land and compensate the owner of that land in order not necessarily for the public good, but to build some sort of retail operation that would generate more tax revenue for the local community, is that in the public good?
MARIA ECHAVESTE, SENIOR FELLOW, CENTER FOR AMERICAN PROGRESS: Well, I think there is a real question as to a difference as to whether that is in the public view, and it seems like the Supreme Court at least laid the foundation for a locality to say yes. If the whole idea is to bring and raise taxes, and provide revenues for the locality, I would say that I'm not fully familiar with takings doctrine, but I think that it is an important issue. But she handled the question properly.
BLITZER: Let's have Jeff Toobin and John King walk over to the Magic Wall over there and show us something. This is called the Didden case that involved some very, very sensitive issues.
John, walk us through, together with Jeff, what happened and why this is so important.
JOHN KING, CNN ANCHOR: I'll pull up the case for you here in our case file, Wolf, and we'll ask Jeff to go through it. The topic, eminent domain, meaning...
JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Takings of private property for public use.
KING: And that's exactly the issue as we go through the file.
The local property owners, they challenged the government's power, the Village of Port Chester, to take private property, their property, designate it as a redevelopment area. Now, essentially, the Port Chester community said we're going to take this land and we're going to redevelop it. And Judge Sotomayor was part of a panel -- it's an unsigned opinion -- siding with the city government, saying they did have that right.
The outcome, of course, being the panel ruled in favor of the city government, in part citing a controversial 2005 Supreme Court case. The appeal to the Supreme Court denied, so Judge Sotomayor and her colleagues upheld.
TOOBIN: Well, but as Judge Sotomayor was saying in her exchange with Senator Grassley, they decided this case because the property owners waited too long to bring their case. The case was thrown out on so-called statute of limitations grounds.
So, what she was trying to say is, we didn't really address the issue of whether this was legitimate for the Village of Port Chester to take this property. We were dealing with the procedural issue of statute of limitations. And they were having a bit of back and forth about whether this case was really about takings or it was really just a statute of limitations case.
KING: And that is a key point, because as Alex was noting, Senator Grassley's point reflects conservative concerns that governments take from private land owners, and that the role of the court should be, in his view, in a conservative view, to stop that.
TOOBIN: Absolutely. And, you know, the justices usually know when they have a hot-button issues coming up. But there was a case three years ago, Kelo against New London. That's the cause of all this.
This case really snuck up on the justices. They didn't realize what they were stepping into when they allowed the city of New Haven to take a private -- Suzette Kelo's land and give it to a private developer for an urban renewal project. And they thought, hey, if the city wants it, it's a public use.
Well, they have met a firestorm of criticism. There was a 5-4 opinion. Justice O'Connor wrote a dissenting opinion -- she was still on the court at the time -- and she warned her colleagues, you don't know what you are getting into. And as usual, Justice O'Connor had very astute political instincts. That case has remained highly controversial, and it's what Senator Grassley is asking about right now.
KING: Justice O'Connor from the West, of course, Arizona, where these issues are paramount in many cases.
And Wolf, as we go back, it is a somewhat arcane piece of the law, texture of the law, as both Maria and Jeff were talking about. But important that Judge Sotomayor here satisfy Senator Grassley, because he is one of the Republicans on the committee the White House believes could vote for this Democratic nominee.
BLITZER: Yes. They would love to get him on board, if possible. We'll see what happens.
But these property rights cases are politically fraught with a lot of danger. Gloria Borger, you've studied this.
GLORIA BORGER, CNN SR. POLITICAL ANALYST: I've looked at it. The interesting thing to me, as you watch her answer the senator's questions about takings, is that she wouldn't take the bait. He kept pushing her on whether the Supreme Court had, in fact, overstepped in the Kelo case that Jeff Toobin was just talking about. And given the fact that she is about to go sit on the Supreme Court, potentially, if she gets confirmed, she wouldn't say whether the Supreme Court had overstepped.
