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Sonia Sotomayor Faces Day Two of Senate Confirmations Hearings on Supreme Court Nomination

Aired July 14, 2009 - 15:00   ET

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

WOLF BLITZER, CNN ANCHOR: All right, we're going to continue covering the hearings.

Russ Feingold, the Democratic senator from Wisconsin, just asked Sonia Sotomayor about the internment of Japanese-American citizens during World War II.

(JOINED IN PROGRESS)

SEN. RUSS FEINGOLD (D), WISCONSIN: ... Now, some of the great justices in the history of our country were involved in that decision. How does a judge resist those kind of fears?

JUDGE SONIA SOTOMAYOR, SUPREME COURT NOMINEE: One hopes by having the wisdom of a Harlan in Plessy, by having the wisdom to understand always, no matter what the situation, that our Constitution has held us in good stead for over 200 years, and that our survival depends on upholding it.

FEINGOLD: Thank you, Judge.

SEN. PATRICK LEAHY (D-VT), JUDICIARY COMMITTEE CHAIRMAN: Thank you very much, Senator Feingold.

What I was going to do is go to Senator Kyl, Senator Schumer, and then we will take a break.

Senator Kyl.

SEN. JON KYL (R-AZ), MINORITY WHIP: Thank you, Mr. Chairman.

Judge, could I return briefly to a series of questions that Senator Feingold asked at the very beginning relating to the Maloney decision relating to the Second Amendment?

SOTOMAYOR: Sure.

(CROSSTALK)

SOTOMAYOR: Good afternoon, by the way.

KYL: I'm sorry?

SOTOMAYOR: Good afternoon, by the way.

KYL: Yes, good afternoon. You had indicated, of course, if that case were to become before the court, under the recusal statute, you would recuse yourself from participating in the decision.

SOTOMAYOR: In that case, yes.

KYL: And you are aware that -- or maybe you are not, but there are two other decisions both dealing with the same issue of incorporation, one in the 9th Circuit, one in the 7th Circuit.

The 7th Circuit decided the case similarly to your circuit. The 9th Circuit has decided it differently, although that case in on re- hearing. If the court should take all three -- let's assume the 9th Circuit stays with its decision, so you do have the conflict among the circuits, and the court were to take all three decisions at the same time,

I take it the recusal issue would be the same; you would recuse yourself in that situation?

SOTOMAYOR: I hadn't actually been responding to that question. And I think you are right for posing it.

I clearly understand that recusing myself from Maloney would be appropriate. The impact of a joint hearing by the court would suggest that I would have to apply the same principle.

But, as I indicated, issues of recusal are left to the discretion of justices because their participation in cases is so important. It is something that I would discuss with my colleagues and follow their practices with respect to a question like this.

KYL: Sure. I appreciate that. And I agree with your reading of it. The law, 28 USC, Section 455, provides among other things -- and I quote -- "Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned" -- end of quote.

And that of course raises the judge's desire to consult with others and ensure that impartiality is not questioned by participating in a decision. I would think -- and I would want your responses -- I would think that there would be no difference if the Maloney case is decided on its own or if it is decided as one of two or three other cases all considered by the court at the same time.

SOTOMAYOR: As I said, that's an issue that's different than the question that was posed earlier.

KYL: Would you not be willing to make an unequivocal commitment on that at this time?

SOTOMAYOR: It is impossible to say. I will recuse myself on any case involving Maloney. How the other cert is granted and whether joint argument is presented or not, I would have to await to see what happened. KYL: Let me ask you this. Suppose that the other two cases are considered by the court, your circuit is not involved, or that the court takes either the Seventh or Ninth Circuit and decides the question of incorporation of the Second Amendment.

I gather that, in subsequent decisions, you would consider yourself bound by that precedent, or that you would consider that to be the decision of the court on the incorporation question?

SOTOMAYOR: Absolutely. The decision of the court in Heller is -- its holding has recognized an individual right to bear arms as applied to the federal government.

