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Supreme Court Confirmation Hearing Continues for Sonia Sotomayor; Passenger Plane Crashes in Iran
Aired July 15, 2009 - 09:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
HEIDI COLLINS, CNN ANCHOR: Good morning, everybody.
I'm Heidi Collins. It is July 15th and we have a whole lot going on in the CNN NEWSROOM to tell you about this morning.
First off, a passenger plane crashes in Iran. All on board are believed dead. We'll have the very latest for you.
And live confirmation hearings for Judge Sonia Sotomayor. Our Brianna Keilar is live on Capitol Hill right in the middle of it all. She's going to tell us more about what we can expect to hear today.
And also look at this video. Two tornadoes ripped through Minnesota. We'll tell you where and where that severe weather bull's eye is headed today.
But we begin this morning with breaking news out of Iran. A Caspian Airlines jet went down about 90 miles northwest of the capital of Tehran. Iranian television there says 168 people are dead.
An area commander says the plane just disintegrated. There are no known survivors. The Russian-made plane was flying from Tehran to Armenia. It's unknown at this time what may have caused that crash.
It is day three today for Supreme Court nominee Judge Sonia Sotomayor. She'll face more direct questions from the Senate Judiciary Committee this morning. Yesterday she was quizzed on hot- button issues like Roe versus Wade and on her word choices.
CNN's congressional correspondent Brianna Keilar is joining us now live from Capitol Hill this morning.
Brianna, what are we going to see today?
BRIANNA KEILAR, CNN CONGRESSIONAL CORRESPONDENT: Well, Heidi, we're going to be seeing some more questions. And you'll probably recall on Monday, Senator Lindsey Graham, a Republican critic of Sonia Sotomayor, he says he may vote for her. He says unless she has a "melt," she will be confirmed. So far no meltdown as expected and she stayed really well within the lines with her deliberate answers to these senators' questions.
(BEGIN VIDEOTAPE)
KEILAR (voice-over): As Sonia Sotomayor took the hot seat prepared to answer Republican questions about her controversial off- the-bench remarks, Democrats launched a preemptive strike.
SEN. PATRICK LEAHY (D), JUDICIARY CMTE. CHAIRMAN: Here's your chance. You tell us, you tell us what's going on here, Judge.
KEILAR: Judiciary Chairman Patrick Leahy gave her a friendly audience as she explained her comment about a wise Latina reaching a better conclusion than a white male. She said it was a misunderstanding, that she was trying to inspire Hispanic students.
JUDGE SONIA SOTOMAYOR, SUPREME COURT NOMINEE: I want to state up front, unequivocally, and without doubt, I do not believe that any ethnic racial or gender group has an advantage in sound judging.
KEILAR: It wasn't enough for Republican critics who pressed Sotomayor on whether she could be impartial.
SEN. JEFF SESSIONS (R), RANKING MEMBER, JUDICIARY CMTE.: 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: As I've indicated, my record shows that at no point or time have I ever presented my personal views or sympathies to influence an outcome of a case.
KEILAR: Through hours and hours of testimony, Sotomayor scribbled notes and was careful in her answers. On Roe v. Wade, and a more recent Supreme Court decision upholding the ban on late-term abortions, Sotomayor said she respects those past decisions.
SOTOMAYOR: All precedents of the Supreme Court I consider settled law.
KEILAR: Asked about President Obama's past comments that judges must at times use their hearts in making decisions, a description Republicans decry as inappropriate, Sotomayor distanced herself from the man who nominated her.
SOTOMAYOR: I don't -- wouldn't approach the issue of judging in the way the president does. The job of a judge is to apply the law, and so it's not the heart that compels conclusions in cases, it's the law.
(END VIDEOTAPE)
KEILAR: Sonia Sotomayor will spend hours more on the hot seat today. Eight senators still have yet to ask her their first questions, Heidi.
COLLINS: Yes, and today, Brianna, is going to be really interesting, because we're going to be hearing from a brand-new senator. He's like number 100 out of 100. And he's been senator for about five minutes from Minnesota. Yes?
KEILAR: Yes. Al Franken, former star of "Saturday Night Live." We will be seeing him last because he is the most junior member of the Senate Judiciary Committee. So this is going to be really interesting, Heidi, because we've heard him speak, but we've really only seen him in scripted situations as a senator here in the last week and a half.
So this is going to be unscripted and a lot of eyes on him. But we're also going to keep an eye on Senator John Cornyn, Republican from Texas. On one hand he is a senator from a state that has a lot of Hispanic voters. And he's obviously going to be asking some tough questions of Sonia Sotomayor, as well he wears a different hat.
He's the head of the Republican Senatorial Campaign Committee.
COLLINS: Right.
KEILAR: And as you know, confirmation hearings are really opportunities for fund-raising and scoring political points. So he's wearing opposing hats here, Heidi.
COLLINS: All right. Understood. We'll be watching closely. Sure do appreciate it, live from Capitol Hill, our Brianna Keilar this morning.
A House Democratic plan to overhaul health care is now heading to three committees for debate. The Congressional Budget Office estimates the plan would cost $1 trillion and cover 97 percent of all Americans by the year 2015.