And that is something we're going to hear time and time and time again in these hearings. Just when you want her to tell us just how she feels about something that she has not directly ruled on, she has had a couple of cases...
CASTELLANOS: If this were a football game, this would be three yards and a cloud of dust. She just keeps running the ball right up the middle and taking no risks.
BLITZER: Candy Crowley, she has been told repeatedly in these six weeks during which she has been preparing for these questions, say as little on the substance as you possibly can.
CROWLEY: She is the perfect nominee so far. As you sit up there, you punt. You don't say anything. And you keep returning to her refrain, which is, well, I followed case law or this was a very little, narrow ruling. And I think -- and we saw when she was talking about Bush v. Gore, the Supreme Court, that decided the election, just a huge punt. I just can't imagine a nominee sitting up there criticizing a Supreme Court decision.
TOOBIN: If I could just add, she's a perfect nominee for her own fortunes. She's a perfect nominee for the Obama administration. But is it perfect for the American people that she's going to go on there for 30 years having not answered questions about what her judicial philosophy is? Now, Roberts did the same thing.
(CROSSTALK)
TOOBIN: Now, Roberts did the same thing. Alito did the same thing. But I think this process is just not helpful.
BLITZER: But you know why they are all refusing to do that, because of Bork. Look at what happened to him, because he spelled out all of his positions, and you know what happened.
TOOBIN: That's right, but that was, I think, the process working as it should, because the Senate had a chance to make a judgment on the merits. What are they afraid of? What was Roberts afraid of? What's Alito -- what was Alito afraid of.
BORGER: Not getting confirmed.
(LAUGHTER) TOOBIN: Well, but, you know, I mean, that's not my concern. My concern is for the good of the country. I mean, I'm sorry. I know it's a naive outlook.
CASTELLANOS: Here's another question that I might ask.
BORGER: Judge Bork has said the biggest mistake he made in his hearings when he looks back at them was that he actually told the truth and answered the questions.
CASTELLANOS: Another question I might ask, though, is she the perfect nominee for Democratic senators running for re-election in swing states coming up? She may not be.
We were talking about Blanche Lincoln, for example, a moderate conservative Democrat in Arkansas, a swing state. If I were Blanche Lincoln, I'd be thinking, gee, what ads are Republicans going to run against me? Oh, let's see, "Blanche Lincoln, has she forgotten about us? She spent more and put us deeper into the debt than any senator ever. But that wasn't enough. Now, she supports a Democratic nominee who opposes the death penalty, who thinks felons ought to have the right to vote, who supports taking away private property, who took jobs from firemen who earned them, because she supported reverse discrimination."
Those are the kind of ads Democrats should be thinking about.
CROWLEY: But if it were a presidential race, I would tend to agree with you that it would have a lot of resonance. But Senate races are really about so many things. You know, did you deliver at home? How big of an incumbent are you? I mean, you know, it maybe -- I mean, Blanche Lincoln is in trouble to begin with. So, you know, I think that Supreme Court votes just don't figure there.
BLITZER: All right, guys. Hold your thoughts for a moment because we're going to continue our coverage. Russ Feingold, the senator from Wisconsin, getting ready to ask some questions as well. Our coverage will continue right after this.
(COMMERCIAL BREAK)
BLITZER: Judge Sonia Sotomayor is now answering a question from Democratic Senator Russ Feingold of Wisconsin on whether or not there were any laws enacted after 9/11 that historians down the road might live to regret.
SEN. RUSS FEINGOLD (D), WISCONSIN: I can understand some hesitance on this. But the truth is that courts are already dealing with these very issues.
The Supreme Court itself has now struck down a number of post- 9/11 policies. And you yourself sat on a panel that struck down one aspect of the National Security Letter statutes that were expanded by the Patriot Act.