(CROSSTALK)

KYL: If, as a result -- that was the matter before your circuit. And if, as a result of the fact that the court decided one of the other or both of the other two circuit cases and resolved that issue, so that the same matter would have been before the court, would it not also make sense for you to indicate to this committee now that, should that same matter come before the court, and you are on the court, that you would necessarily recuse yourself from its consideration?

SOTOMAYOR: I'm -- didn't quite follow the start of your question, Senator Kyl. I want to answer precisely, but I'm not quite sure...

(CROSSTALK)

SOTOMAYOR: Sure. You agreed with me that if the court considered either the Seventh or Ninth Circuit or both decisions and decided the issue of incorporation of the Second Amendment to make it applicable to the states, you would consider that binding precedent of the court. That of course was the issue in Maloney.

As a result, since it's the same matter that you resolved in Maloney, wouldn't you have to, in order to comply with the statute, recuse yourself if either or both or all three of those cases came to the court?

SOTOMAYOR: Senator, as I indicated, clearly, the statue would reach Maloney.

How I would respond to the court taking certiorari in what case and whether it held -- took certificate certiorari in one or all three is a question that I would have to await to see what the court decides to do and what issues it addresses in its grant of certiorari.

There is also the point that whatever comes before the court will be on the basis of a particular state statute, which might involve other questions. It is hard to speak about recusal in the abstract, because there's so many different questions that one has to look at.

KYL: And I do appreciate that. And I appreciate that you should not commit yourself to a particular decision in a case. If the issue is the same, however, it is simply the question of incorporation. That is a very specific question of law. It doesn't depend upon the facts. It didn't matter that in your case you were dealing with a very dangerous arm, but not a firearm, for example. You still considered the question of incorporation.

Well, let me just try to help you along here. Both Justice Roberts and Justice Alito made firm commitments to this committee. Let me tell you what Justice Roberts said.

He said that he would recuse himself -- and I'm quoting now -- "from matters in which he participated while a judge on the court of appeals matters."

And since you did acknowledge that the incorporation decision was the issue in your decision -- in your second circuit case, and the question that I asked was whether if that is the issue from the Ninth and Seventh Circuits, you would consider yourself bound by that, it would seem to me that you should be willing to make the same kind of commitment that Justice Roberts and Justice Alito did.

SOTOMAYOR: I didn't understand their commitment to be broader than what I have just said, which is that they would certainly recuse themselves from any matter.

I understood it to mean any case that they had been involved in as a circuit judge. If their practice was to recuse themselves more broadly, then obviously I would take counsel from what they did.

But I believe, if my memory is serving me correctly, and it may not be, but I think so, that Justice Alito, as a Supreme Court justice, has heard issues that were similar to ones that he considered as a circuit court judge.

So, as I have indicated, I will take counsel from whatever the practices of the justices are with the broader question of what...

KYL: I appreciate that.

Issues which are similar is different, though, from an issue, which is the same. And I would just suggest that there would be an appearance of impropriety, if you have already decided the issue of incorporation one way, that's the same issue that comes before the court and then you, in effect, review your own decision.

That, to me, would be a matter of inappropriate -- and perhaps you would recuse yourself. I understand your answer.

Let me ask you about what the president said, and I talked about in my opening statement, whether you agree with him. He used two different analogies. He talked once about the 25 miles, the first 25 miles of a 26-mile marathon. And then he also said, in 95 percent of the cases, the law will give you the answer. In the last 5 percent, legal process will not lead you to the rule of decision. The critical ingredient in those cases is supplied by what is in the judge's heart. Do you agree with him that the law only takes you the first 25 miles of the marathon, and that that last mile has to be decided by what's in the judge's heart?

SOTOMAYOR: No, sir.

That's -- I don't -- wouldn't approach the issue of judging in the way the president does. He has to explain what he meant by judging. I can only explain what I think judges should do, which is, judges can't rely on what's in their heart. They don't determine the law. Congress makes the laws.

The job of a judge is to apply the law. And, so, it's not the heart that compels conclusions in cases. It is the law. The judge applies the law to the facts before that judge.