Here's more on the plan just released yesterday. It includes government-funded option that requires both individuals and employers to participate and it taxes the top 1.2 percent of income earners in order to cover those costs.
Now Republicans are opposed to the tax surcharges and the government option and vow they will fight bill.
A new audio message from al Qaeda's number two man. He is warning people in Pakistan to support militants or be punished by God.
CNN's Stan Grant is joining us now live from Islamabad with more on this message.
Stan, what do you know?
STAN GRANT, CNN CORRESPONDENT: Heidi, the message coming from Dr. Ayman al-Zawahiri, as you say, number two in al Qaeda to Osama bin Laden. This is a very consistent message. We've heard this before from both al Qaeda and also the Taliban to get people to support their fight against the U.S.
The timing here is interesting. It comes as the U.S. increases its troop presence across the border in Afghanistan and as the Pakistan military continues its offensive against Taliban militants in the northwest part of the country.
Zawahiri saying that the Pakistani politicians and military leaders are traitors to the Afghanistan and Pakistan people. He says that they are trying to stay on America's payroll, that in reference to the billions of dollars that America has poured into Pakistan to assist its fight against the insurgents.
It comes as people in Pakistan continue to move back to their houses after fleeing the fighting in recent months. The Pakistan government saying it has secured the northwest part of the country and it is safe to go back, but fighting is continuing. Just in the past 24 hours, 23 militants killed, another 14 arrested. Still very insecure in that part of the country. Heidi?
COLLINS: Absolutely. Well, Stan, does it seem to be any sort of support for this type of message in Pakistan?
GRANT: He's playing to what has been the past been quite a strong anti-American sentiment. Both here in Pakistan and in Afghanistan, there is concern about American involvement here, that America is too involved in trying to shape Pakistan's destiny.
But it also comes as people are tiring of the Taliban. There has been a shift in mood here, more support for the government, more support for the military. And I've just spent time up in the northwest frontier province where the fighting is going on speaking to people on the ground.
They are telling me the Taliban is finished. They do not support the Taliban, they the efforts to crush them. That's why I think we're seeing this message right now, Heidi.
COLLINS: All right. Very good, we sure do appreciate that. Reporting live for us this morning, Stan Grant out of Islamabad. Thanks, Stan.
Quickly now I want to head over to the Severe Weather Center. Jacqui Jeras is standing by. Boy, looking at some of that video that we saw out of Minnesota. These tornadoes there.
JACQUI JERAS, CNN METEOROLOGIST: Yes. Have you seen this yet? It's pretty incredible. This is in the Spicer area, it's about 80 miles west of Minneapolis and St. Paul.
(WEATHER REPORT)
JERAS: The temperatures -- yes, I know. They're still hot. Still hot out there.
COLLINS: I'm afraid to look.
JERAS: 104 in Dallas. But the cool down is coming, Heidi so this weekend we're going to be looking at 90s.
COLLINS: Oh, yes! That's so cool.
JERAS: Yay. I know.
COLLINS: All right.
JERAS: Well, it's better than, you know, triple digits anyway.
COLLINS: It is. It is. All right, Jacqui. Sure do appreciate it. Thank you.
It is a killing that has really affected one community and touched the nation as well. We'll have the very latest coming up on the investigation of a Florida couple's death. Plus, just in now. Reaction from the woman's adult daughter.
(COMMERCIAL BREAK)
COLLINS: Authorities now have seven suspects in custody in the killing of a Florida couple known for taking in special needs children. But the search for suspects is still not over.
CNN's Ed Lavandera joining us now live from Pensacola, Florida with the very latest on this.
And something else, too, Ed, this morning, just this morning, we are hearing from family members now and how they've been affected by all of this.
ED LAVANDERA, CNN CORRESPONDENT: Right. The woman who is now essentially the matriarch, as she has called herself, of this family, the oldest daughter of the Billings answered a few questions from reporters early this morning. She said that a trust has been set up for the children, the adopted children, that the Billings couple had been taking care of, and that they are concerned for the children's safety at this point.
That's why they're being kept in a private location. But they assure everybody that family members will continue taking care of these children, doing the best they can to make sure that those children remain OK, that they are asking a lot of questions about what has happened and where their mother and father are at this point.
But right now they say the important thing is to try to get these children through them. And they're also planning the funerals which will be -- which will start today. But the oldest daughter of the Billings children saying it's important for her to channel her mother at this point.
(BEGIN VIDEO CLIP)
ASHLEY MARKHAM, MELANIE BILLINGS' DAUGHTER: I feel like my mother's working through me. She -- everything that I do I can feel her there with me and if I have to be a matriarch, then that's what I'm prepared to do. Whatever I need to do to keep our family together and keep these children happy and in their every day lives, I'm prepared to do it.
(END VIDEO CLIP)
LAVANDERA: Now, Heidi, moving on to the investigation aspect of this story. At this point authorities have now, as we reported, arrested seven people in connection but authorities here also say that their work isn't done yet. They say there's an eighth person that they're looking for. And that arrest could happen some time today.
We're not exactly sure at this point. But it's still not quite done. They have talked extensively about how they think the primary motive for these killings was robbery but they've still left that window open that there still might be something more behind all of this. So there's still a lot of questions that remain unanswered at this point.