So, I'd like to hear your thoughts a bit on whether you see any common themes or important lessons in the Court's decisions in Rasul, Hamdi, Hamdan and Boumediene. What is your general understanding of that line of cases?
SOTOMAYOR: That the Court is doing its task as judges. It's looking, in each of those cases, at what the actions are of either the military and what Congress has done or not done, and applied constitutional review to those actions.
FEINGOLD: And is it fair to say, given that line of cases, that we can say that, at least as regards the Supreme Court, it believes mistakes were made with regard to the post-9/11 policies? Because in each of those cases, there was an overturning of a decision, either by the Congress or the executive.
SOTOMAYOR: I smiled only because that's not the way that judges look at that issue. We don't decide whether mistakes were made. We look at whether action was consistent with constitutional limitations or statutory limitations.
FEINGOLD: And in each of those cases, there was a problem with either a constitutional violation or a problem with a congressional action. Right?
SOTOMAYOR: Yes.
FEINGOLD: That's fine.
As I'm sure you're aware, many of us on the committee discussed at length with the prior Supreme Court nominees the framework for evaluating the scope of executive power in the national security context. You already discussed this at some length with Senator Feinstein Justice Jackson's test in the Youngstown case.
And I and others on the committee are deeply concerned about the very broad assertion of executive power that's been made in recent years, an interpretation that has been used to authorize the violation of clear statutory prohibitions, from the Foreign Intelligence Surveillance Act and the anti-torture statute.
You discussed with Senator Feinstein the third category, the lowest ebb category, in the Youngstown framework. And that's where, as Justice Jackson said, the president's power is at its lowest ebb because Congress has, as you well explained it, specifically prohibited some action.
I take the point of careful scholars who argue that, hypothetically speaking, Congress could conceivably pass a law that is plainly unconstitutional. For example, if Congress passed a law that said that somebody other than the president would be the commander in chief of a particular armed conflict and not subject to presidential direction, presumably, that would be out of bounds.
But setting aside such abstract hypotheticals, as far as I'm aware -- and I'm pretty sure this is accurate -- the Supreme Court has never relied on the Youngstown framework to conclude that the president may violate a clear statutory prohibition. In fact, in Youngstown itself, the court rejected President Truman's plan to seize the steel mills.
Now, is that your understanding of the Supreme Court precedent in this area?
SOTOMAYOR: I haven't had cases, or a sufficient number of cases, in this area. To say that I can remember every Supreme Court decision on a question related to this topic -- as you note, in the Youngstown case, the Court held that the president had not acted within his powers in seizing the steel mills and the particular situation existing before him at the time.
But the question or the framework doesn't change, which is, each situation would have to be looked at individually, because you can't determine ahead of time with hypotheticals what a potential constitutional conclusion will be. As I may have said to an earlier question, academic discussion is just that. It's presenting the extremes of every issue and attempting to debate about -- on that extreme of the legal question, how should the judge rule.
SEN. RUSSELL FEINGOLD (D), WISCONSIN: I'll concede that point, Judge. I just -- given your tremendous knowledge of the law and your preparation, I am pretty sure you would have run into any example of where this would have happened. I just want to note that I am unaware of -- and if anybody is aware of an example of where something was justified under the president's power in the lowest ebb, I would love to know about it. But I -- I think -- that's not a question of a hypothetical, that is a factual question about what the history of the case law is.
SOTOMAYOR: I -- I can only accept your assumption. As I said, I -- I have not had sufficient cases to have looked at what I know in light of that particular question that you're posing.
FEINGOLD: In August 2002, the Office of Legal Counsel at the Department of Defense issued two memoranda considering the legal limits on interrogation of terrorism detainees. And one of these contained a detailed legal analysis of the criminal law prohibiting torture.
It concluded, among other things, that enforcement of the anti- torture statute would be an unconstitutional infringement on the president's commander-in-chief authority.