(CROSSTALK)

KYL: Appreciate that.

Has it been your experience that every case, no matter how tenuous it's been and every lawyer, no matter how good their quality of advocacy, that in every case, every lawyer has had a legal argument of some quality it make? Some precedent that he's cited? It might not be the Supreme Court. It might not be the court of appeals. It might be a trial court somewhere. It might not even be a court precedent. It may be a law review article or something.

But have you ever been in a situation where a lawyer said I don't have any legal argument to me, Judge, please go with your heart on this or your gut?

SOTOMAYOR: Well, I have actually had lawyers say something very similar to that.

(LAUGHTER)

I have had lawyers where questions have been raised about the legal basis of their argument. I thought one lawyer who put up his hands and said, but it's just not right.

(LAUGHTER)

But it's just not right is not what judges consider. What judges consider is what the law. says.

KYL: You've always been able to find a legal basis for every decision that you've rendered as a judge?

SOTOMAYOR: Well, to the extent that every legal decision has -- it's what I do in approaching legal questions is, I look at the law that's being cited. I look at how precedent informs it. I try to determine what those principles are of precedent to apply to the facts in the case before me and then do that. And so one -- that is a process. You use...

KYL: Right. And -- and all I'm asking -- this is not a trick question.

SOTOMAYOR: No, I wasn't...

KYL: I can't imagine that the answer would be otherwise than, yes, you've always found some legal basis for ruling one way or the other, some precedent, some reading of a statute, the Constitution or whatever it might be. You haven't ever had to throw up your arms and say, "I can't find any legal basis for this opinion, so I'm going to base it on some other factor"?

SOTOMAYOR: It's -- when you say -- use the words "some legal basis," it suggests that a judge is coming to the process by saying, "I think the result should be here, and so I'm going to use something to get there."

KYL: No, I'm not trying to infer that any of your decisions have been incorrect or that you've used an inappropriate basis. I'm simply confirming what you first said in response to my question about the president, that, in every case, the judge is able to find a basis in law for deciding the case.

Sometimes there aren't cases directly on point. That's true. Sometimes it may not be a case from your circuit. Sometimes it may be somewhat tenuous and you may have to rely upon authority, like scholarly opinions and law reviews or whatever.

But my question is really very simple to you: Have you always been able to have a legal basis for the decisions that you have rendered and not have to rely upon some extra-legal concept, such as empathy or some other concept other than a legal interpretation or precedent?

SOTOMAYOR: Exactly, sir. We apply law to facts. We don't apply feelings to facts.

KYL: Right. Now, thank you for that.

Let me go back to the beginning. I raised this issue about the president's interpretation, because he clearly is going to seek nominees to this court and other courts that he's comfortable with and that would imply who have some commonality with his view of the law in judging. It's a concept that I also disagree with.

But in this respect, it is -- the speeches that you have given and some of the writings that you've engaged in have raised questions, because they appear to fit into what the president has described as this group of cases in which the legal process or the law simply doesn't give you the answer.

And it's in that context that people have read these speeches and have concluded that you believe that gender and ethnicity are an appropriate way for judges to make decisions in cases. Now, that's -- that's my characterization.

KYL: I want to go back through the -- I have read your speeches, and I have read all of them several times. The one I happened to mark up here is the Seton Hall speech, but it was virtually identical to the one at Berkeley.

You said this morning that your -- the point of those speeches was to inspire young people. And I think there is some in your speeches that certainly is inspiring, and, in fact, it's more than that. I commend you on several of the things that you talked about, including your own background, as a way of inspiring young people, whether they're minority or not, and regardless of their gender. You said some very inspirational things to them.

And I take it that, therefore, in some sense, your speech was inspirational to them. But, in reading these speeches, it is inescapable that your purpose was to discuss a different issue, that it was to discuss -- in fact, let me put it in your words. You said, "I intend to talk to you about my--I--my Latina identity, where it came from, and the influence I perceive gender, race, and national original representation will have on the development of the law.