COLLINS: All right. Understood. Sure do imagine people are really going to want to know the outcome of all of this. We appreciate it.
Reporting live for us from Pensacola, Florida this morning, Ed Lavandera.
Well, they are beginning to fuel up the space shuttle Endeavour at this hour. NASA is hoping the weather cooperates for today's planned launch. Weather and a hydrogen leak forced five launch delays since last month.
Endeavour is carrying the last part of a large laboratory for the International Space Station. Liftoff is scheduled for 6:03 p.m. Eastern. And if it happens, we will bring it to you live right here on CNN.
Check this out. A shock for swimmers in Long Island. Here it is. It is a 26-foot basking shark. Scientists think it beached itself because it was sick.
Basking sharks are common off the northeast coast. If you've never heard of them before, they are the second largest fish in the ocean just behind the whale shark. This one weighed about 5,000 pounds. No real reason to be afraid of the giant fish. It only eats plankton and other small sea creatures.
Sonia Sotomayor back for more today. She's already explained her "wise Latina" comment. We are hearing from some other Latinas who have plenty to say about her choice of words.
(COMMERCIAL BREAK)
COLLINS: All right. Quickly we just want to give you a live look as we are getting it here in the CNN NEWSROOM. Obviously we are preparing for another day of the confirmation hearing, day three for Judge Sonia Sotomayor. Hoping to become Supreme Court justice. Taking the place of David Souter.
A couple of people to watch for today in the questioning. We're understanding from our Capitol Hill correspondent Brianna Keilar, John Cornyn is going to be asking some interesting questions, and of course, the brand-new senator out of Minnesota, Al Franken, will also have his turn at the microphone.
So we will be listening and watching all of this today. Today's hearing has been going on, as you know, for a couple of days. And so we want to get the very latest now from our national political correspondent Jessica Yellin.
JESSICA YELLIN, CNN NATL. POLITICAL CORRESPONDENT: Today new Senator Al Franken will be in the national spotlight. He is the most junior member of the Senate Judiciary Committee and will get a chance to grill Judge Sonia Sotomayor.
He is already making it clear to everyone that he takes this job very seriously.
(BEGIN VIDEOTAPE)
YELLIN (voice-over): Like a kid starting school, the Senate's newest member was the first to show up for Tuesday's Judiciary Committee hearing and he seems to be making friends. Seven days into his term, Senator Al Franken is striking a tone that's somber.
SEN. AL FRANKEN (D), MINNESOTA: I am concerned that Americans are facing new barriers to defending their individual rights.
YELLIN: And exceedingly deferential. To committee chairman Patrick Leahy.
FRANKEN: I have admired your strength and integrity.
YELLIN: To ranking Republican Jeff Sessions.
FRANKEN: I look forward to working over the years with you and my other Republican colleagues.
YELLIN: And to the committee as a whole.
FRANKEN: I know that I have a lot to learn from each of you.
YELLIN: Don't hold your breath waiting for a punch line. No jokes here. The former comedian barely smiled. It's the same serious Franken we saw during his race for the Senate seat. But that voice, it's instantly recognizable to fans of "Saturday Night Live."
FRANKEN: I'm good enough, I'm smart enough, and doggone it, people like me.
YELLIN: And that's still how visitors to the U.S. Capitol think of Al Franken.
(On camera): I say Senator Franken, you think?
UNIDENTIFIED FEMALE: Joke.
UNIDENTIFIED MALE: I'm strong enough, I'm good enough, and doggone it, people like me.
YELLIN: But they're flexible saying he can earn their respect.
UNIDENTIFIED MALE: Yes. Depends on what he does when he's in there. Not what he did before but what he's about now.
YELLIN: He'll have a chance to show his stuff when he begins questioning Sotomayor during the hearing today.
(END VIDEOTAPE)
YELLIN: Over the past few days, Senator Franken has been spotted stopping Capitol police to ask for directions. Clearly, he's the new guy on the job. Now Franken has said that he plans to lay low, take some time to learn, and he says, though he's the Democrats' 60th vote, he will not rubber-stamp the president's agenda.
COLLINS: That's our CNN's Jessica Yellin reporting.
I'm Heidi Collins in the CNN NEWSROOM. Thanks for joining us, everybody. The beginning of day three of the Sonia Sotomayor confirmation hearings now just minutes away. Wolf Blitzer up next.
(COMMERCIAL BREAK)
WOLF BLITZER, CNN ANCHOR: It's day three of the Sonia Sotomayor confirmation hearings before the Senate Judiciary Committee. Yesterday was the first day of actual questioning. The first day on Monday there were opening statements by all 19 members of the Judiciary Committee, followed by her opening statement.
Yesterday she answered questions for several hours. Today the questioning will continue, first up will be John Cornyn, the Republican senator from Texas, followed by Ben Cardin and some other Democrats, Tom Coburn, the Republican from Oklahoma.
Senator Patrick Leahy, he's already there. You see the back of his head. They're getting ready to convene this session momentarily, even though the room looks still sort of empty, a lot of folks are still arriving.
Let's check in with our senior congressional correspondent, Dana Bash.
So, Dana, set the scene for us on this -- it's supposed to be the third and final day that she will appear before this panel before other witnesses are brought in.