But, Judge, that memo did not once cite to the Youngstown case or to Justice Jackson's opinion in Youngstown. And we just learned on Friday in a new inspector general report that a November 2001 OLC memo providing the legal basis for the so-called terrorist surveillance program also did not cite Youngstown.
Now, I don't think you would have to be familiar with those memos to answer my question. Does it strike you as odd that a complex legal analysis of the anti-torture statute or the FISA act that considers whether the president could violate those statutes would not even mention the Youngstown case?
SOTOMAYOR: I have never been an adviser to a president. That's not a function I have served, so I don't want to comment on what was done or not done by those advisers in that case. And it's likely that some question -- and I know some are pending before the court in one existing case, so I can't comment.
All I can comment -- on whether that's surprising or not, I can only tell you that I would be surprised if a court didn't consider the Youngstown framework in a decision involving this question, because it is -- that case's framework is how these issues are generally approached.
FEINGOLD: Good. I appreciate that answer.
Let me go to a topic that Senator Leahy and Senator Hatch discussed with you at some length, the Second Amendment. And I have long believed that the Second Amendment grants citizens an individual right to own firearms.
And, frankly, I was elated when the court ruled in Heller last year basically what I think had been a mistake all along, to not recognize it as an individual right.
FEINGOLD: The question of whether the Second Amendment rights are incorporated in the 14th Amendment's guarantee of due process of law and, therefore, applicable to the states, as you pointed out, was not decided in Heller. And a Supreme Court decision in 1886 specifically held that the Second Amendment applies only to the federal government.
So, in my view, it is unremarkable that as a circuit court judge in the Maloney case you would follow applicable Supreme Court precedent that directly controlled the case rather than apply your own guess of where the court may be headed after Heller. In other words, I think that's -- would be an unfair criticism of a case that I think you needed to rule that way given the state of the law.
But let me move on that from because many of my constituents would like to know more about how you would make such a decision as a member of the highest courts. So I want to follow up on that.
First of all, am I right that if you're confirmed and the court grants cert in the Maloney case, you would have to recuse yourself from its consideration?
SOTOMAYOR: Yes, sir. My own judgment is that it would seem odd, indeed, if any justice would sit in review of a decision that they authored. I would think that the judicial code of ethics that govern recusals would suggest and command that that would be inappropriate.
FEINGOLD: Fair enough. What about if one of the other pending appeals comes to the Court such as the Seventh Circuit decision in NRA v. Chicago which took the same position as your position in Maloney, would you have to recuse yourself from that one as well?
SOTOMAYOR: There are many cases in which a justice, I understand, has decided cases as a circuit court judge that are not the subject of review that raise issues that the Supreme Court looks at later. What I would do in this situation, I would look at the practices of the justices to determine whether or not I -- that would counsel to recuse myself.
I would just note that many legal issues, once they come before the Court, present a different series of questions than one addresses at the circuit court.
FEINGOLD: Well, let's assume you were able...
WOLF BLITZER: All right, we are going to break away briefly from this hearing because we want to assess what's going on to a certain degree. But I first want to get quick commercial break. Our coverage will continue. Russ Feingold continuing his questioning.
Jon Kyl, the Republican senator from Arizona on deck. He will be up next. Much more of our coverage coming up right after this.
(COMMERCIAL BREAK)
BLITZER: Welcome back to our continuing coverage of these historic hearings in Washington, D.C. The Supreme Court nominee, Sonia Sotomayor -- she's answering questions. Russ Feingold, the Democratic senator from Wisconsin, has been asking her about national security issues, specifically in the aftermath of 9/11, whether any laws that were enacted simply went too war.
And some context, Russ Feingold being the only United States senator immediately after 9/11 to vote against the Patriot Act, which has become very controversial in the years that have followed.
John King, she really didn't want to answer these questions, even though she got a little personal and pointed out she happens to live right near Ground Zero in lower Manhattan.