And then, after some preliminary and sometimes inspirational comments, you got back to the theme and said, "The focus of my speech tonight, however, is not about the struggle to get us where we are and where we need to go, but instead to discuss what it will mean to have more women and people of color on the bench."

You said, "No one can or should ignore asking and pondering what it will mean, or not mean, in the development of the law." You talked to -- you cited some people who had a different point of view than yours, and then you came back to it and said, "Because I accept the proposition that, as Professor Resnik explains, to judge is an exercise of power, and because as Professor Martha Minow of Harvard Law School explains, 'There is no objective stance, but only a series of perspectives. No neutrality, no escape from choice in judging,'" you said. "I further accept that our experiences as women and people of color will in some way affect our decisions."

Now, you're deep into the argument here. You've agreed with Resnik that there is no objective stance, only a series of perspectives, no neutrality - which just as an aside, it seems to me, is relativism run amok.

But then you say, "What Professor Minow's quote means to me is not all women are people of color or all in some circumstances, or me in any particular case or circumstance, but enough women and people of color in enough cases will make a difference in the process of judging." You're talking here about different outcomes in cases, and you go on to substantiate your case by, first of all, citing a Minnesota case in which three women judges ruled differently than two male judges in a father's visitation case.

You cited two excellent studies, which tended to demonstrate differences between women and men in making decisions in cases. You said, "As recognized by legal scholars, whatever the cause is, not one woman or person of color in any one position, but as a group, we will have an effect on the development of law and on judging."

KYL: So, you develop the theme. You substantiated it with some evidence to substantiate your point of view. Up to that point, you had simply made the case, I think, that judging could certainly reach -- or judges could certainly reach different results and make a difference in judging depending upon their gender or ethnicity. You hadn't rendered a judgment about whether that -- they would be better judgments or not.

But then, you did. You quoted Justice O'Connor to say that, a wise old woman, wise old man, would reach the same decisions, and then you said: I'm also not sure I agree with that statement. And that's when you made the statement that's now relatively famous. "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion."

So here, you're reaching a judgment that, not only will it make a difference, but that it should make a difference. And you went on. And -- and this is the last thing that I will quote here. You said: In short, I -- well, I think this is important.

You note that some of the old white guys made some pretty good decisions eventually -- Oliver Wendell Holmes, Cardozo and others. And -- and you acknowledge that they made a big difference in discrimination cases. But it took a long time to understand. It takes time and effort, something not all people are willing to give, and so on.

And then you concluded this: "In short, I accept the proposition that difference will be made by the presence of women and people of color on the bench, and that my experiences will affect the facts that I choose to see." You said, "I don't know exactly what the difference will be in my judging. But I accept that there will be some based on gender and my Latina heritage."

You don't, as -- as you said in your response to Senator Sessions, you said that you weren't encouraging that. And you -- you talked about how we need to set that aside. But you didn't, in your speech, say that this is not good. We need to set this aside. Instead, you seem to be celebrating it. The clear inference is, it's a good thing that this is happening.

So, that's why some of us are concerned, first with the president's elucidation of his point of view here about judging, and then these speeches, several of them, including speeches that were included in Law Review articles that you edited, that all say the same thing. And it would certainly lead one to a conclusion that, A, you understand it will make a difference; and, B, not only are you not saying anything negative about that, but you seem to embrace the difference in -- in concluding that you'll make better decisions.

That's the basis of concern that a lot of people have. Please take the time you need to respond to my question.

SOTOMAYOR: Thank you. I have a record for 17 years. Decision after decision, decision after decision. It is very clear that I don't base my judgments on my personal experiences or -- or my feelings or my biases. All of my decisions show my respect for the rule of law, the fact that regardless about if I identify a feeling about a case, which was part of what that speech did talk about, there are situations where one has reactions to speeches -- to activities.