DANA BASH, CNN SR. CONGRESSIONAL CORRESPONDENT: It's supposed to be. I was told this morning that may slip into tomorrow depending on how late and long the questioning goes tonight. But in terms of the scene behind me, you see the two Republicans, the two remaining Republicans, John Cornyn, the Republican of Texas, and Tom Coburn of Oklahoma.
They're there ready to go because they certainly have a lot of questions. I talked to several Republican sources this morning, Wolf, who said that the theme they hope Republicans will really hone in on this morning is what they're calling the confirmation conversion, the idea that what they heard from Sonia Sotomayor all day yesterday talking about the fact that she will follow the law and it is only the law, that's it, really contradicts, they feel, many of the things she said over years and years, suggesting that race and gender do play a role in the judicial process. So -- in fact, John Cornyn, I spoke to an aide to him, he said that he's going to look at what he called the two Sonia Sotomayors on a host of issues. For example, in a speech she made to Duke University, suggesting that the Court of Appeals does actually make the law and now she says absolutely not, that is not the way she sees it.
So I think that is going to be a big focus of Republicans, and you know I think that -- I believe Sonia Sotomayor's coming in. Well, we're waiting to -- she is in the room. And I just want to give you a little bit of color about her.
I spoke to a White House aide who was with her this morning, Wolf, who said that they actually don't -- they're not going to shift strategy much, and from their perspective, why should they? They think that she did an exemplary job yesterday, that she really answered the questions and warmed up the room. That was a quote from this aide I spoke to who was with her this morning.
And I can tell you just a little more color, warming up the room, it's something that is going to be important because it is very, very cold in that room. It's like 60 to 65 degrees. People are freezing in that room. So that just gives you a sense of, you know, what she has to endure, what the senators have to endure not just in terms of the questioning, but the atmospheric and the -- literally the atmosphere of that room.
BLITZER: She's shaking hands and she's welcoming some of the folks who have come in. Clearly this is a moment that she's been rehearsing for, or preparing for. I guess it's fair to say preparing her whole life for to becoming a United States Supreme Court justice. That's obviously a huge, huge deal.
Let me tell our viewers that we have the best political team on television here with us. They're going to be with us throughout the day. Eight senators are scheduled to ask questions over the course of the next few hours. Each of them supposed to have 30 minutes, but some of them are being asked maybe you can go a little bit shorter.
There's the chairman, Patrick Leahy.
John King, two Republicans and six Democrats -- Democrats, the chairman would like them to not necessarily use all 30 minutes.
JOHN KING, ANCHOR, "STATE OF THE UNION": This is the United States Senate, Wolf. We've been in this town -- you only have to be here about a week to know that if you ask a United States senator to give back some time, the likely answer is probably not. So I think we're going to through most of the day today.
The Democrats would like to move at a quicker pace. Obviously key moments today will be the two remaining Republicans. They have had time to regroup overnight, as Dana just noted. Their big thing -- she's been on the bench for 17 years. They spent most of yesterday, the Republicans did, on two things. One case, the New Haven firefighters' case where they say so why did she -- did her biases, because she is a woman, a Latina, weigh in on her and on her speeches, and the Democrats say that's not proportionate to her record.
BLITZER: And we did hear her say repeatedly, Gloria Borger, yesterday that despite her own personal views and her own background, she is going to be guided strictly by the law.
GLORIA BORGER, CNN SENIOR POLITICAL ANALYST: All she follows is precedent and her life experience she said is important but you leave it at the door when you judge. You understand the way your life experience might influence you, but that's not how you judge. And -- so it's all about precedent and fidelity to the law.
BLITZER: You saw Jeff Sessions, the ranking Republican, the top Republican, on the Judiciary Committee, the Republican senator from Alabama, going over to welcome her on this, the third day of her appearance before this committee.
A lot of substantive issues, Jeff Toobin, did come up within the course of the questioning yesterday. But it was Lindsey Graham, the Republican senator from South Carolina, who really honed in on the most sensitive, most controversial issue when he said this.
(BEGIN VIDEO CLIP)
SEN. LINDSEY GRAHAM (R), SOUTH CAROLINA: Do you understand, ma'am, that if I had said anything like that, and my reasoning was that I'm trying to inspire somebody, they would have had my head. Do you understand that?
SOTOMAYOR: I do understand how those words could be taken that way, particularly if read in isolation.
GRAHAM: Well, I don't know how she could take if Lindsey Graham said that "I will make a better senator that -- "X" -- because of my experience as a Caucasian male, makes me better able to represent the people of South Carolina, and my opponent was a minority." It would make national news, and it should.
(END OF COVERAGE)
BLITZER: All right. We're going to assess that and a lot more. But the chairman had just hit the gavel. Just went down, so let's listen in.
(JOINED IN PROGRESS)
SEN. PATRICK LEAHY (D), JUDICIARY CHAIRMAN: -- you back and your -- and your family.
Judge Sotomayor, yesterday, you answered questions from 11 senators. Frankly, I freely demonstrated your commitment to the fair and impartial application of law. You certainly demonstrated your composure and patience and your extensive legal knowledge. Today, we'll have questioning from the remaining eight members of the committee, and then just to set the schedule, once we have finished that questioning, we will arrange a time to go into the traditional -- something we do every time for the street nominee -- traditional closed-door session which is usually not very lengthy, and then go back to others.