KING: She talked about not being able to drive and get around her neighborhood after 9/11. She talked about a huge tragedy. But she said historians will decide down the road and that we are too close, essentially, to 9/11 to make those judgments now.
A very careful, cautious answer. And to your point about Russ Feingold -- he is among the most liberal on these issues -- to the left on these issues. Voted against the Patriot Act, is a sharp critic of the Iraq war, is a very sharp critic of what he believes are abuses in overstepping in executive power by the Bush administration in a whole host of areas. Whether it is Gitmo, whether it's the warrantless wiretapping program in the United States.
And he was trying to get her to express herself. And she was very careful. Because, Wolf, as you know, and all of us here know, there are a handful of cases already in the pipeline. Some have been decided by the court. There are some awaiting the next court. And there are a whole host of others lower in the courts that over the next five or 10 years, this is going to be a very giant issue.
BLITZER: Now, hold on. I want to play that little clip of what Sonia Sotomayor said just a few moments ago. (BEGIN VIDEO CLIP)
SOTOMAYOR: I was in New York. My home is very close to the World Trade Center. I spent days not being able to drive a car into my neighborhood, because my neighborhood was used as this staging area for emergency trucks.
(END VIDEO CLIP)
BLITZER: All right. She got personal and gave a little bit of personal anecdote of what happened in the immediate aftermath of 9/11.
But on the substance of these issues, she wasn't giving us any real hint. And it is significant because there are going to be a whole bunch of cases involving national security, CIA interrogation, notification of Congress on sensitive, classified, covert operations presumably that could work their way up to the United States Supreme Court.
CROWLEY: Right, along with other cases about property rights and any number of things that she hasn't wanted to talk about, saying, look, this could come in to the Supreme Court. And makes you wonder how they can fill three days with this conversation.
But, you know, nonetheless, this is something that, you know, as we discussed before, is the way certainly any White House now wants it, having learned from history, that the more you're out there, the more of a punching bag and a target you become. And she is not willing to play on these questions.
BORGER: She did go out on a limb though and pay homage to the Constitution. She did.
BLITZER: That's usually a safe bet.
BORGER: It's a giveaway.
TOOBIN: She even liked the amendment.
BORGER: She did. And she said it has protected us, it has inspired our survival. This is, of course, after she was asked a question about 9/11, and called it a timeless document to which, of course, she will adhere.
CASTELLANOS: The obvious danger, of course, is getting dragged to the left by Republicans who are questioning you, trying to get you to say something in opportune. But the less obvious is getting dragged to the left by a liberal like Senator Feingold, who said, don't you agree that perhaps the Patriot Act went a little too far? That was the subtext of what he was asking. And I think she was at least well-briefed enough and prepared enough not to let that happen.
CROWLEY: And wouldn't bite on the word wrong, which I thought was really interesting. Came up a couple of times. Don't you think this was a mistake. Well, judges don't do mistakes in what's right and wrong (INAUDIBLE) to the law. BLITZER: Maria, today "The New York Times" in its editorial, just like Jeff Toobin yesterday said, you know what, they may want to play it safe. But the American public deserve to know where these nominees stand on these sensitive issues. And they were pretty blunt "The New York Times" editorial page in saying, you know what, don't worry your about being confirmed or not confirmed. Worry about the American people first.
ECHAVESTE: Well, I think as an academic matter I might agree with you, that it would be better to know what a justice -- what their judicial philosophy is.
But, I think that it's not an academic matter. And the fact is after some bruising confirmation battles, it's the better chorus to be clearer about what you've done in the past and reserve judgment on the things that might come before you and we have some sense of what she is like based on her record and that's what the senators will vote on.
BLITZER: But, remember, this is a lifetime appointment. She is going to be, assuming she's healthy, on the Supreme Court making decisions that will effect millions and millions of Americans for the next 30, maybe even longer, 30 years, long after President Obama is finished at the White House. She presumably is going to be on the United States Supreme Court.