It's not surprising that, in some cases, the loss of a victim is very tragic. A judge feels with those situations in acknowledging that there is a hardship to someone doesn't mean that the law commands the result. I have any number of cases where I have acknowledged the particular difficulty to a party or disapproval of a party's actions and said, "No, but the law requires this."

SOTOMAYOR: So, my views, I think, are demonstrated by what I do as a judge. I'm grateful that you took notice that much of my speech, if not all of it, was intended to inspire. And my whole message to those students, and that's the very end of what I said to them, was: I hope I see you in the courtroom somebody. I don't know if I said it in that speech, but I often end my speeches with saying, "And I hope someday you're sitting on the bench with me."

And so, the intent of the speech, it's structure, was to inspire them to believe, as I do, as I think everyone does, that life experiences enrich the legal system.

I used the words "process of judging." That experience that you look for in choosing a judge, whether it's the ABA rule that says the judge has to be a lawyer for X number of years or it's the experience that your committee looks for in terms of what's the background of the judge, have they undertaken serious consideration of constitutional questions. All those experiences are valued because our system is enriched by a variety of experiences.

And I don't think that anybody quarrels with the fact that diversity on the bench is good for America. It's good for America because we are the land of opportunity. And to the extent that we're pursuing and showing that all groups can be lawyers and judges, that's just reflecting the values of our society.

KYL: And if I could just interrupt you right now, to me, that's the key. It's good because it shows these young people that you're talking to that, with a little hard work, it doesn't matter where you came from.

BLITZER: All right. They are having another serious discussion on the whole issue of empathy and whether her background should have any impact whatsoever in the decisions that she makes as a Supreme Court justice.

We're going to continue our coverage -- much more coming up right after this.

(COMMERCIAL BREAK)

BLITZER: The United States Supreme Court on a beautiful day here in Washington, D.C. Not very far away up on Capitol Hill, the confirmation hearings are continuing for Sonia Sotomayor as the next justice of the United States Supreme Court.

Tough questions over the past several moments from Jon Kyl, Republican senator of Arizona. Jeff Toobin, he is trying to pin her down on precisely where her ethnic background, her gender background, what role, if any, that should have on a United States Supreme Court justice.

JEFFREY TOOBIN, CNN SENIOR ANALYST: And -- and that's been a theme of the Republicans, because it has been their attempt to pull together some of the bill of particulars they have against her, the wise Latina speech that we have heard so much about, her decision in the Ricci case where she ruled in favor of the city which canceled -- and against the white firefighters.

I think they have really been talking in circles past each -- with each other, because Judge -- Judge Sotomayor has said repeatedly, she is very proud of her background, she thinks it informs her experience, but it does not dictate the outcome of any cases, although, in her speeches, the influence seems to have been greater than she is acknowledging --

BLITZER: In her speeches, but Alex Costeliano, in her actual decisions, there have been studies that have been done showing it doesn't seem have to have a great impact on her actual decisions. Many of them would go against some of these sensitive issues.

ALEX CASTELLANOS, CNN CONTRIBUTOR: Not necessarily, Wolf. Yes, there have been studies, but when you look at the individual cases, the Ricci case, the affirmative action, was that a case where her own personal biases may have influenced her? We don't know.

Certainly, there are two sides to that case that can be litigated. And on some of her decisions, frankly, she dismissed them with a couple of paragraphs, a summary order. So we don't' even know what her thinking was.

So I don't think it's fair to say without question her record proves that she was not influenced by what she said repeatedly, time and time again in all of these speeches, she actually believed, which was that her experiences really did determine her choices.

Are we not to believe anything this woman said for all these years?

BLITZER: Maria Echaveste, go ahead. I guess there is one record of what she said off the bench, another record of what she has actually done on the bench.

MARIA ECHAVESTE, FORMER WHITE HOUSE DEPUTY CHIEF OF STAFF: And that's precisely the point. The fact that we are focusing so much on Ricci is because there aren't other cases in favoring minorities can be shown.

And when you look at...

CASTELLANOS: She was a prosecutor.