I've talked about Senator Sessions. We will then go to a second round of questions of no more than 20 minutes each. I've talked with a number of senators who have told me they will not use anywhere near that 20 minutes, although every senator has the right to do it. And I would hope we might be able to wrap it up.
But we're going to go to Senator Cornyn, himself a former member of the Texas Supreme Court and former attorney general.
LEAHY: And, Senator Cornyn, it's yours.
CORNYN: Thank you, Mr. Chairman.
Good morning, Judge.
SOTOMAYOR: Good morning, Senator. It's good to see you again.
CORNYN: Good to see you. I recall, when we met in my office, you told me how much you enjoy the back-and-forth that lawyers and judges do. And I appreciate the good humor and attitude that you've brought to this. And I very much appreciate your -- your willingness to serve on the highest court in the land.
I'm afraid that sometimes in the past these hearings have gotten so downright nasty and contentious that some people are dissuaded from willingness to serve, which I think is a great -- is a great tragedy. And, of course, some have been filibustered. They have been denied the opportunity to have an up-or-down vote on the Senate floor.
I told you, when we visited my office, that's not going to happen to you if I have anything to say about it. You will get that up-or- down vote on the Senate floor.
But I want to ask your assistance this morning to try to help us reconcile two pictures that I think have emerged during the course of this hearing. One is, of course, as Senator Schumer and others have talked about, your lengthy tenure on the federal bench as a trial judge and court of appeals judge.
And then there's the other picture that has emerged that -- from your speeches and your other writings. And I need your help trying to reconcile those two pictures, because I think a lot of people have -- have wondered about that.
And I guess the reason why it's even more important that we understand how you reconcile some of your other writings with your judicial experience and tenure as a fact that, of course, now you will not be a lower court judge subject to the appeals to the Supreme Court. You will be free as a United States Supreme Court justice to basically do what you want with no court reviewing those decisions, harkening back to the quote we started with during my opening statement about the Supreme Court being infallible only because it's final.
So I want to just start with the comments that you made about the "wise Latina" speech that, by my count, you made at least five times between 1994 and 2003. You indicated that this was really -- and please correct me if I'm wrong, I'm trying to quote your words -- a, quote, "failed rhetorical flourish that fell flat."
I believe at another time you said they were, quote, "words that don't make sense," close quote. And another time, I believe you said it was, quote, "a bad idea," close quote.
Am I accurately characterizing your thoughts about the use of that -- of that phrase that has been talked about so much?
SOTOMAYOR: Yes, generally. But the point I was making was that Justice O'Connor's words, the ones that I was using as a platform to make my point about the value of experience generally in the legal system, was that her words literally and mine literally made no sense, at least not in the context of what judges do or -- what judges do.
SOTOMAYOR: I didn't and don't believe that Justice O'Connor intended to suggest that, when two judges disagree, one of them has to be unwise. And if you read her literal words -- that wise old men and wise old women would come to the same decisions in cases -- that's what the words would mean, but that's clearly not what she meant. And if you listen to my words, it would have the same suggestion that only Latinos would come to wiser decisions.
But that wouldn't make sense in the context much my speech either because I pointed out in the speech that eight, nine white men had decided Brown v. Board of Education.
And I know noted in a separate paragraph of the speech that -- that no one person speaks in the voice of any group. So my rhetorical flourish, just like hers, can't be read literally. It had a different meaning in the context of the entire speech
CORNYN: But, Judge, she said a wise man and a wise woman would reach the same conclusion. You said that a wise Latina woman would reach a better conclusion than a male counterpart.
What I'm confused about, are you standing by that statement? Or are you saying that it was a bad idea and you -- are you disavowing that statement?
SOTOMAYOR: It is clear from the attention that my words have gotten and the manner in which it has been understood by some people that my words failed. They didn't work. The message that the entire speech attempted to deliver, however, remains the message that I think Justice O'Connor meant, the message that higher nominees, including Justice Alito meant when he said that his Italian ancestry, he considers when he's deciding discrimination cases. I don't think he meant -- I don't think Justice O'Connor meant that personal experiences compel results in any way. I think life experiences generally, whether it's that I'm a Latina or was a state prosecutor or have been a commercial litigator or been a trial judge and an appellate judge, that the mixture of all of those things, the amalgam of them help me to listen and understand.
But all of us understand because that's the kind of judges we have proven ourselves to be, we rely on the law to command the results in the case. So when one talks about life experiences, and even in the context of my speech, my message was different than I understand my words have been understood by some.
CORNYN: So you -- do you stand by your words of yesterday when you said it was a failed rhetorical flourish that fell flat? That they are words that don't make sense and that they're a bad idea?
SOTOMAYOR: I stand by the words. It fell flat. And I understand that some people have understood them in a way that I never intended. And I would hope that, in the text of the speech, that they would be understood.
CORNYN: Well, you spoke about the law students to whom these comments from frequently directed and your desire to inspire them. If, in fact, the message that they heard was that the quality of justice depends on the sex, race, or ethnicity of the judge, is that an understanding that you would regret?