So, doesn't she have an obligation to come clean and tell us what she really thinks?
ECHAVESTE: I might have counseled something different if I were in a position to counsel. For the reasons we've discussed. But I think that in this kind of situation, the White House has instructed and prepared her carefully to make sure that this confirmation hearing is no drama. And we can quickly go back to health care and other things.
CASTELLANOS: But the record, her record, is not enough here. Because her record in getting to this point was always somewhat constrained by the possibility that one day she'd get to the Supreme Court. When she gets to the Supreme Court, there'll be nothing to stop her. That's why, really getting to what she thinks, as Jeffrey says, what she believes in, is really important.
CROWLEY: Look, someday when we reach paradise, perhaps the Republicans and the Democrats will stop beating each other to a pulp over things like this. But the fact of the matter is, it's how the system works and she's not going to do it.
(CROSSTALKE)
BORGER: (INAUDIBLE).
OK? They thought Justice Suitor was going to be one kind of a justice, so did the president at the time. And he turned out to be another.
So, you know, you can get surprises. You can get justices who change when they are on the bench. You can't get --
(CROSSTALK)
TOOBIN: Senator Schumer, who we'll be hearing from shortly, gave a very interesting speech to the American Constitution Society a couple years ago. It's a liberal group and he said, I've had it with these confirmation hearings. I don't believe anything they say. All I'm going to look at is the record. And now the shoe's on the other foot.
(CROSSTALK)
BLITZER: None of them want to be a Bork, the aftermath of Robert Bork. That became a verb, as we all remember.
We'll take a quick break. Our coverage will continue after this.
(COMMERCIAL BREAK)
BLITZER: Welcome back to our continuing coverage of these historic hearings in Washington, D.C. The Supreme Court nominee, Sonia Sotomayor -- she's answering questions. Russ Feingold, the Democratic senator from Wisconsin, has been asking her about national security issues, specifically in the aftermath of 9/11, whether any laws that were enacted simply went too war.
And some context, Russ Feingold being the only United States senator immediately after 9/11 to vote against the Patriot Act, which has become very controversial in the years that have followed.
John King, she really didn't want to answer these questions, even though she got a little personal and pointed out she happens to live right near Ground Zero in lower Manhattan.
KING: She talked about not being able to drive and get around her neighborhood after 9/11. She talked about a huge tragedy. But she said historians will decide down the road and that we are too close, essentially, to 9/11 to make those judgments now.
A very careful, cautious answer. And to your point about Russ Feingold -- he is among the most liberal on these issues -- to the left on these issues. Voted against the Patriot Act, is a sharp critic of the Iraq war, is a very sharp critic of what he believes are abuses in overstepping in executive power by the Bush administration in a whole host of areas. Whether it is Gitmo, whether it's the warrantless wiretapping program in the United States.
And he was trying to get her to express herself. And she was very careful. Because, Wolf, as you know, and all of us here know, there are a handful of cases already in the pipeline. Some have been decided by the court. There are some awaiting the next court. And there are a whole host of others lower in the courts that over the next five or 10 years, this is going to be a very giant issue.
BLITZER: Now, hold on. I want to play that little clip of what Sonia Sotomayor said just a few moments ago. (BEGIN VIDEO CLIP)
SOTOMAYOR: I was in New York. My home is very close to the World Trade Center. I spent days not being able to drive a car into my neighborhood, because my neighborhood was used as this staging area for emergency trucks.
(END VIDEO CLIP)
BLITZER: All right. She got personal and gave a little bit of personal anecdote of what happened in the immediate aftermath of 9/11.
But on the substance of these issues, she wasn't giving us any real hint. And it is significant because there are going to be a whole bunch of cases involving national security, CIA interrogation, notification of Congress on sensitive, classified, covert operations presumably that could work their way up to the United States Supreme Court.