(CROSSTALK) CASTELLANOS: Now, when she was a judge, there was a wage case. And in that wage case, she intervened, trying to force a settlement. And she gave the plaintiff...

(CROSSTALK)

CASTELLANOS: She gave the employee's side some information that she didn't give the employer. She put her finger on the scale, and even she says that was an ethical dilemma. Would she do that on the high court?

GLORIA BORGER, CNN SENIOR POLITICAL ANALYST: But there have been studies that show that she has rejected race based claims on a rate of eight to one. And these are legal studies of her opinion that show you she has not ruled that way.

(CROSSTALK)

ECHAVESTE: On the Ricci case...

CASTELLANOS: There are thousands of banks in America. The ones I don't rob, I don't get credit for. It's the ones I do.

ECHAVESTE: I'm not quite sure I understood that. But the one thing I also want to stress is on the Ricci case, Alex, with all due respect, keeps saying that she made this decision. There were three judges and then a full group that decided and said the decision was fine.

It wasn't until the Supreme Court reversed it...

CASTELLANOS: It is fair there is a debate when even her own mentor George Cabranes said you got this one wrong. It's at least fair acknowledge that there was a debate, and there's a question about why she ruled the way she did.

ECHAVESTE: No one's denying that there is a debate.

JOHN KING, ANCHOR, "STATE OF THE UNION": It is clear, Wolf, that this is the paradox of Sonia Sotomayor, that in her speeches, she has said some pretty provocative things.

There will be a difference if you have more minorities and more Latinas, more women on the bench. There should be a difference, she has said in some of her speeches.

She has also circled back in the biggest, most controversial speech to say the challenge for anyone, including myself, is to put these biases aside when you are making the rulings.

But I think we are all parents at the table. You all have that moment where you have to say to your children, do as I say, not as I do. What she seems to be saying in this hearing is, judge me not on what I have said but how I have ruled.

BORGER: She has also said and came out and said to Senator Kyl that diversity is a good thing to have on the bench, but not because it governs your eventual opinion, she said. She said you just have to understand the way you feel as a judge and set them aside.

But it is a good thing to have diversity on the bench because it gives everyone a sense that we live in the land of opportunity.

BLITZER: I want Candy to wrap this up before we take a break, but Candy, it doesn't look at least so far that a whole lot of minds are being changed.

CANDY CROWLEY, CNN SENIOR POLITICAL CORRESPONDENT: They are ships in the night. They are just passing each other. You know that old saying about the Senate is that everything that needs to be said has been said, but not everyone has said it.

So everybody is moving toward -- has their set of questions. But they are not going to get her to say, well, actually, I do think that we make better decisions. And they are not going to get her to explain how she would vote on a case that hasn't yet gone before the Supreme Court.

So at this point, these are senators whose job it is to advise and consent, have every right to take 12 weeks, if they want to, to do this, to go ahead and question her, and see how far they can push her.

It's just that, so far, she hasn't...

BORGER: At this point, it's more about them than it is about her.

BLITZER: They have just gone into recess again, a brief recess right now, the Senate Judiciary Committee. We'll take a little recess, a very, very short little recess, and continue our coverage.

There she is, Sonia Sotomayor. She is leaving the Judiciary Committee hearing room for just a few moments. She will be back, as well Senator Chuck Schumer of New York.

He's next in line to start asking some questions. He is arguably been the most supportive of all the United States senators given the fact that he represents her home state of New York.

Our coverage continues right after this.

(COMMERCIAL BREAK)

BLITZER: The confirmation hearings for Sonia Sotomayor to become an associate justice of the U.S. Supreme Court. They are in a brief recess right now. They are taking a break. They will resume the hearings momentarily.

Chuck Schumer, the Democratic senator from New York, he is next in line. He will start asking some questions of Sonia Sotomayor.

We'll take a little break from these hearings right now. I want to check in with Betty Nguyen. She is monitoring a lot of other news happening outside of these hearings. Betty, what's going on?

BETTY NGUYEN, CNN ANCHOR: Hi there, Wolf. I am at the CNN world headquarters in Atlanta. Rick Sanchez is on assignment today.