SOTOMAYOR: I would regret that because, for me, the work I do with students -- and it's just not in the context of those six speeches. As you know, I give dozens more speeches to students all the time and to lawyers of all backgrounds, and I give -- and have spoken to community groups of all type.
And what I do in each of those situations is to encourage both students and, as I did when I spoke to new immigrants that was admitting as students, to try to encourage them to participate on all levels of our society. I tell people that that's one of the great things about America, that we can do so many different things and participate so fully in all of the opportunities America presents.
And so the message that I deliver repeatedly and as the context of all of my speeches is I've made it. So can you. Work hard at it. Pay attention to what you're doing, and participate.
CORNYN: Let me ask about another speech you gave in 1996 that was published in the Suffolk University Law Review, where you wrote what appears to be an endorsement of the idea that judges should change the law. You wrote, quote, "Change, sometimes radical change, can and does occur in a legal system that serves a society whose social policy itself changes." You noted, with apparent approval, that, quote, "A given judge or judges may develop a novel approach to a specific set of facts or legal framework that pushes the law in a new direction," close quote.
Can you explain what you meant by those words? SOTOMAYOR: The title of that speech was, "Returning Majesty To The Law." As I hope I communicated in my opening remarks, I'm passionate about the practice of law and judging, passionate in sense of respecting the rule of law so much. The speech was given in the context of talking to young lawyers and saying, "Don't participate in the cynicism that people express about our legal system."
CORNYN: What kind of ...
SOTOMAYOR: I ...
CORNYN: Excuse me. I'm sorry. I didn't mean to interrupt you.
SOTOMAYOR: And I was encouraging them not to fall into the trap of calling decisions that the public disagrees with, as they sometimes do, activism or using other labels, but to try to be more engaged in explaining the law and the process of law to the public.
And in the context of the words that you quoted to me, I pointed out to them explicitly about evolving social changes, that what I was referring to is Congress is passing new laws all the time. And so whatever was viewed as settled law previously will often get changed because Congress has changed something.
I also spoke about the fact that society evolves in terms of technology and other developments, and so the law is being applied to a new set of facts. In terms of talking about different approaches in law, I was talking about the fact that there are some cases that are viewed as radical, and I think I mentioned just one case, Brown v. Board of Education, and explaining and encouraging to -- them to explain that process, too.
SOTOMAYOR: And there are new directions in the law in terms of the court. The court -- Supreme Court is often looking at its precedents and considering whether, in certain circumstances whose precedent is owed, deference for very important reasons, but the court takes a new direction. And those new directions rarely, if ever, come at the initiation of the court. They come because lawyers are encouraging the court to look at a situation in a new way, to consider it in a different way.
What I was telling those young lawyers is: Don't play into people's skepticism about the law. Look to explain to them the process.
I also, when I was talking about returning majesty to the law, I spoke to them about what judges can do. And I talked about, in the second half of that speech, that we had an obligation to ensure that we were monitoring the behavior of lawyers before us so that, when questionable, ethical, or other conduct could bring disrepute to the legal system, that we monitor our lawyers, because that would return a sense...
CORNYN: Judge, if you let me -- I think we're straying away from the question I had talking about oversight of lawyers. Would you explain how, when you say judges should -- or, I'm sorry, let me just ask. Do you believe that judges ever change the law? I take it from your statement that you do.
SOTOMAYOR: They change -- they can't change law. We're not lawmakers. But we change our view of how to interpret certain laws based on new facts, new developments of doctrinal theory, considerations of whether -- what the reliance of society may be in an old rule.
We think about whether a rule of law has proven workable. We look at how often the court has affirmed a prior understanding of how to approach an issue. But in those senses, there's changes by judges in the popular perception that we're changing the law.
CORNYN: In another speech in 1996, you celebrated the uncertainty of the law. You wrote that the law is always in a, quote, "necessary state of flux," close quote.
You wrote that the law judges declare is not, quote, "a definitive -- capital L -- Law that would make -- that may -- many would like to think exists," close quote, and, quote, "that the public fails to appreciate the importance of indefiniteness in the law." Can you explain those statements? And why do you think indefiniteness is so important to the law?
SOTOMAYOR: It's not that it's important to the law as much as it is that it's what legal cases are about. People bring cases to courts because they believe that precedents don't clearly answer the fact situation that they're presenting in their individual case. That creates uncertainty; that's why people bring cases.
And they say, "Look, the law says this, but I'm entitled to that." "I have this set of facts that entitle me to relief under the law." It's the entire process of law. If law was always clear, we wouldn't have judges. It's because there is indefiniteness not in what the law is, but its application to new facts that people sometimes feel it's unpredictable.
SOTOMAYOR: That speech, as others I've given, is an attempt to encourage judges to explain to the public more of the process. The role of judges is to ensure that they are applying the law to those new facts, that they're interpreting that law with Congress' intent, being informed by what precedents say about the law and Congress' intent and applying it to the new facts.
But that's what the role of the courts is. And, obviously, the public is going to become impatient with that if they don't that process. And I'm encouraging lawyers to do more work in explaining the system, in explaining what we are doing as courts.