CROWLEY: Right, along with other cases about property rights and any number of things that she hasn't wanted to talk about, saying, look, this could come in to the Supreme Court. And makes you wonder how they can fill three days with this conversation.
But, you know, nonetheless, this is something that, you know, as we discussed before, is the way certainly any White House now wants it, having learned from history, that the more you're out there, the more of a punching bag and a target you become. And she is not willing to play on these questions.
BORGER: She did go out on a limb though and pay homage to the Constitution. She did.
BLITZER: That's usually a safe bet.
BORGER: It's a giveaway.
TOOBIN: She even liked the amendment.
BORGER: She did. And she said it has protected us, it has inspired our survival. This is, of course, after she was asked a question about 9/11, and called it a timeless document to which, of course, she will adhere.
CASTELLANOS: The obvious danger, of course, is getting dragged to the left by Republicans who are questioning you, trying to get you to say something in opportune. But the less obvious is getting dragged to the left by a liberal like Senator Feingold, who said, don't you agree that perhaps the Patriot Act went a little too far? That was the subtext of what he was asking. And I think she was at least well-briefed enough and prepared enough not to let that happen.
CROWLEY: And wouldn't bite on the word wrong, which I thought was really interesting. Came up a couple of times. Don't you think this was a mistake. Well, judges don't do mistakes in what's right and wrong (INAUDIBLE) to the law. BLITZER: Maria, today "The New York Times" in its editorial, just like Jeff Toobin yesterday said, you know what, they may want to play it safe. But the American public deserve to know where these nominees stand on these sensitive issues. And they were pretty blunt "The New York Times" editorial page in saying, you know what, don't worry your about being confirmed or not confirmed. Worry about the American people first.
ECHAVESTE: Well, I think as an academic matter I might agree with you, that it would be better to know what a justice -- what their judicial philosophy is.
But, I think that it's not an academic matter. And the fact is after some bruising confirmation battles, it's the better chorus to be clearer about what you've done in the past and reserve judgment on the things that might come before you and we have some sense of what she is like based on her record and that's what the senators will vote on.
BLITZER: But, remember, this is a lifetime appointment. She is going to be, assuming she's healthy, on the Supreme Court making decisions that will effect millions and millions of Americans for the next 30, maybe even longer, 30 years, long after President Obama is finished at the White House. She presumably is going to be on the United States Supreme Court.
So, doesn't she have an obligation to come clean and tell us what she really thinks?
ECHAVESTE: I might have counseled something different if I were in a position to counsel. For the reasons we've discussed. But I think that in this kind of situation, the White House has instructed and prepared her carefully to make sure that this confirmation hearing is no drama. And we can quickly go back to health care and other things.
CASTELLANOS: But the record, her record, is not enough here. Because her record in getting to this point was always somewhat constrained by the possibility that one day she'd get to the Supreme Court. When she gets to the Supreme Court, there'll be nothing to stop her. That's why, really getting to what she thinks, as Jeffrey says, what she believes in, is really important.
CROWLEY: Look, someday when we reach paradise, perhaps the Republicans and the Democrats will stop beating each other to a pulp over things like this. But the fact of the matter is, it's how the system works and she's not going to do it.
(CROSSTALKE)
BORGER: (INAUDIBLE).
OK? They thought Justice Suitor was going to be one kind of a justice, so did the president at the time. And he turned out to be another.
So, you know, you can get surprises. You can get justices who change when they are on the bench. You can't get --
(CROSSTALK)
TOOBIN: Senator Schumer, who we'll be hearing from shortly, gave a very interesting speech to the American Constitution Society a couple years ago. It's a liberal group and he said, I've had it with these confirmation hearings. I don't believe anything they say. All I'm going to look at is the record. And now the shoe's on the other foot.
(CROSSTALK)
BLITZER: None of them want to be a Bork, the aftermath of Robert Bork. That became a verb, as we all remember.
We'll take a quick break. Our coverage will continue after this.
(COMMERCIAL BREAK)