Let's get to the news. A total of seven people are now in custody for the guerilla style slaying of a couple in northwest Florida. Just a short time ago, the Escambia County sheriff hugged a daughter of one of the victims and announced the search for suspects is over.

He said the break in the case turned out to be the red van seen on surveillance video at the home where Bird and Melanie Billings lived with at least nine of their 16 children -- there's that red van right there -- most of those children adopted and many with special needs.

Masked men are seen in the video raiding the home where the couple's bodies were found. And authorities said today that a safe at the home was taken and robbery was the motive.

Well, contrary to published reports, there is no deal between Debbie Rowe and the family of Michael Jackson. That is according to a lawyer for Rowe, the birth mother for Jackson's two oldest children.

The "New York Post" says she has agreed not to seek custody rights in turn for $4 million. But Rowe's attorney, Eric George, says no agreement has been reached as of yet. He says the newspaper report is, quote, "completely false."

Disgraced financier Bernie Madoff has been transferred to a prison in North Carolina. Madoff had been at a medium security prison in Atlanta. He arrived this morning at Butner Federal Correctional Complex 45 miles northwest of Raleigh.

Now, it's not clear whether that will be his permanent stop or just a temporary stop until he's transferred elsewhere. The 71-year- old Madoff is serving a 150-year prison sentence for running a Ponzi scheme.

Listen to this. The White House is correcting an earlier report that Michelle Obama's father was buried in the Burr Oaks Cemetery outside of Chicago. The historic black cemetery has been in the news after reports that hundreds of bodies were dug up so the graves could be resold.

Well, earlier today, the first lady's communications director told CNN that the first lady's father was buried there. She now says that information was wrong.

Meanwhile, President Obama visited a community college in Warren, Michigan today to make a pitch for a new education funding program. The president wants to spend $12 billion over ten years to help community colleges train more Americans for jobs of the future. And doing that, he says, can help boost the U.S. economy.

About 6 million Americans currently attend two-year colleges, including some students that cannot pay to go to four-year schools. The Obama administration wants to expand community college enrollment by another 5 million by 2020.

Now back to Washington and more live coverage of the Sonia Sotomayor confirmation hearing with Wolf Blitzer.

BLITZER: Betty, thanks very much. And we'll be checking back with you throughout these coming hours.

This is day two of these confirmation hearings, the first day, though, of actual questioning of Sonia Sotomayor. Yesterday was all opening statements by the 19 senators, followed by her opening statement, which was rather brief.

But not today. They are going into substantive detail on a whole bunch of sensitive issues.

And we will take a quick break. We will resume our coverage right after this.

(COMMERCIAL BREAK)

BLITZER: From the United States Supreme Court, and we are continuing our coverage of these historic confirmation hearings. The Senate Judiciary Committee in a brief recess right, taking a little break from the testimony, the questions and answers of Sonia Sotomayor. They're going to resume momentarily.

Just a few moments ago, while they were still in session, we saw the chairman of the Judiciary Committee, Patrick Leahy, actually get up from his chair and do what is his real passion in life, that is, being a photographer.

Take a look at those pictures. He is in the corner over there. He's taking shots of Sonia Sotomayor and others. He had joked earlier that he always wanted to be a photographer. Having known Senator Leahy now for many years, I know he always walks around with a camera and likes to take a lot of pictures. And he is doing exactly that.

There are dozens of photographers inside. And at least, for this moment, our cameras has caught up with him being what he would like to be, a photographer. Obviously, he enjoys being a United States senator, but he says his real passion is being a photographer.

His mother berated him once for saying that, suggesting he wasn't really happy representing the people of Vermont.

On a much more serious note, though, Senator Jon Kyl, Republican of Arizona, grilled the Supreme Court Justice nominee Sonia Sotomayor for some time on this whole issue of whether she makes decisions from the bench based on what is in her heart rather than simply the law of the land. Listen to her response.