CORNYN: In a 2001 speech at Berkeley, you wrote, quote, "whether borne from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague, Judge Sederbaum, our gender and national origins may and will make a difference in our judging," close quote.
The difference -- a difference is physiological if it relates to the mechanical, physical, or biochemical functions of the body, as I understand the word. What do you mean by that?
SOTOMAYOR: I was talking just about that. There are, in the law, there have been upheld, in certain situations, that certain job positions have a requirement for a certain amount of strength or other characteristics that may be the -- a person who fits that characteristic can have that job.
But there are differences that may affect a particular type of work. We do that all the time.
CORNYN: We're talking about judging.
SOTOMAYOR: You need to be a pilot who has good eyesight.
CORNYN: We're not talking about pilots. We're talking about judging. Right?
SOTOMAYOR: No, no, no. But what I'm -- was talking about there because the context of that was talking about the difference in the process of judging. And the process of judging, for me, is what life experiences brings to the process. It helps you listen and understand. It doesn't change what the law is or what the law commands.
My life experience, as a prosecutor, may help me listen and understand an argument in a criminal case. It may have no relevancy to what happens in a anti-trust suit. It's just a question of the process of judging. It improves both the public's confidence that there are judges from a variety of different backgrounds on the bench because they feel that all issues will be more -- better at least addressed. Not that it's better addressed, but that it helps that process of feeling confident that all of arguments are going to be listened to and understood.
CORNYN: So you stand by the comment or the statement that inherent physiological differences will make a difference in judging?
SOTOMAYOR: I'm not sure -- I'm not sure exactly where that would play out, but I was asking a hypothetical question in that paragraph. I was saying, look, we just don't know. If you read the entire part of that speech, what I was saying is let's ask the question. That's what all of these studies are doing. Ask the question if there's a difference.
Ignoring things and saying, you know, it doesn't happen isn't an answer to a situation. It's consider it. Consider it as a possibility and think about it. But I certainly wasn't intending to suggest that there would be a difference that affected the outcome. I talked about there being a possibility that it could affect the process of judging.
CORNYN: As you can tell, I'm struggling a little bit to understand how your statement about physiological differences could affect the outcome or affect judging and your stated commitment to fidelity to the law as being your sole standard and how any litigant can -- can know where that will end. But let me ask you on another topic. There was a Washington Post story on May the 29th, 2009, where -- that starts out saying, "The White House scrambled yesterday to assuage worries from liberal groups about Judge Sonia Sotomayor's scant record on abortion rights." And White House -- it goes on to say, "White House press secretary said the president did not ask Sotomayor specifically about abortion rights during their interview."
Is that correct?
SOTOMAYOR: Yes, it's absolutely correct. I was asked no questions by anyone, including the president, about my views on any specific legal issue.
CORNYN: Do you know then on what basis, if that's the case -- and I accept your statement -- on what basis that White House officials would subsequently send a message that abortion rights groups do not need to worry about how you might rule in a challenge to Roe v. Wade?
SOTOMAYOR: No, sir, because you just have to look at my record to know that, in the cases that I addressed on all issues, I follow the law.
CORNYN: On what basis would George Pavia, who was apparently a senior partner in the law firm that hired you as a corporate litigator, on what basis would -- would he say that he thinks support of abortion rights would be in line with your generally liberal instincts?
He's -- he's quoted in his article saying, quote, "I can guarantee she'll be for abortion rights," close quote. On what basis would Mr. Pavia say that, if you know?
SOTOMAYOR: I have no idea, since I know for a fact I never spoke to him about my views on abortion, frankly, on my views on any social issue. George was the -- was the head partner of my firm, but our contact was not on a daily basis.
I have no idea why he's drawing that conclusion, because if he looked at my record, I have ruled according to the law in all cases addressed to the issue of termination of abortion rights -- of women's right to terminate their pregnancy. And I voted in cases in which I upheld the application of the Mexico City policy, which was a policy in which the government was not funding certain abortion-related activities.
CORNYN: Do you agree -- do you agree with his statement that you have generally liberal instincts?
SOTOMAYOR: If he was talking about the fact that I served on a particular board that promoted equal opportunity for people, the Puerto Rican Legal Defense and Education Fund, then you could talk about that being a liberal instinct in the sense that I promote equal opportunity in America and the attempts to assure that. But he has not read my jurisprudence for 17 years, I can assure you. He's a corporate litigator. And my experience with corporate litigators is that they only look at the law when it affects the case before them.
(LAUGHTER)
CORNYN: Well, I hope, as you suggested, not only liberals endorse the idea of equal opportunity in this country -- that's a -- that's a, I think, bedrock doctrine that undergirds all of our -- all of our law.
But that brings me, in the short time I have left, to the New Haven firefighter case.
As you know, there are a number of the New Haven firefighters who are here today and will testify tomorrow. And I have to tell you, your Honor, as a former judge myself, I was shocked to see that the sort of treatment that the three-judge panel you served on gave to the claims of these firefighters by an unpublished summary order which has been pointed out in the press would not likely to be reviewed or even caught by other judges on the Second Circuit except for the fact that Judge Cabranes read about a comment made by the lawyer representing the firefighters in the press that the court gave short shrift to the claims of the firefighters.