(BEGIN VIDEO CLIP)

SOTOMAYOR: The words I chose, taking the rhetorical flourish, was a bad idea. I do understand that there are some who have read this differently, and I understand why they might have concerns.

But I have repeated more than once, and I will repeat throughout, if you look at my history on the bench, you will know that I do not believe that any ethnic gender or race group has an advantage in sound judging.

(END VIDEO CLIP)

BLITZER: Clear statement from Sonia Sotomayor in the aftermath of all the uproar over that "wise Latina" comment that she made several times over the past several years.

Candy Crowley, she is really backing away from that as much as she possibly can.

CROWLEY: Absolutely. And she may have to back away from it some more, because we do have some Republicans that are going to talk.

This is clearly the one thing, as Jeffrey's pointed out, the one thing that they are trying to wrap around some of these court decisions, saying, well, you know, but what about this in Ricci? Doesn't that show that you voted your background, that you voted your ethnicity?

But the fact of the matter is -- voted. I'm sorry -- decided. The fact is that I'm not sure we -- what judges really know why they made their decisions? It's impossible to know what's in the heart of anybody and how judges judge.

So, again, we're spinning wheels here. I think she has decided what she is going to say. I think the Republicans have decided what they are going to ask. And here we go.

BLITZER: We have a clip, and I hope we can play this, involving the former president, George W. Bush. And I want Alex to respond to this. Let's make sure we have this cued up.

This was back in 1991, July 1, 1991, when then President George H. W. Bush, the first President Bush, nominated Clarence Thomas to be his Supreme Court nominee. And he was over in Kennebunkport at his summer home making the announcement. And he used the "e" word. Listen to this.

(BEGIN VIDEO CLIP)

GEORGE H.W. BUSH, FORMER U.S. PRESIDENT: I have followed this man's career for some time, and he has excelled in everything that he has attempted. He is a delightful and warm and intelligent person who has great empathy and a wonderful sense of humor.

He is also a fiercely independent thinker with an excellent legal mind who believes passionately in equal opportunity for all Americans.

(END VIDEO CLIP)

BLITZER: All right, Alex, great empathy. "Empathy," that's a big word we have heard a lot about. But the first President Bush used that word in making the case for Clarence Thomas.

CASTELLANOS: He's an empathetic guy, the former president. But I think the point the president was making there, all these attributes, your intelligence, experience, empathy, your ability to understand, all those are great.

But are they ultimately the precursor to the final step, which is rule of law? Are you going to make that the final determinant, which is what Judge Sotomayor is saying now.

Unfortunately for Judge Sotomayor, what she said before is the opposite of that. What she said before is that her -- her ethnicity and her gender will force her to choose some different facts --

BLITZER: Republicans, they are giving Sonia Sotomayor a real hard time on this whole issue of empathy even though President Obama is the one who raised the issue of empathy. But here we see the first President Bush, he's talking about empathy as well in making the case for Clarence Thomas.

BORGER: What I am also struck, it's sort of, if you are a minority and you are a conservative, you are independent-minded. If you are a minority and sort of to the left, somehow you are going to be biased in favor of minorities.

But there is a double standard here, and that's ultimately what's problematic about this. The fact is, would we be asking about her bias in the Ricci case if she were anything but a minority?

(CROSSTALK)

BLITZER: All right, I want you to hold those thoughts. We are going to take another quick break. When we come back, the hearings will resume, and our coverage will as well.

(COMMERCIAL BREAK)

BLITZER: The United States Supreme Court, that is the destination, she hopes -- Sonia Sotomayor, to become the next Supreme Court associate justice.

People are watching these hearings all over the country, but especially in Brooklyn. Members of the Puerto Rican Bar Association, they are watching very closely right now.

Obviously, very proud, at least many of them are, of a fellow Puerto Rican, Sonia Sotomayor, about potentially to become the first Hispanic on the United States Supreme Court -- only the third woman ever to become a member of the United States Supreme Court.

Senator Chuck Schumer of New York has started asking questions, let's listen in.