Judge Cabranes said the core issue presented by this case, the scope of a municipal employer's authority to disregard examination results based solely on the successful applicant is not addressed by any precedent of the Supreme Court or our circuit.
And looking at the -- looking at the unpublished summary order, this three-judge panel of the Second Circuit doesn't cite any legal authority whatsoever to support its conclusion. Can you explain to me why -- why you would deal with it in a way that appears to be so -- well, dismissive may be too strong a word -- but avoid the very important claims that the Supreme Court, ultimately, reversed you on that were raised by the firefighters appeal?
SOTOMAYOR: Senator, I can't speak to what brought this case to Judge Cabranes' attention. I can say the following, however. When parties are dissatisfied with a panel decision, they can file a petition for rehearing and bond (ph). And, in fact, that's what happened in the Ricci case.
Those briefs are routinely reviewed by judges. And so publishing by summary order or addressing an issue by summary order or by published opinion doesn't hide the party's claims from other judges. They get the petitions for rehearing.
Similarly, parties, when they're dissatisfied with what a circuit has done, file petitions for certiorari, which is a request for the Supreme Court to review a case. And so the court looks at that as well. And so regardless of how a circuit decide a case, it's not a question of hiding it from others. With respect to the broader question that you're raising, which is why do you do it by summary order or why do you do it in a published opinion or in a per curium, the question or the practice is that about 75 percent of circuit court decisions are decided by summary order, in part, because we can't handle the volume of our work if we were writing long decisions in every case. But, more importantly, because not every case requires a long opinion if a district court opinion has been clear and thorough on an issue.
SOTOMAYOR: And in this case, there was a 78-page decision by the district court. It adequately explained the questions that the Supreme Court addressed and reviewed.
And so, to the extent that a particular panel considers that an issue has been decided by existing precedent, that's a question that the court above can obviously revisit, as it did in Ricci, where it looked at it and said, well, we understand what the circuit did, we understand what existing law is, but we should be looking at this question in a new way. That's the job of the Supreme Court.
CORNYN: But, Judge, even the district court admitted that a jury could rationally infer that city officials worked behind the scenes to sabotage the promotional examinations, because they knew that the exams -- they knew that, were the exams certified, the mayor would incur the wrath of Reverend Boise Kimber and other influential leaders of New Haven's African-American community.
So you decided that, based on their claim of potential disparate impact liability, that there's no recourse -- that the city was justified in disregarding the exams and thus denying these firefighters, many of whom suffered hardship in order to study and to prepare for these examinations and were successful, only to see that hard work and effort disregarded and not even acknowledged in the court's opinion.
And, ultimately, as you know, the Supreme Court said that you just can't claim potential disparate impact liability as a city and then deny someone a promotion based on the color of their skin. There has to be a strong basis in evidence.
But you didn't look to see whether there was a basis in evidence to the city's claim. Your summary opinion -- unpublished summary order didn't even discuss that. Don't you think that these firefighters and other litigants deserve a more detailed analysis of their claims and an explanation for why you ultimately deny their claim?
SOTOMAYOR: As you know, the court's opinion issued after discussions en banc recognize, as I do, the hardship that the firefighters experienced. That's not been naysaid by anyone.
The issue before the court was a different one, and the one that the district court addressed was what decision the decision-makers made, not what people behind the scenes wanted the decision-makers to make, but what they were considering. And what they were considering was the state of the law at the time and in an attempt to comply with what they believe the law said and what the panel recognized as what the Second Circuit precedent said, that they made a choice under that existing law.
The Supreme Court in its decision set a new standard by which an employer and lower court should review what the employer is doing by the substantial evidence test. That test was not discussed with the -- with the panel. It wasn't part of the arguments below. That was a decision by the court borrowing from other areas of the law and saying, "We think this would work better in this situation."
CORNYN: My time's up. Thank you.
LEAHY: Thank you. Thank you very much.
I note in the record -- we'll put in the record a letter of support for Judge Sotomayor's nomination from the United States Hispanic Chamber of Commerce on behalf of its 3 million Hispanic-owned business members, 60 undersigned organizations, including the El Paso Hispanic Chamber of Commerce, the Greater Dallas Hispanic Chamber of Commerce, the Houston Hispanic Chamber of Commerce, Odessa Hispanic Chamber of Commerce and a similar letter from the Arizona Hispanic Chamber of Commerce. I meant to put those in the record before. We'll put them in the record now.
SESSIONS: Mr. Chairman?
LEAHY: Yes?
SESSIONS: I would offer a letter for the record from the National Rifle Association in which they express serious concern about the nomination of Judge Sonia Sotomayor. Also, I notice that the head of that organization, Mr. LaPierre, wrote an article this morning on raising increased concern after yesterday's testimony.
Ask I would also offer for the record a letter from Mr. Richard Land, the Ethics and Religious Liberty Commission of the Southern Baptist Convention, also raising concerns.
LEAHY: And without objection, those will be made part of the record. And we will -- I yield to Senator Cardin.
CARDIN: Thank you, Mr. Chairman.
And, Judge Sotomayor, good morning.
(END OF COVERAGE)
BLITZER: All right. So there you got a little politics in between the questioning, in this, the second day of questioning for Sonia Sotomayor.
